HARD ROCK HOTEL HOLDINGS, LLC CLASS C PROFITS INTEREST AGREEMENT
Exhibit 10.5
THIS CLASS C PROFITS INTEREST AGREEMENT (this “Agreement”) is made and entered into as of
September 10, 2008 (the “Effective Date”), by and between Hard Rock Hotel Holdings, LLC, a Delaware
limited liability company (the “Company”), and Xxxxx Xxxxxxxxxxx (“Participant”). Capitalized
terms used in this Agreement but not otherwise defined herein shall have their respective meanings
set forth in the Plan and the LLC Agreement (each as defined below), as applicable.
THE PARTIES HERETO AGREE AS FOLLOWS:
1. Issuance of Award. In consideration of Participant’s agreement to provide services
to or for the benefit of the Company and its Subsidiaries, effective as of the Effective Date, the
Company hereby (a) issues to Participant an Award which represents 100,000 Class C Units of the
Company (the “Award”), and (b) if not already a Member, admits Participant as a Member of the
Company, in consideration of Participant’s agreement to provide services to the Company and its
Subsidiaries on the terms and conditions set forth herein, in the Hard Rock Hotel Holdings, LLC
2008 Profits Interest Award Plan (as amended, modified or supplemented from time to time, the
“Plan”) and in the Second Amended and Restated Limited Liability Company Agreement of Hard Rock
Hotel Holdings, LLC, dated as of May 30, 2008, as amended on August 1, 2008, and as further
amended, modified or supplemented from time to time (the “LLC Agreement”), and upon execution of a
Form of Joinder to the LLC Agreement, in the form attached hereto as Exhibit B. The
Company and Participant acknowledge and agree that the Class C Units are hereby issued to
Participant for the performance of services to or for the benefit of the Company and its
Subsidiaries in his or her capacity as a Member or in anticipation of Participant becoming a
Member. Participant acknowledges that the Company from time to time may issue or cancel (or
otherwise modify) Class C Units in accordance with the terms of the Plan or LLC Agreement.
Participant further acknowledges that this agreement and the LLC Agreement substantially restrict
the Transfer of Class C Units, and provide for drag along rights, cancellation provisions and other
provisions that impact ownership of the Class C Units.
2. Vesting, Termination of Employment, and Repurchase Right.
2.1 Vesting.
(a) One-fourth of the total number of Class C Units covered by the Award shall vest on the
Effective Date. Subject to Section 2.2 and 2.3 below, the remainder of the Award shall vest with
respect to one-fourth of the total number of Class C Units covered by the Award on each of December
31, 2008, December 31, 2009 and December 31, 2010.
(b) Vesting Upon Sale of the Company. In the event that a Sale of the Company occurs
prior to December 31, 2010 and Participant remains an Employee until the closing date of the Sale
of the Company, 100% of the remaining outstanding unvested Class C
Units covered by the Award (not cancelled or forfeited prior to such date) shall vest
immediately prior to the Sale of the Company.
2.2 Effect of Termination of Service on Unvested Units.
In the event of Participant’s Termination of Employment by the Company without Cause (as
defined below) or by Participant for Good Reason, to the extent that the date of termination (the
“Termination Date”) occurs on or after April 1 of the calendar year of termination (the
“Termination Year”), the number of any unvested Class C Units that could have vested on December 31
of the Termination Year pursuant to Section 2.1(a) above, multiplied by a fraction, the numerator
of which is the number of completed calendar quarters of the Termination Year that preceded the
Termination Date, and the denominator of which is four, shall vest immediately prior to the
Termination Date. Any other Class C Units, to the extent not vested as of the Termination Date
(and the proportionate amount of Participant’s Capital Account balance attributable to such Class C
Units), shall thereupon automatically and without further action be cancelled and forfeited, and
Participant shall have no further right or interest in or with respect to such unvested Class C
Units (or such proportionate amount of Participant’s Capital Account balance). No portion of the
Award and no Class C Units which are unvested as of Participant’s Termination of Employment shall
thereafter become vested.
For purposes of this Agreement, references to Participant’s “employment with the Company,”
“Termination of Employment” with the Company, and similar terms shall refer to Participant’s
provision of services and performance of duties as the President and Chief Operating Officer of
Hard Rock Hotel, Inc.
