EXHIBIT 10.46
MANAGEMENT STOCK OPTION
AND RESTRICTED STOCK AGREEMENT
This is a STOCK OPTION AND RESTRICTED STOCK AGREEMENT
("Agreement"), dated as of February 2, 1999 (the "Effective Date"), by and
between Harveys Casino Resorts, a Nevada corporation (the "Company"), and
Xxxx 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 Executive is to be granted (i)
an option (the "Option") to purchase shares of the Company's Class A Common
Stock, par value $.01 per share (the "Class A Common Stock"), and shares of
the Company's Class B Common Stock, par value $.01 per share (the "Class B
Common Stock" and, together with the Class A Common Stock, the "Common
Stock"), and (ii) a Restricted Stock award consisting of additional shares of
Class A Common Stock and Class B Common Stock (the "Restricted Shares"), each
on the terms and conditions set forth herein, and hereby grants such Option
and Restricted Stock award. It is intended that the Option shall constitute
an "incentive stock option" (an "ISO") within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended (the "Code") to the maximum
extent permitted under the Code. Additional provisions relating to the ISO
status of the Option are set forth in Section 1 below.
Any capitalized terms not defined herein shall have their
respective meanings set forth in the Plan.
1. TERMS OF OPTION GRANT. (a) The Option entitles Executive to
purchase 90 shares of the Company's Class A Common Stock at a price equal to
$20.06 per share (the "Class A Option Exercise Price"), which the parties
acknowledge is not less than the fair market value of one share of the Class A
Common Stock as of the Effective Date. The Option also entitles Executive to
purchase 9,000 shares of the Company's Class B Common Stock at a price equal to
$20.06 per share (the "Class B Option Exercise Price" and, collectively with the
Class A Option Exercise Price, the "Option Exercise Price"), which the parties
acknowledge is not less than the fair market value of one share of the Class B
Common Stock as of the Effective Date. The shares of Class A Common Stock
and Class B Common Stock subject to the Option are referred to herein as the
"Option Shares."
(b) The term of the Option (the "Option Term") shall commence on
the Effective Date (the "Date of Grant") and, unless the Option is previously
terminated pursuant to this Agreement, shall terminate upon the expiration of
ten (10) years from the Date of Grant. Upon expiration of the Option Term, all
rights of Executive hereunder shall terminate.
(c) The Option shall vest as to 20% of the Option Shares on each
of the first five anniversaries of the Date of Grant, PROVIDED, that
i) the Option and such vesting shall be subject to the
forfeiture provisions of Section 6(b) below (the "Special Forfeiture
Provisions"), such that any such vested portion of the Option shall be
exercisable from time to time only if and to the extent that such vested
portion shall not be subject to forfeiture pursuant to the Special
Forfeiture Provisions; and
ii) upon the occurrence of a Change in Control (as defined
in Section 3 below) at any time prior to the effective date of Executive's
termination of employment with the Company for any or no reason, the Option
shall immediately vest and become exercisable as to 100% of the Option
Shares and the Special Forfeiture Provisions shall immediately expire.
Those Option Shares which, as of any date, have vested pursuant to the first
clause of this Section 1(c) but remain subject to the Special Forfeiture
Provisions shall be referred to herein as "Vested Option Shares."
(d) Except as otherwise provided herein, the right of Executive
to purchase Option Shares with respect to which the Option has become
exercisable may be exercised in whole or in part at any time or from time to
time prior to expiration of the Option Term, PROVIDED, that any exercise of the
Option shall be deemed to relate in tandem to both the Class A Common Stock and
the Class B Common Stock subject to the Option, such that the ratio of (i) the
number of shares of Class A Common Stock issuable upon such exercise to (ii) the
total number of shares of Class A Common Stock outstanding on the date hereof
shall be the same as the ratio of (iii) the number of shares of Class B Common
Stock
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issuable upon such exercise to (iv) the total number of shares of Class B
Common Stock outstanding on the date hereof.
(e) The Option may be exercised by means of written notice of
exercise to the Company specifying the number of Option Shares to be purchased,
accompanied by payment in full of the aggregate Option Exercise Price and any
applicable withholding amounts (i) in cash or by check, (ii) at any time
following the closing of the Company's Initial Public Offering (as defined in
Section 3 below) by means of a broker cashless exercise procedure, on terms
reasonably acceptable to the Company, providing proceeds sufficient to pay the
exercise price and any applicable withholding amounts, or (iii) by any other
means of exercise authorized from time to time in the Plan and/or by the Board.
