Exhibit 10.2
Amendment No. 4 to
Severance Agreement
With
Xxxxxx X. Xxxxxxxxx, Xx.
WHEREAS, Aztar Corporation (the "Corporation") has previously entered
into that certain Severance Agreement, dated as of July 6, 1995, as amended
through February 7, 2006, by and between the Corporation and Xxxxxx X.
Xxxxxxxxx, Xx. (the "Executive" and such agreement, the "Severance Agreement");
and
WHEREAS, the Compensation Committee of the Board of Directors of the
Company has determined that it is in the best interests of the Corporation and
its stockholders to ensure the Executive's continued attention and dedication to
the his duties during the pendency of transactions contemplated by that certain
Agreement and Plan of Merger by and among Pinnacle entertainment, Inc., PNK
Development, Inc., and the Corporation, dated as of March 13, 2006 (such
transactions, the "Merger"), by providing that the Severance Agreement shall not
expire prior to the second anniversary of a change in control of the Company;
NOW, THEREFORE, the Severance Agreement is hereby amended as follows:
1. Section 1 of the Agreement is hereby amended to read in its entirety
as follows:
Term of Severance Agreement. This Severance Agreement shall commence on
July 6, 1995 (the "Effective Date") and shall continue in effect
through December 31, 2002 (the "Term"); provided, however, that
commencing on January 1, 2002, and each January 1, thereafter, the Term
shall automatically be extended for one additional year unless, not
later than September 30 of the preceding year, the Corporation shall
have given notice that the Term shall not be extended; and provided,
further; and further provided, however, that if a Change in Control (as
defined below) occurs during the Term, the Term shall expire no earlier
than twenty-four (24) months beyond the month in which such Change in
Control occurs. The Corporations obligations under Section 7 shall
survive the expiration of the Term.
For purposes of this Severance Agreement, a "Change in
Control" shall be deemed to occur if:
(i) any Person (as defined below) is or becomes the Beneficial
Owner (as defined below), directly or indirectly, of securities of the
Corporation representing 25% or more of the combined voting power of
the Corporation's then outstanding securities. For purposes of this
Severance Agreement, (a) the term "Person" is used as such term is used
in Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"); provided, however, that the term shall
not include the Corporation, any trustee or other fiduciary holding
securities under an employee benefit plan of the Corporation, or any
corporation owned, directly or indirectly, by the stockholders of the
Corporation in substantially the same proportions as their ownership of
stock of the Corporation, and (b) the term "Beneficial Owner" shall
have the meaning given to such term in Rule 13d-3 under the Exchange
Act.
(ii) during any period of two (2) consecutive years (not
including any period prior to the execution of this Severance
Agreement), individuals who at the beginning of such period constitute
the Board, and any new director (other than a director designated by a
person who has entered into an agreement with the Corporation to effect
a transaction described in clause (i), (iii) or (iv) of this
definition) whose election by the Board or nomination for election by
the Corporation's stockholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either were
directors at the beginning of the period or whose election or
nomination for election was previously so approved (hereinafter
referred to as "Continuing Directors"), cease for any reason to
constitute at least a majority thereof;
(iii) stockholders of the Corporation approve a merger or
consolidation of the Corporation with any other corporation (or other
entity), other than a merger or consolidation which would result in the
voting securities of the Corporation outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) more
than 66-2/3% of the combined voting power of the voting securities of
the Corporation or such surviving entity outstanding immediately after
such merger or consolidation; provided, however, that a merger or
consolidation effected to implement a recapitalization for the
Corporation (or similar transaction) in which no Person acquires more
than 25% of the combined voting power of the Corporation's then
outstanding securities shall not constitute a Change in Control; or
(iv) the stockholders of the Corporation approve a plan of
complete liquidation of the Corporation or an agreement for the sale or
disposition by the Corporation of all or substantially all of the
Corporation's assets; or
(v) any Person is or becomes the Beneficial Owner of
securities of the Corporation representing ten percent (10%) or more of
the combined voting power of the Corporation's then outstanding
securities and (a) the identity of the Chief Executive Officer of the
Corporation is changed during the period beginning sixty (60) days
before the attainment of the ten percent (10%) beneficial ownership and
ending two (2) years thereafter, or (b) individuals constituting at
least one-third (1/3) of the members of the Board at the beginning of
such period shall leave the Board during the period beginning sixty
(60) days before the attainment of the ten percent (10%) beneficial
ownership and ending two (2) years thereafter.
Except as herein modified, the Severance Agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, the authorized officer of the Corporation and the
Executive have each executed this Amendment No. 4 to the Severance Agreement,
effective as of March 23, 2006.
AZTAR CORPORATION
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chairman of the Board, President and
Chief Executive Officer
EXECUTIVE
/s/ Xxxxxx X. Xxxxxxxxx, Xx.
-------------------------------------------
Xxxxxx X. Xxxxxxxxx, Xx.
Vice President, Administration and
Secretary
Address:
c/o Aztar Corporation
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
