Exhibit 10.56
RESTRICTED STOCK AGREEMENT
RESTRICTED STOCK AGREEMENT (this "Agreement"), dated as of May
26, 2000 (the "Effective Date"), by and between Harveys Casino Resorts, a Nevada
corporation (the "Company"), and Xxxx X. XxXxxxxxxx (the "Executive"), an
employee of the Company or a Subsidiary of the Company.
Pursuant to the Company's 1999 Omnibus Stock Incentive Plan
(the "Plan"), the Board of Directors of the Company (the "Board"), as the
Administrator of the Plan, has determined that the Executive is to be granted a
Restricted Stock award consisting of additional shares of Class A Common Stock
and Class B Common Stock (the "Restricted Shares"), on the terms and conditions
set forth herein, and hereby grants such Restricted Stock award.
Any capitalized terms not defined herein shall have their
respective meanings set forth in the Plan.
1. TERMS OF RESTRICTED STOCK AWARD. (a) The Restricted Stock
award entitles the Executive as of the Date of Grant to receive 130 shares of
Class A Common Stock and 12,798 shares of Class B Common Stock (the "Restricted
Shares"), subject to the terms and conditions of this Agreement.
(b) Subject to the rights and obligations of
Executive pursuant to that certain Stockholders Agreement, dated February 2,
1999, by and among the Company, Executive and the other parties thereto (the
"Stockholders Agreement"), and except as provided in Section 1(c) below, the
Restricted Shares may not be sold, assigned, transferred, pledged, hypothecated
or otherwise disposed of in any manner or under any circumstances (the "Transfer
Restrictions").
(c) The Restricted Shares shall vest to the extent
that BOTH of the sets of conditions set forth at 1(c)(i) AND 1(c)(ii) are met,
except to the extent that provisions set forth at 1(c)(iv) - 1(c)(vii) apply:
i) Time-based Schedule. Provided that such
Restricted Shares have vested pursuant to 2(c)(ii) below, the Transfer
Restrictions shall lapse as to 20% of the Restricted Shares on each of
the first five anniversaries of February 2, 1999, regardless of whether
Executive was employed by the Company on such date.
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ii) Performance-based Vesting. The first 25%
of the Restricted Stock Award shall immediately vest as of the Date of
Grant. The remaining 75% of the Restricted Stock Award shall vest in
annual one-third increments on each of the first three anniversaries
of February 2, 1999, regardless of whether Executive was employed by
the Company on such date, PROVIDED THAT the applicable performance
criteria described immediately below are satisfied:
(1) For the fiscal year ended November 30, 2000,
1/3 of the remaining 75% of the Restricted
Shares (25% of the total Restricted Stock
Award) shall vest provided that Bluffs Run
Casino ("Bluffs Run") generates at least
$34,000,000 of EBITDA (the "2000 Target").
(2) For the fiscal year ended November 30, 2001,
1/3 of 75% of the Restricted Shares (25% of
the total Restricted Stock Award) shall
vest provided that Bluffs Run generates at
least $35,000,000 of EBITDA (the "2001
Target").
(3) For the fiscal year ended November 30, 2002,
1/3 of 75% of the Restricted Shares (25% of
the total Restricted Stock Award) shall
vest provided that Bluffs Run generates at
least $36,000,000 of EBITDA (the "2002
Target" and, together with the 2000 Target
and the 2001 Target, each a "Performance
Target").
(4) The 2001 Target and the 2002 Target shall be
subject to equitable adjustment for any
annual increase in state gaming taxes in
such fiscal year and for revenue enhancing
capital expenditures made during the
preceding fiscal year.