Notwithstanding any other provision to the contrary in the LLC Agreement, the Plan, this
Agreement or any employment or other agreement with Participant, “Cause” shall never exist at any
time or under any circumstances for purposes of this Agreement.
2.3 Effect of Termination of Service on Vested Class C Units.
(a) Company’s Repurchase Right.
(i) In the event of Participant’s Termination of Employment for any reason, the Company shall
have the right, for a period equal to 180 days following the later of the Termination Date or
December 31, 2010 (the later of the Termination Date or December 31, 2010, the “Repurchase Right
Date”), to purchase from Participant, or Participant’s personal representative, as the case may be,
any or all of the vested Class C Units then owned by Participant at a price per Class C Unit equal
to the Repurchase Price (as defined below) (the “Repurchase Right”). The “Repurchase Price” shall
equal the greater of (A) the per unit value of such Class C Units calculated by the Company based
on the amount of Participant’s Capital Account balance attributable to such Class C Units as of the
Repurchase Right Date, assuming a deemed liquidation of the Company on the Repurchase Right
Date at an enterprise value of the Company equal to the excess, if any, of (x) ten (10) times the
Company’s aggregate EBITDA for the four completed fiscal quarters ending on or immediately
preceding the Repurchase Right
Date, minus (y) the Company’s total debt
as of the Repurchase Right Date determined in
accordance with GAAP applicable to the operation of hotels and with the Uniform System, or (B) the
fair market value of such a Class C Unit as of the Repurchase Right Date determined by a Qualified
Appraiser selected by the Company, provided that, within 10 calendar days after the Company’s
delivery of a Repurchase Notice (as defined below), Participant provides written notice to the
Company that Participant wishes to compel the Company to engage a Qualified Appraiser to value the
Class C Units. The Company may exercise the Repurchase Right by delivering personally or by
registered mail to Participant (or his or her transferee or legal representative, as the case may
be), within the applicable time period specified above, a notice in writing indicating the
Company’s intention to exercise the Repurchase Right and setting forth a date and manner for
closing not later than thirty (30) days from the mailing of such notice (the “Repurchase Notice”).
Upon payment of the foregoing consideration by the Company to Participant, the Class C Units
subject to the Repurchase Right shall be cancelled by the Company without any further action of
Participant.
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(ii) The Repurchase Right shall terminate upon the earlier to occur of (A) a Sale of the
Company, or (B) the consummation of the initial sale of common stock of the Company or its
successor to the general public in a firm commitment underwriting pursuant to a registration
statement filed with and declared effective by the Securities and Exchange Commission under the
Securities Act of 1933, as amended.
3. Transfers.
3.1 Restrictions on Transfers of Class C Units. Subject to Section 3.2 below and
except as provided in Sections 4, 5, and 6 below, Participant shall not Transfer or Encumber the
Award or any Class C Units (the “Transfer Restriction”); provided, however, that such prohibition
shall not apply to any Transfer of the Award or Class C Units to the Company or any Subsidiary.
3.2 Exception for Permitted Transferees. Anything to the contrary contained in this
Section notwithstanding, the Transfer of the Award or any Class C Units during Participant’s
lifetime to a Permitted Transferee shall be exempt from the Transfer Restriction. In such case,
the Permitted Transferee shall receive and hold the Class C Units so Transferred subject to the
provisions of this Section and there shall be no further Transfer of such Class C Units except in
accordance with the terms of this Section. Any Transfer of the Award or Class C Units which is not
made in compliance with the Plan, the LLC Agreement and this Agreement shall be null and void and
of no effect, and further, such Award may be cancelled and forfeited by Participant pursuant to the
LLC Agreement.
4. Drag-Along Right.
(a) Right to Cause Sale. If at any time the holders of at least an aggregate
fifty-one percent Membership Interest in the Company and/or their Affiliates (collectively, the
“Majority Holders”) propose to Transfer, directly or indirectly, in a single transaction or a
series of related transactions more than an aggregate fifty percent Membership Interest in the
Company in an arm’s-length transaction to a bona fide third party that is not an Affiliate of
the Majority Holders (an “Approved Sale”), then the Majority Holders can require Participant to
sell a portion of his or her Membership Interest that is represented by Class C Units equal to the
proportionate share of Membership Interests being sold by the Majority Holders and all other
Members in such Approved Sale (based upon the total Membership Interests held by the Majority
Holders and all other Members at such time) on substantially the same terms and conditions (the
“Drag-Along Right”); provided, however, that, in the event that the Morgans
Parties (as defined in
the LLC Agreement) then own any Membership Interests, then, as a condition to the Majority Holders’
right to require Participant to effect such sale, the Morgans Parties must be required to sell (or
must have agreed to sell or otherwise waive any right to sell) a proportionate share of their
Membership Interests in the Approved Sale (the “Morgans Group Drag Condition”). In the event of
an Approved Sale, the Majority Holders will deliver a written notice to Participant at least twenty
days before entering into a binding agreement with respect to such Approved Sale, specifying in
reasonable detail the identity of the prospective transferee, the amount of Membership Interests to
be Transferred by the Majority Holders, the terms and conditions of the Approved Sale and whether
or not the Majority Holders are electing to exercise the Drag-Along Right (the “Approved Sale
Notice”).
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(b) Obligations of Participant. If the consummation of the Approved Sale would result
in a Transfer of 100% of the Membership Interests in the Company, then the Majority Holders may in
their sole discretion elect to cause the Company to structure the Approved Sale as a merger or
consolidation or a as a sale of the Company’s assets. If such Approved Sale is structured as a
merger, consolidation or a sale of assets, then Participant shall not have any dissenter’s rights,
appraisal rights or similar rights in connection therewith. Participant agrees to consent to and
raise no objections against an Approved Sale. In the event of the exercise by the Majority Holders
of their Drag-Along Right, Participant shall take all necessary or desirable actions approved by
the Majority Holders in connection with the consummation of the Approved Sale, including the
execution of such agreements and such instruments and other actions necessary to provide customary
representations, warranties, indemnities, covenants, conditions and other agreements relating to
such Approved Sale and to otherwise effect the transaction; provided, however, that Participant
shall not be required to indemnify the transferee pursuant to such agreements in an amount in
excess of the gross proceeds paid to Participant in connection with the Approved Sale. Participant
shall bear his or her ratable share (based on its percentage of the aggregate Membership Interests
to be sold by all Members) of the out of pocket costs of the Approved Sale to the extent such costs
are incurred for the benefit of all Members and are not otherwise paid by the Company or the
acquiring party. Costs incurred by Members on their own behalf shall not be considered costs of
the Approved Sale.
5. Tag-Along Right. If the Approved Sale Notice indicates that the Majority Holders
are not exercising the Drag-Along Right, then Participant may elect to participate in the
contemplated Approved Sale by delivering irrevocable written notice to the Majority Holders within
fifteen days after delivery of the Approved Sale Notice; provided, however, that, in the event that
the Morgans Parties then own any Membership Interests, then, as a condition to Participant’s right
to participate in such sale, the Morgans Parties must have similar rights (or
must have waived any such rights) to participate in the sale of a proportionate share of their
Membership Interests in the Approved Sale (the “Morgans Group Tag Condition”). If Participant
elects to participate in the Approved Sale, then he or she will be entitled to sell, on the same
terms and conditions specified in the Approved Sale Notice, a portion of his or her Membership
Interests represented by Class C Units equal to the proportionate share of Membership Interests
being sold by the Majority Holders and all other Members (based upon the total Membership Interests
held by the Majority Holders and all other Members at such time). The Majority Holders shall use
their commercially reasonable efforts to obtain the agreement of the prospective transferee to the
participation of Participant in the contemplated Approved Sale. If, within fifteen days after
delivery of the Approved Sale Notice, Participant does not provide the Majority Holders irrevocable
notice of its election to participate in the Approved Sale, then the Majority Holders shall be
entitled to Transfer to the prospective transferee the amount of Membership Interests specified in
the Approved Sale Notice on substantially the same terms and conditions specified therein.