(5) In the event that Bluffs Run fails to meet a
Perfor xxxxx Target in a fiscal year (a
"Shortfall Year"), no portion of the
Restricted Shares shall vest in such
Shortfall Year; PROVIDED, HOWEVER, that if
the Performance Target for the year
immediately following a
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Shortfall Year is exceeded by at least the
amount of the shortfall in the Shortfall
Year (the difference between the Shortfall
Year's Performance Target and the EBITDA
actually generated by Bluffs Run in such
Shortfall Year), then the amount of
Restricted Shares that would have vested in
the Shortfall Year if the Performance Target
had been satisfied, shall vest retroactively
as if the Performance Target in the
Shortfall Year had been satisfied.
iii) the Restricted Shares and such lapse
shall be subject to the Special Forfeiture Provisions of Section 6(b),
such that the Transfer Restrictions shall continue to apply to the
Restricted Shares for so long and to the extent that the Restricted
Shares shall be subject to forfei ture pursuant to the Special
Forfeiture Provisions. Those Restricted Shares which, as of any date,
have vested pursuant to the first clause of the provisions of this
Section 1(c)(i) and 1(c)(ii) but remain subject to the Special
Forfeiture Provisions shall be referred to herein as "Lapsed Restricted
Shares."
iv) upon the occurrence of a Change in
Control at any time prior to the effective date (as determined under
the Employment Agreement) of Executive's termination of employment
with the Company for any or no reason, the Transfer Restrictions shall
immediately lapse as to 100% of the Restricted Shares and the Special
Forfeiture Provisions shall immediately expire, all as of the date of
the change in control.
v) if Executive's employment with the
Company is terminated (A) by the Company without Cause (as defined in
that certain Employment Agreement between the Executive and the
Company dated February 2, 1999, the "Employment Agreement") within the
12 month period immediately preceding a Change in Control (or such
longer period, not to exceed 18 months prior to such Change in
Control, during which significant discussions or other material action
regarding such Change in Control occurred) at the request, directly or
indirectly, of a third party who has taken steps reasonably calculated
to effect a Change in Control or otherwise in connection with, or in
anticipation of a Change in Control, or (B) by Executive for Good
Reason (as defined in the Employment Agreement) if the grounds
constituting Good Reason occur as the result of a
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Change in Control or within the above-referenced time frame at the
request, directly or indirectly, of such a third party or otherwise in
connection with, or in anticipation of a Change in Control, (i) the
Restricted Shares shall be deemed to have immediately vested and become
exercisable as to 100% of the Restricted Shares as of the effective
date of such Change in Control and (ii) the Special Forfeiture
Provisions shall be deemed to have immediately expired as of the
effective date of such Change in Control.
vi) if Executive's employment with the
Company is terminated by the Company without Cause or by Executive for
Good Reason (as defined in the Employment Agreement), the Restricted
Shares shall immediately vest and become exercisable and the Special
Forfeiture Provisions shall immediately expire as to that number of
Restricted Shares that would have vested pursuant to the provisions of
this Section 1(c)(i) and 1(c)(ii) had Executive's employment continued
without interruption through the date that is 18 months following the
effective date of such termination as determined under the Employment
Agreement.
vii) Effect of the Iowa Referendum.
Notwithstanding any other provision herein, no Restricted Shares and no
Lapsed Restricted Shares may be sold, assigned, transferred, pledged,
hypothecated or otherwise disposed of prior to Referendum Approval (as
such term is defined in Section 2.2.1 of that certain Purchase and Sale
Agreement and Joint Escrow Instructions dated August 31, 1999, by and
between HBR Realty Company, Inc. and Iowa West Racing Association),
except to the extent that vesting is accelerated pursuant to Sections
2(c)(iv) and 2(c)(v) above. In the event that the Referendum Approval
does not occur, the Executive shall immediately forfeit all Restricted
Shares and all Lapsed Restricted Shares awarded under this agreement,
except to the extent that vesting was accelerated pursuant to Sections
2(c)(iv) and 2(c)(v) above prior to defeat of the Referendum.