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6. Piggyback Registration Rights. In the event the Board elects to convert the
Company to a C-Corporation and register any of its securities under the Securities Act pursuant to
an underwritten initial public offering of the Company’s securities by the Company and/or its
stockholders, the Company will give written notice (the “Registration Notice”) to Participant of
its intention to effect such a registration at least ten days prior to the anticipated filing of
the registration statement relating to the registration (which notice will specify the intended
method of distribution of the registered shares). Upon the written request of Participant made
within ten days after the receipt of the Company’s notice, which request shall specify the number
of shares converted from Class C Units of Participant intended to be disposed (the “Requested
Shares”), the Company shall use its commercially reasonable efforts to effect the registration
under the Securities Act of all Requested Shares according to its intended method of disposition
thereof. Notwithstanding the foregoing, if the lead underwriter(s) advise the Board in writing
that marketing factors require a limitation of the number of shares to be underwritten, then the
Board shall so advise Participant, and the number of shares that may be included in such
underwriting shall be allocated among Participant and all other holders who have validly exercised
piggyback registration rights in connection with such registration in proportion (as nearly as
practicable) to the number of shares owned and requested to be registered by each such holder,
including Participant. In connection with such registration, Participant shall provide customary
representations, warranties, indemnities, covenants, conditions and other agreements relating to
such registration to the underwriters; provided, however, that Participant shall not be required to
indemnify any underwriter in an amount in excess of the total price at which Participant’s
registered shares were offered to the public in connection with the registration (net of discounts
and commissions paid by Participant in connection with the registration).
7. Representations, Warranties, Covenants, and Acknowledgments of Participant.
Participant hereby represents, warrants, covenants, acknowledges and agrees on behalf of
Participant and his or her spouse, if applicable, that:
7.1 Investment. Participant is holding the Award for Participant’s own account, and
not for the account of any other Person. Participant is holding the Award for investment and not
with a view to distribution or resale thereof except in compliance with applicable laws
regulating securities.
7.2 Relation to Company. Participant is presently an Employee and in such capacity
has become personally familiar with the business of the Company.
7.3 Access to Information. Participant has had the opportunity to ask questions of,
and to receive answers from, the Company with respect to the terms and conditions of the
transactions contemplated hereby and with respect to the business, affairs, financial conditions,
and results of operations of the Company.
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7.4 Registration. Participant understands that the Class C Units have not been
registered under the Securities Act of 1933, as amended (the “Securities Act”), and the Class C
Units cannot be transferred by Participant other than in accordance with the terms and conditions
set forth in the Plan, this Agreement and the LLC Agreement and, in any event, unless such transfer
is registered under the Securities Act or an exemption from such registration is available. The
Company has made no representations, warranties or covenants whatsoever as to whether any exemption
from the Securities Act is available.
7.5 Public Trading. None of the Company’s Equity Securities is presently publicly
traded, and the Company has made no representations, covenants or agreements as to whether there
will be a public market for any of its Equity Securities.
7.6 Tax Advice. The Company has made no warranties or representations to Participant
with respect to the income tax consequences of the issuance of the Class C Units or the
transactions contemplated by this Agreement (including, without limitation, with respect to the
making of an election under Section 83(b) of the Code), and Participant is in no manner relying on
the Company or its representatives for an assessment of such tax consequences. Participant is
advised to consult with his or her own tax advisor with respect to such tax consequences and his or
her ownership of the Class C Units.
7.7 Accredited Investor. Participant is an “accredited investor” as that term is
defined under Regulation D of the Securities Act.
8. Capital Account. Participant shall make no Capital Contribution to the Company in
connection with the Award and, as a result, Participant’s Capital Account (as defined in the LLC
Agreement) balance in the Company immediately after his or her receipt of the Class C Units shall
be equal to zero, unless Participant was a Member in the Company prior to such issuance, in which
case Participant’s Capital Account balance shall not be increased as a result of his or her receipt
of the Class C Units.
9. Binding Effect. Subject to the limitations set forth in this Agreement, this
Agreement shall be binding upon, and inure to the benefit of, the executors, administrators, heirs,
legal representatives, successors and assigns of the parties hereto.
10. Section 83(b) Election. Participant covenants that he shall make a timely
election under Section 83(b) of the Code (and any comparable election in the state of Participant’s
residence) with respect to the Class C Units covered by the Award. In connection with such
election, Participant and Participant’s spouse, if applicable, shall execute and deliver to the
Company with this executed Agreement, a copy of the Election Pursuant to Section 83(b) of the
Internal Revenue Code, substantially in the form attached hereto as Exhibit A. Participant
represents that Participant has consulted any tax consultant(s) that Participant deems advisable in
connection with the filing of an election under Section 83(b) of the Code and similar state tax
provisions. Participant acknowledges that it is Participant’s sole responsibility and not the
Company’s to timely file an election under Section 83(b) of the Code (and any comparable state
election), even if Participant requests that the Company or any representative of the Company make
such filing on Participant’s behalf. Participant should consult his or her tax advisor to
determine if there is a comparable election to file in the state of his or her residence.
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11. Taxes. The Company and Participant intend that (i) the Class C Units be treated
as “profits interests” within the meaning of the Code, Treasury Regulations promulgated thereunder,
and any published guidance by the Internal Revenue Service with respect thereto, including, without
limitation, Internal Revenue Service Revenue Procedure 93-27, as clarified by Internal Revenue
Service Revenue Procedure 2001-43, (ii) the issuance of such interests not be a taxable event to
the Company or Participant as provided in such Revenue Procedure, and (iii) the LLC Agreement, the
Plan and this Agreement be interpreted consistently with such intent. In furtherance of such
intent, effective immediately prior to the issuance of the Class C Units, the Company will cause
the Gross Asset Value (as defined in the LLC Agreement) of all Company assets to be adjusted to
equal their respective gross fair market values, and make the resulting adjustments to the Capital
Accounts of the Members, in each case as set forth in the LLC Agreement. The Company may withhold
from Participant’s wages, or require Participant to pay to the Company, any applicable withholding
or employment taxes resulting from the issuance of the Award hereunder, from the vesting or lapse
of any restrictions imposed on the Award, or from the ownership or disposition of the Class C
Units.
12. Non-Competition, Non-Solicitation, and Confidentiality.
12.1 In consideration of and in connection with the grant of the Award to Participant,
Participant agrees that
(a) During the period of Participant’s employment with the Company, Participant shall not,
directly or indirectly, own, manage, join, control, operate, consult with, render services for, or
participate in the ownership, management, operation or control of, or be connected as a director,
officer, employee, partner, consultant or otherwise with, or in any other manner engage in any
business which, directly or indirectly, competes with, or in any way interferes with, the hotel
casino business of the Company or any of its Affiliates, including the Morgans Parties (including
without limitation, the hotel casino’s nightclub business, restaurant business, and other
businesses), in any part of the Restricted Territory (any such activity, “Competitive Activity”);
and
(b) In the event of termination of Participant’s employment with the Company (i) for Cause at
any time, or (ii) by Participant without Good Reason during the Covered Period (but excluding any
Termination of Employment upon the expiration of the Covered Period if Participant elects to
terminate Participant’s employment as of the expiration of the Covered Period by notifying the
Company, in writing, of such election not less than 90 days prior to the last day of the Covered
Period then in effect), Participant shall not, during the Non-Compete Period (as defined below),
directly or indirectly engage in Competitive Activity;
provided, however, that nothing in Section 12.1(a) or (b) shall restrict Participant from any such
activities undertaken for the benefit of the Morgans Parties or their Affiliates to the extent such
activities do not contravene the provisions of the Property Management Agreement; and provided
further, that the restrictions of this Section 12.1(b) shall not apply prior to the time at which
Participant is licensed by the Nevada Gaming Authorities.
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(c) For purposes of this Agreement, (i) “Covered Period” shall mean the period commencing on
the Effective Date and terminating on December 31, 2010; provided, however, that the Covered Period
shall automatically be extended for one additional year on December 31, 2010 and on each subsequent
anniversary thereof, unless either Participant or the Company elects to terminate Participant’s
employment as of the expiration of the Covered Period then in effect by notifying the other party,
in writing, of such election not less than 90 days prior to the last day of the Covered Period then
in effect, (ii) “Non-Compete Period” shall mean the greater of (A) the 12 month period immediately
following the Termination Date, or (B) the period during which Participant is entitled to receive
severance payments or benefits from the Company or any of the Morgans Parties (or, if severance is
paid in a lump-sum, the period of time that would be covered by such severance had it been paid in
the form of salary continuation), provided, however, that the Company may, in its discretion, elect
to extend such period to no later than the two year anniversary of the Termination Date by
providing at least 60 days advance notice to Participant (or, in the event of a Termination of
Employment by Participant, notice within 10 days after Participant notifies the Company of such
termination) that it wishes to extend the Non-Compete Period, in which case the Company shall pay
Participant not to engage in Competitive Activity during such extended period at a rate equal to no
less than Participant’s base salary and bonus (as in effect as of the Termination Date) for such
extended period, and (iii) “Restricted Territory” shall mean the greater Las Vegas metropolitan
area and any territory within a 25 mile radius thereof. Notwithstanding the foregoing, nothing
herein shall prohibit Participant from being a passive owner of not more than five percent (5%) of
the outstanding stock of any class of a corporation which is publicly traded, so long as
Participant has no active participation in the business of such corporation. Participant
understands that the foregoing restrictions may limit his or her ability to earn a livelihood in a
business similar to the business of the Company, but Participant nevertheless believes that he has
received and will receive sufficient consideration and other benefits as an Employee of the Company
and as otherwise provided hereunder to clearly justify such restrictions which, in any event (given
Participant’s education, skills and ability), Participant does not believe would prevent him or her
from otherwise earning a living.