(d) From and after the Date of Grant and for so long
as the Restricted Shares are held by or for the benefit of the Executive, except
as limited by the Stockholders Agreement, the Transfer Restrictions and the
Special Forfeiture Provisions, the Executive shall have all the rights of a
stockholder of the Company with respect to the Restricted Shares, including but
not limited to the right to receive dividends on and the right to vote such
shares.
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2. CERTAIN DEFINITIONS. (a) For purposes of this Agreement,
"Initial Public Offering" shall mean the closing of a public offering pursuant
to an effective registration statement under the Securities Act of 1933, as
amended (the "Securities Act") covering shares of the Company's Common Stock,
which shares are approved for listing or quotation on the New York Stock
Exchange, American Stock Exchange or Nasdaq National Market.
(b) For purposes of this Agreement, "Change in
Control" means the occurrence of one or more of the following events:
i) the sale, lease, transfer, conveyance or
other disposition, in one or a series of related transactions, of all
or substantially all of the assets of the Company and its Subsidiaries,
taken as a whole;
ii) the adoption by the Company's
stockholders of a plan of liquidation or dissolution of the Company;
iii) prior to the time the Company or any
Parent Corporation completes an Initial Public Offering, the Company
becomes aware (by way of a report or any other filing pursuant to
Section 13(d) of the Exchange Act, proxy vote, written notice or
otherwise) of the acquisition by any "Person" or related group
(within the meaning of Section 13(d)(3) or Section 14(d)(2) of the
Exchange Act, or any successor provision to either of the foregoing,
including any "group" acting for the purpose of acquiring, holding or
disposing of securities within the meaning of Rule 13d-5(b)(1) under
the Exchange Act), other than a group consisting of the Principals and
their Related Parties, in a single transaction or in a related series
of transactions, by way of merger, consolidation or other business
combination or purchase of direct or indirect beneficial ownership
(within the meaning of Rule 13d-3 under the Exchange Act, or any
successor provision) of 50% or more of the total voting power
entitled to vote in the election of the Board of Directors of the
Company or such other Person surviving the transaction;
iv) subsequent to the time the Company or
any Parent Corporation completes an Initial Public Offering, the
Principals and their Related Parties shall directly or indirectly
beneficially own shares of capital stock representing less than 25% of
the total voting power entitled to vote in the election of the Board
of Directors of the Company and either
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(A) any other Person directly or indirectly beneficially owns shares of
capital stock representing voting power in excess of the voting power
represented by shares of capital stock owned by the Principals and
their Related Parties or (B) individuals who were the voting members of
the Company's Board of Directors at the beginning of any two year
period commencing subsequent to the Initial Public Offering (together
with any new voting directors whose election or appointment by such
board or whose nomination for election by the shareholders of the
Company was approved by a vote of a majority of the directors then
still in office who were either directors at the beginning of such
period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the
Company's Board of Directors then in office.
(c) For purposes of this Agreement, the following
terms shall have the meanings as set forth below:
i) "Exchange Act" means the Securities
Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder;
ii) "Principals" means Colony Investors III,
L.P., Colony Capital, Inc. and any of their respective affiliates and
any of the Company's officers and directors; and
iii) "Related Party" with respect to any
Principal means (A) any controlling stockholder, 80% (or more) owned
Subsidiary, or spouse or immediate family member (in the case of an
individual) of such Principal or (B) any trust, corporation,
partnership or other entity, the beneficiaries, stockholders,
partners, owners or Persons beneficially holding an 80% or more
controlling interest of which consist of such Principal and/or such
other Persons referred to in the immediately preceding clause (A).