12.2 During the period of Participant’s employment with the Company and for a period of 12
months thereafter, Participant shall not, directly or indirectly, (i) induce or attempt to induce
any employee of the Company to work for, render services or provide advice to or supply
confidential business information or trade secrets of the Company to any third person, firm or
corporation, or in any way interfere with the relationship between the Company, on the one hand,
and any employee thereof, on the other hand, (ii) induce or attempt to induce any customer,
supplier, licensee or other business relation of the Company to cease doing business with the
Company, or (iii) in any way interfere with the relationship between any such customer, supplier,
licensee or business relation, on the one hand, and the Company, on the other hand; provided,
however, that with respect to the Company’s customers, the foregoing provisions of this Section
12.2 shall not restrict Participant from any such activities undertaken for the benefit of the
Morgans Parties or their Affiliates to the extent such activities do not contravene the provisions
of the Property Management Agreement.
12.3 As a condition to the grant of the Award, Participant agrees to execute the Company’s
standard employee non-disclosure, assignment of inventions, and confidentiality agreement in a form
prescribed by the Company.
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13. Remedies. Participant shall be liable to the Company for all costs and damages,
including incidental and consequential damages, resulting from a disposition of the Award which is
in violation of the provisions of this Agreement. Participant acknowledges that a breach by him or
her of any of the covenants or restrictions contained or referenced herein will cause irreparable
damage to the Company, the exact amount of which will be difficult to ascertain. Accordingly,
Participant agrees that if he or she breaches or attempts to breach any such covenants or
restrictions, the Award may be cancelled and forfeited by Participant pursuant to the LLC
Agreement. Notwithstanding any other provision to the contrary in the LLC Agreement, the Plan or
this Agreement, no vested portion of the Award and no vested Class C Units may be cancelled or
forfeited by Participant pursuant to the LLC Agreement, except as specifically provided in Section
3.2 above and this Section 13.
14. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware without regard to any otherwise governing principles of
conflicts of law, except that the laws of the State of Nevada shall be so applied to Section 12 of
this Agreement.
15. Notice of Restrictions. Participant is hereby notified and acknowledges that:
(a) The offering and sale of the Class C Units have not been registered under the
Securities Act of 1933, as amended (the “Securities Act”). Any transfer of such securities
will be invalid unless a Registration Statement under the Securities Act is in effect as to
such transfer or in the opinion of counsel for the Company such registration is unnecessary
in order for such transfer to comply with the Securities Act.
(b) The Class C Units are subject to forfeiture, a right of repurchase and to
transferability and other restrictions as set forth in this Agreement and the LLC
Agreement, in each case, as may be amended, supplemented or modified from time to time,
and such securities may not be sold or otherwise transferred except pursuant to the
provisions of such documents.
16. Code Section 409A. Neither the Award nor the Class C Units are intended to
constitute or provide for “nonqualified deferred compensation” within the meaning of Section 409A
of the Code (“Section 409A”), and, provided that Section 409A of the Code, Treasury Regulations and
related Department of Treasury guidance do not require otherwise, the Company shall not treat the
Award or the Class C Units as nonqualified deferred compensation. However, notwithstanding any
other provision of the Plan or this Agreement, if at any time the Committee determines that the
Award or the Class C Units may be subject to Section 409A, the Committee shall have the right, in
its sole discretion, to adopt such amendments to the Plan or this Agreement or take such other
actions (including amendments and actions with retroactive effect) as the Committee determines are
necessary or appropriate either for the Award and the Class C Units to be exempt from the
application of Section 409A or to comply with the requirements of Section 409A.
17. Counterparts. This Agreement may be executed in any number of counterparts, any
of which may be executed and transmitted by facsimile, and each of which shall be deemed to be an
original, but all of which together shall be deemed to be one and the same instrument.