(d) For purposes of this Agreement, "Fair Market
Value" (when capitalized, unless the context clearly indicates otherwise) means,
as of any given date, (A) if the Common Stock is publicly traded, the closing
sale price of the Common Stock on such date (or the nearest preceding date on
which the Common Stock was traded) as reported in the Western Edition of THE
WALL STREET JOURNAL, or (B) if the Common Stock is not publicly traded, the fair
market value
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of the Common Stock as determined in accordance with the procedures set forth
below, in each case based on the per share value of the Company as a whole as of
the relevant date, without any discount for the sale of a minority interest and
without considering lack of liquidity, including transfer and other restrictions
on the Common Stock:
i) The Board shall determine the fair market
value of the Common Stock in good faith, using commercially reasonable
methods and at the Company's sole expense, PROVIDED, that if Executive
is a member of or non-voting observer on the Board, Executive shall
recuse himself from all deliberations of the Board regarding such
determination, and except as otherwise provided herein shall not be
entitled to receive or be provided access to any minutes or other
records of the Board with respect to such determination. The Board
shall communicate the per share valuation as so determined in writing
to Executive within 20 business days following the date written notice
is provided or the Board takes cognizance of the need to determine the
Fair Market Value of the Common Stock, and upon Executive's request,
the Board shall provide Executive appropriate supporting documentation
regarding the methods, assumptions and other bases used in arriving at
such valuation. If acceptable to Executive, the fair market value of
the Common Stock shall be as so determined.
ii) If the fair market value as determined
under (i) is not acceptable to Executive, Executive shall determine
the fair market value of the Common Stock in good faith, using
commercially reasonable methods and at Executive's sole expense, and
shall communicate the per share valuation as so determined in writing
to the Board within 20 business days following the Board's
communication to Executive of the per share valuation pursuant to (i)
above and, upon the Board's request, Executive shall provide to the
Board appropriate supporting documentation regarding the methods,
assumptions and other bases used in arriving at such valua tion. If
acceptable to the Board, the fair market value of the Common Stock
shall be as so determined.
iii) If the fair market value as determined
under (ii) is not acceptable to the Board, the Board and Executive
shall then negotiate in good faith to agree upon the fair market value
of the Common Stock, based on the valuations under (i) and (ii) above.
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iv) If the Board and Executive shall be
unable by the foregoing means to agree upon the fair market value of
the Common Stock within ten business days after the Board has been
advised of Executive's valuation, the issue shall then be submitted
to binding arbitration in Las Vegas, Nevada according to the rules and
procedures of the American Arbitration Association. The Company and
Executive shall each submit to the arbitrator their valuations under
(i) and (ii) above, together with all supporting documentation
regarding the methods, assumptions and other bases used in arriving at
such valuation. The arbitrator shall then be instructed to choose
which of the two valuations more closely reflects the fair market
value of the Common Stock, and shall not have the right to choose a
third valuation as the appropriate fair market value of the Common
Stock. The party whose valuation is not so chosen by the arbitrator
shall pay any and all costs and expenses of the arbitration (but not
the initial valuation of the other party), including without
limitation reasonable attorneys' fees and other fees incurred by the
prevailing party in such arbitration. Judgment may be entered on the
arbitrator's determination and award.
3. DEFERRED COMPENSATION ARRANGEMENT WITH RESPECT TO
RESTRICTED SHARES. Notwithstanding anything herein to the contrary, at any time
prior to the occurrence of a Distribution Event (as defined in the Deferred
Compensation Agreement between Executive and the Company as in effect as of the
date hereof, or as may be amended from time to time (the "Deferred Compensation
Agreement")) that the Transfer Restrictions and Special Forfeiture Restrictions
would otherwise lapse with respect to any portion of the Restricted Shares and
result in the recognition of income by Executive, such Restricted Shares (the
"Deferred Shares") shall be cancelled and an equivalent number of Deemed
Deferred Shares (as defined in the Deferred Compensation Agreement) shall be
added to the Restricted Stock Sub-Account under the Deferred Compensation
Agreement.
4. ADJUSTMENTS. In the event of any merger, reorganization,
consolidation, recapitalization, stock dividend, stock split or similar change
affecting the Common Stock, an equitable substitution or proportionate
adjustment shall be made in the kind and number of Restricted Shares, as may be
determined by the Board in good faith.
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5. RESTRICTED SHARES SUBJECT TO STOCKHOLDERS AGREEMENT. The
Executive and the Restricted Shares shall at all times and in all respects be
subject to the Stockholders Agreement, the provisions of which shall be deemed
to be incorporated into this Agreement.
6. EFFECT OF TERMINATION OF EMPLOYMENT; SPECIAL FORFEITURE
PROVISIONS. (a) Upon the termination of Executive's employment with the Company
under any circumstances and for any or no reason (including without limitation
by reason of the death or Disability of the Executive, except under
circumstances where Section 1(c)(v) and 1(c)(vi) are applicable, the Executive
shall forfeit all Restricted Shares as to which the Transfer Restrictions have
not lapsed as of such date of termination.
(b) In addition, in the event the Executive's
employment with the Company is terminated prior to the Forfeiture Provision
Expiration Date (as defined below) (i) at any time prior to the fifth
anniversary of the Date of Grant by the Executive other than for Good Reason or
(ii) at any time by the Company for Cause (each as defined above), Executive
shall thereupon forfeit that portion of the Lapsed Restricted Shares equal to
the Applicable Reduction Percentage (as defined below).
i) The "Applicable Reduction Percentage"
shall mean (A) at all times prior to the occurrence of an Initial
Public Offering, two-thirds and (B) at all times following an Initial
Public Offering but prior to the occurrence of a 50% Colony Sell-Down,
one-third.
ii) The Special Forfeiture Provisions shall
expire in their entirety as of the date of (x) the Company's Initial
Public Offering, if such Initial Public Offering occurs subsequent to
a 50% Colony Sell-Down, (y) a 50% Colony Sell-Down that occurs at any
time subsequent to the Company's Initial Public Offering or (z) a
Change in Control (the "Forfeiture Provision Expiration Date").
iii) A "50% Colony Sell-Down" shall be
deemed to occur when the Principals and their affiliates (excluding
officers and employees of the Company who are Principals or affiliates
merely by reason of their being such an officer or employee) shall,
directly or indirectly, beneficially own shares of capital stock of
the Company representing
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less than 50% of the largest total number of such shares theretofore
owned by such persons.
7. CALL RIGHTS. In the event of (I) the termination of the
Executive's employment with the Company at any time, under any circumstances and
for any or no reason, (II) a Change in Control or (III) any transfer of any
Restricted Shares by the Executive under any circumstances (other than to a
trust controlled by Executive for estate planning purposes, the trustee of which
agrees in writing to be subject in all events and for all purposes to the
Company's Call as set forth herein), including pursuant to any arrangement,
proceeding, decree, judgement, order or application of law relating to the
division of property for domestic relations purposes, for a period commencing on
the date of such event and expiring upon the Company's Initial Public Offering
(the "Call Exercise Period"), the Company shall have the right to purchase from
the Executive, by giving written notice to the Executive pursuant hereto and in
accordance with the terms and conditions of Section 8(a) below (the "Call") any
or all Restricted Shares as of the end of business on the Call Exercise Date as
to which the Transfer Restrictions shall have lapsed pursuant to Section 1(c)
and which shall not theretofore have been forfeited by Executive pursuant to
Section 6(b).
(a) The following terms and conditions shall apply to
the exercise of the Call:
i) The Company shall pay the Executive an
amount equal to the product of (A) the Call Price and (B) the number of
Restricted Shares, being purchased pursuant thereto.
(b) The closing with respect to the exercise of the
Call shall take place at the Company's executive offices within 30 days
following the Call Exercise Date (the "Scheduled Closing Date").
(c) Notwithstanding any other provision hereof, the
Company may assign, without the consent of the Executive, its rights under this
Section 8; PROVIDED, that no such assignment shall release the Company from its
obligations hereunder.
(d) The Call shall terminate upon the closing of the
Company's Initial Public Offering.