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18. Successors and Assigns. Subject to the limitations set forth in this Agreement,
this Agreement shall be binding upon, and inure to the benefit of, the executors, administrators,
heirs, legal representatives, successors and assigns of the parties hereto, including, without
limitation, any business entity that succeeds to the business of the Company. This Agreement may
not be assigned by Participant without the consent of the Company in its sole discretion.
19. Entire Agreement; Amendments and Waivers. This Agreement, together with the Plan
and the LLC Agreement, constitutes the entire agreement among the parties pertaining to the subject
matter hereof and supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the parties. This Agreement may not be amended except in an instrument
in writing signed on behalf of each of the parties hereto and approved by the Committee. No
amendment, supplement, modification or waiver of this Agreement shall be binding unless executed in
writing by the party to be bound thereby. Notwithstanding the foregoing, the Committee shall have
the right to amend this Agreement in accordance with Section 6.3(b) of the Plan without the consent
of Participant or to the extent that such amendment does not materially adversely impair the rights
of Participant hereunder. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provision hereof (whether or not similar), nor shall such
waiver constitute a continuing waiver unless otherwise expressly provided.
20. Third Party Beneficiary. The parties hereto expressly intend that (i) with
respect to Sections 4, 5, and 12, the Majority Holders, and (ii) with respect to Section 12 and the
Morgans Group Drag Condition set forth in Section 4, the Morgans Parties, be intended third party
beneficiaries and shall have standing to enforce such provisions hereof as if they were a
party hereto. Notwithstanding any provision of this Agreement to the contrary, Sections 4, 5,
and 12 shall not be amended without the express prior written consent of the Majority Holders, and
Section 12 and the Morgans Group Drag Condition set forth in Section 4 shall not be amended without
the express prior written consent of the Morgans Parties. Notwithstanding the foregoing, at such
time as the Majority Holders or the Morgans Parties cease to own any Membership Interest, the third
party beneficiary rights, enforcement rights and consent rights under this Section 20 of the
Majority Holders or the Morgans Parties, respectively, shall automatically terminate and be of no
further force or effect.
21. Severability. If any term, provision, covenant or condition of this Agreement is
held by a court of competent jurisdiction to exceed the limitations permitted by applicable law,
then the provisions will be deemed reformed to the maximum limitations permitted by applicable law
and the parties hereby expressly acknowledge their desire that in such event such action be taken.
If for any reason one or more of the provisions contained in this Agreement or in any other
instrument referred to herein, shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, then to the maximum extent permitted by law, such invalidity,
illegality or unenforceability shall not affect any other provision of this Agreement or any other
such instrument.
22. Titles. The titles, captions or headings of the Sections herein are inserted for
convenience of reference only and are not intended to be a part of or to affect the meaning or
interpretation of this Agreement.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the
date first written above.
| Hard Rock Hotel Holdings, LLC, a Delaware limited liability company |
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| By: | ||||
| Name: | ||||
| Title: | ||||
Participant hereby accepts and agrees to be bound by all of the terms and conditions of this
Agreement.
| Participant: | ||||
PROFITS INTEREST AGREEMENT
EXHIBIT A
ELECTION PURSUANT TO SECTION 83(b) OF THE
INTERNAL REVENUE CODE TO INCLUDE IN GROSS
INCOME THE EXCESS OVER THE PURCHASE PRICE,
IF ANY, OF THE VALUE OF PROPERTY TRANSFERRED
IN CONNECTION WITH SERVICES
ELECTION PURSUANT TO SECTION 83(b) OF THE
INTERNAL REVENUE CODE TO INCLUDE IN GROSS
INCOME THE EXCESS OVER THE PURCHASE PRICE,
IF ANY, OF THE VALUE OF PROPERTY TRANSFERRED
IN CONNECTION WITH SERVICES
The undersigned hereby elects pursuant to Section 83(b) of the Internal Revenue Code of 1986,
as amended, to include in the undersigned’s gross income for the 2008 taxable year the excess (if
any) of the fair market value of the property described below, over the amount the undersigned paid
for such property, if any, and supplies herewith the following information in accordance with the
Treasury regulations promulgated under Section 83(b):
1. The undersigned’s name, address and taxpayer identification (social security) number are:
| Name: | ||||
| Address: | ||||
| Social Security #: | ||||
The undersigned’s spouse’s name, address and taxpayer identification (social security) number
are (complete if applicable):
| Name: | ||||
| Address: | ||||
| Social Security #: | ||||
2. The property with respect to which the election is made consists of 100,000 Class C Units
(the “Award”) of Hard Rock Hotel Holdings, LLC, a Delaware limited liability company (the
“Company”), representing an interest in the future profits, losses and distributions of the
Company.