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8. INVESTMENT REPRESENTATION. The Executive hereby represents
and warrants to the Company that the Executive, by reason of the Executive's
business or financial experience (or the business or financial experience of the
Executive's professional advisors who are unaffiliated with and who are not
compensated by the Company or any affiliate or selling agent of the Company,
directly or indirectly), has the capacity to protect the Executive's own
interests in connection with the transactions contemplated under this Agreement.
9. NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be given by first class mail, certified
or registered with return receipt requested, or by a nationally recognized
overnight delivery service to the respective parties named below:
If to Company: Harveys Casino Resorts
Highway 50 and Xxxxxxxxx Xxxxxx
X.X. Xxx 000
Xxxx Xxxxx, Xxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Facsimile: 000-000-0000
with a copy to: Colony Capital, Inc.
1999 Avenue of the Stars
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Facsimile: 000-000-0000
If to the Executive: Xxxx X. XxXxxxxxxx
000 Xxxxxx Xxxxx
Xxxxxx Xxxx, Xxxxxx 00000
Facsimile: 775 - 588-0998
Either party hereto may change such party's address for notices by notice duly
given pursuant hereto.
10. SECURITIES LAWS REQUIREMENTS. The Executive hereby
represents and warrants that he is acquiring the Restricted Shares for
investment and not with a view to resale or distribution to the public. The
Executive hereby represents and warrants that he understands that the Restricted
Shares are "re-
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stricted securities," as defined in Rule 144 under the Securities Act, and that
any resale of the Restricted Shares must be in compliance with the registration
requirements of the Securities Act or an exemption therefrom. Each certificate
representing Restricted Shares shall bear the legend set forth below:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED,
SOLD, ASSIGNED, HYPOTHECATED OR OTHERWISE DISPOSED OF (A "TRANSFER")
EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF THAT CERTAIN STOCKHOLDERS
AGREEMENT, DATED AS OF FEBRUARY 2, 1999, BY AND AMONG HARVEYS CASINO
RESORTS, A NEVADA CORPORATION, AND CERTAIN OF ITS STOCKHOLDERS AND THAT
CERTAIN RESTRICTED AWARD AGREEMENT, OF EVEN DATE HEREWITH, BETWEEN THE
COMPANY AND ONE OF ITS SENIOR EXECUTIVES. ANY TRANSFEREE OF THESE
SECURITIES SHALL TAKE SUBJECT TO THE TERMS OF SUCH AGREEMENTS, COPIES
OF WHICH ARE ON FILE WITH THE COMPANY.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR ANY STATE SECURITIES
LAWS, AND NO TRANSFER OF THESE SECURITIES MAY BE MADE EXCEPT (A)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR (B)
PURSUANT TO AN EXEMPTION THEREFROM WITH RESPECT TO WHICH THE COMPANY
MAY, UPON REQUEST, REQUIRE A SATISFACTORY OPINION OF COUNSEL FOR THE
HOLDER THAT SUCH TRANSFER IS EXEMPT FROM THE REQUIREMENTS OF THE ACT.
11. NO OBLIGATION TO REGISTER SHARES. Except as provided in
the Stockholders Agreement, the Company shall be under no obligation to register
the Restricted Shares.
12. PROTECTIONS AGAINST VIOLATIONS OF AGREEMENT. No purported
sale, assignment, mortgage, hypothecation, transfer, pledge, encumbrance, gift,
transfer in trust (voting or other) or other disposition of, or creation of a
security interest in or lien on, any of the Restricted Shares by any holder
thereof in violation of the provisions of this Agreement, the Stockholders
Agreement or the Certificate of Incorporation or the Bylaws of the Company, will
be valid, and the
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Company will not transfer any of said Restricted Shares on its books nor will
any of the Restricted Shares be entitled to vote, nor will any dividends be paid
thereon, unless and until there has been full compliance with such provisions to
the satisfaction of the Company. The foregoing restrictions are in addition to
and not in lieu of any other remedies, legal or equitable, available to enforce
such provisions.