3. The date on which the above property was transferred to the undersigned was September 10,
2008, and the taxable year to which this election relates is 2008.
4. The above property is subject to the following restrictions: (a) forfeiture and/or a right
of repurchase by the Company if the undersigned ceases to be an employee of, or consultant to, the
Company, and (b) certain other restrictions pursuant to the Class C Profits Interest Agreement
evidencing the Award and the Second Amended and Restated Limited Liability Company Agreement of
Hard Rock Hotel Holdings, LLC, dated as of May 30, 2008, as
amended on August 1, 2008, and as further amended, modified or supplemented from time to time,
should the undersigned wish to transfer the Award (in whole or in part).
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5. The fair market value of the above property at the time of transfer (determined without
regard to any restrictions other than those which by their terms will never lapse) is $0.
6. The amount paid for the above property by the undersigned was $0.
7. A copy of this election has been furnished to the Company, and the original will be filed
with the income tax return of the undersigned to which this election relates.
Date:
____________, 2008 |
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Date:
____________, 2008 |
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EXHIBIT B
FORM OF JOINDER
The undersigned is executing and delivering this Joinder Agreement pursuant to the Second
Amended and Restated Limited Liability Company Agreement of Hard Rock Hotel Holdings, LLC (the
“Company”), dated as of May 30, 2008, as amended on August 1, 2008, and as further amended,
modified or supplemented from time to time (the “LLC Agreement”).
By executing this Joinder Agreement and delivering it to the Company, the undersigned hereby
agrees to become a party to, to be bound by, and to comply with the provisions of the LLC Agreement
in the same manner as if the undersigned were an original signatory to such agreement, and all of
the undersigned’s Class C Units of the Company shall be subject to the terms and conditions of the
LLC Agreement.
By executing this Joinder Agreement and delivering it to the Company, the undersigned hereby
represents and warrants that he or she is (you must check one of the following boxes): o not
married; OR o married and is concurrently herewith delivering a completed and signed Consent By
Spouse to the Company.
Accordingly, the undersigned has executed and delivered this Joinder Agreement as of , 2008.
| Participant: | ||||
| (Sign Name) | ||||
| (Print Name) | ||||
| ACKNOWLEDGED & ACCEPTED: HARD ROCK HOLDINGS, LLC |
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| By | ||||
| Name: | ||||
| Its: | ||||
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CONSENT BY SPOUSE
I acknowledge that I have read the Class C Profits Interest Agreement (as amended, modified or
supplemented from time to time, the “Agreement”), by and between Hard Rock Hotel Holdings, LLC (the
“Company”), and my spouse,
and the Hard Rock Hotel Holdings, LLC 2008 Profit
Interest Award Plan (as amended, modified or supplemented from time to time, the “Plan”), and that
I know its contents. I am aware that by its provisions, my spouse agrees to sell, convert, dispose
of, or otherwise transfer his or her Class C Units of the Company (the “Award”) hereunder under
certain circumstances. I hereby consent to such sale, conversion, disposition or other transfer;
and approve of the provisions of this Agreement and any action hereafter taken by my spouse
thereunder with respect to his or her Award, and I agree to be bound thereby.
I further agree that in the event of my death or a dissolution of marriage or legal
separation, my spouse shall have the absolute right to have my interest, if any, in the Award set
apart to him or her, whether through a will, a trust, a property settlement agreement or by decree
of court, or otherwise, and that if he or she be required by the terms of such will, trust,
settlement or decree, or otherwise, to compensate me for said interest, that the price shall be an
amount equal to: (i) the Fair Market Value (as defined in the Plan) of the Award;
multiplied by (ii) my percentage of ownership in such interest.
This consent, including its existence, validity, construction, and operating effect, and the
rights of each of the parties hereto, shall be governed by and construed in accordance with the
laws of the State of Delaware without regard to otherwise governing principles of choice of law or
conflicts of law.
Dated: |
Participant’s Spouse: |
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