13. WITHHOLDING REQUIREMENTS. Executive shall, no later than
the date as of which the value of any award hereunder becomes includable in his
gross income (after taking into account the provisions of Section 4 hereof), pay
to the Company, or make arrangements satisfactory to the Company regarding
payment of, any federal, state, or local taxes or other amounts of any kind
required by law to be withheld with respect thereto. The obligations of the
Company hereunder shall be conditional on the making of such payments or
arrangements, and the Company shall, to the extent permitted by law, have the
right to deduct any such taxes from any payment of any kind otherwise due to
Executive.
14. FAILURE TO ENFORCE NOT A WAIVER. The failure to enforce at
any time any provision of this Agreement shall in no way be construed to be a
waiver of such provision or of any other provision hereof.
15. GOVERNING LAW. This Agreement shall be governed by and
construed according to the laws of the State of Nevada without regard to its
principles of conflict of laws.
16. INCORPORATION OF PLAN. The Plan is hereby incorporated
by reference and made a part hereof, and the Restricted Stock award and this
Agreement shall be subject to all terms and conditions of the Plan; provided,
however, that in the event of a conflict between the terms of this Agreement
and the Plan, the terms of the Plan shall govern.
17. AMENDMENTS. Any Award granted pursuant to this Agreement
may be amended or modified in accordance with Section 9 of the Plan.
18. AGREEMENT NOT A CONTRACT OF EMPLOYMENT. Neither the Plan,
the granting of the Restricted Stock award, this Agreement nor any other action
taken pursuant to the Plan shall constitute or be evidence of any agreement or
understanding, express or implied, that the Executive has a right to continue as
an employee of the Company or any Subsidiary or affiliate of the Company for any
period of time or at any specific rate of compensation.
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19. AUTHORITY OF THE BOARD. The Board shall have full
authority to interpret and construe the terms of the Plan and this Agreement,
and shall do so in good faith.
20. DISPUTE RESOLUTION. Any dispute arising under this
Agreement shall be resolved in accordance with the arbitration provisions of
the Employment Agreement as in effect as of the date hereof, or as the same may
be amended from time to time, regardless of the expiration of the Employment
Agreement prior to the resolution of such dispute, and such arbitration
provisions shall be deemed to be incorporated herein by this reference.
21. MARKET STAND-OFF. In connection with any underwritten
public offering by the Company of its equity securities pursuant to an effective
registration statement filed under the Securities Act for such period as the
Company or its underwriters may request (such period not to exceed 180 days
following the date of the applicable offering), the Executive shall not,
directly or indirectly, sell, make any short sale of, loan, hypothecate,
pledge, offer, grant or sell any option or other contract for the purchase of,
purchase any option or other contract for the sale of, or otherwise dispose of
or transfer, or agree to engage in any of the foregoing transactions with
respect to, any Restricted Shares acquired under this Agreement without the
prior written consent of the Company or its underwriters, PROVIDED, that the
Executive shall not be required to be subject to "lock-up" restrictions that are
more restrictive than such restrictions to which any other Employee Stockholder
(as defined in the Stockholders Agreement) having
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commensurate job duties and responsibilities in the Company is subject, or that
would prevent the Executive from effectuating a sale pursuant to Section 2.5 of
the Stockholders Agreement or Section 3.1 of the Stockholders Agreement.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement on the day and year first above written.
HARVEYS CASINO RESORTS
By:
-------------------------------
Name:
Title:
The undersigned hereby accepts and agrees
to all the terms and provisions of the
foregoing Agreement and to all the terms
and provisions of the Plan and the
Stockholders Agreement herein
incorporated by reference.
-----------------------------------------
Xxxx X. XxXxxxxxxx
Address: 000 Xxxxxx Xxxxx
Xxxxxx Xxxx, Xxxxxx 00000
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