In addition, with respect to any exercise of the Option that occurs following
Executive's termination of employment with the Company at any time prior to the
closing of the Company's Initial Public Offering, the Option may, at Executive's
election, be exercised through withholding of shares of Common Stock otherwise
issuable upon exercise of the Option having an aggregate Fair Market Value
equivalent to the aggregate Option Exercise Price plus applicable withholding
amounts.
(f) To the extent the Option is intended to constitute an ISO,
the ratio of (i) the number of shares of Class A Common Stock to which the ISO
portion of the Option relates to (ii) the total number of shares of Class A
Common Stock outstanding on the date hereof shall be the same as the ratio of
(iii) the number of shares of Class B Common Stock to which the ISO portion of
the Option relates to (iv) the total number of shares of Class B Common Stock
outstanding on the date hereof.
2. TERMS OF RESTRICTED STOCK AWARD. (a) The Restricted Stock award
entitles Executive as of the Date of Grant to receive 90 shares of Class A
Common Stock and 9,000 shares of Class B Common Stock, subject to the terms and
conditions of this Agreement.
(b) Subject to the rights and obligations of Executive pursuant
to that certain Stockholders Agreement, of even date herewith, by and among the
Company, Executive and the other parties thereto (the "Stockholders Agreement"),
and except as provided in Section 2(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").
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(c) The Transfer Restrictions shall lapse as to 20% of the
Restricted Shares on each of the first five anniversaries of the Date of Grant,
PROVIDED, that
i) 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
forfeiture pursuant to the Special Forfeiture Provisions; and
ii) upon the occurrence of a Change in Control at any time
prior to the effective date 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.
Those Restricted Shares as to which, as of any date, the Transfer Restrictions
have lapsed pursuant to the first clause of this Section 2(c) but which remain
subject to the Special Forfeiture Provisions shall be referred to herein as
"Lapsed Restricted Shares."
(d) From and after the Date of Grant and for so long as the
Restricted Shares are held by or for the benefit of Executive, except as limited
by the Stockholders Agreement, the Transfer Restrictions and the Special
Forfeiture Provisions, 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.
3. 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:
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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
(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
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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).
iv) "Cause" shall mean (A) gross negligence or willful
malfeasance in the performance of Executive's duties to the Company; (B)
conviction of any felony or conviction of a crime involving moral
turpitude; (C) dishonesty with respect to the Company (including, without
limitation, fraud); (D); use or imparting of any confidential or
proprietary information of the Company or any subsidiary or affiliate in
violation of the Company's policy regarding confidentiality or any
confidentiality or proprietary agreement to which Executive is a party,
which act or actions have a material adverse affect on the Company, or (E)
engaging in any other activity that is in violation of the rules and
regulations concerning the conduct of the Company's employees, whether such
rules and regulations are those of the Company or any governmental or other
regulatory agency, and whether or not such rules and regulations have been
reduced to writing, which act or actions have a material adverse effect on
the Company.
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(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 of the Common Stock as determined by the Board in good faith.
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 and in the
kind, number and option price of shares of Common Stock subject to the Option,
as may be determined by the Board in good faith.
5. NONTRANSFERABILITY OF OPTION AND OPTION SHARES; OPTION SHARES AND
RESTRICTED SHARES SUBJECT TO STOCKHOLDERS AGREEMENT. (a) The Option and this
Agreement shall not be transferable and, during the lifetime of Executive, the
Option may be exercised only by Executive; PROVIDED, HOWEVER, that Executive
shall be permitted to transfer the Option and this Agreement to a trust
controlled by Executive during Executive's lifetime for estate planning
purposes, and PROVIDED, FURTHER, that the limited transferability provisions set
forth in the immediately preceding proviso shall apply to any portion of the
Option that constitutes an ISO only to the extent such provisions are consistent
with Section 422(b) of the Code. Without limiting the generality of the
foregoing, except as otherwise provided herein, the Option may not be assigned,
transferred, pledged or hypothecated in any way, shall not be assignable by
operation of law, and shall not be subject to execution, attachment or similar
process. Any attempted assignment, transfer, pledge, hypothecation or other
disposition of the Option contrary to the provisions hereof, and the levy of any
execution, attachment or similar process upon the Option shall be null and void
and without effect.
(b) Executive, the Restricted Shares and, upon exercise of the
Option, the Option 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.
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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 Executive), the Option shall immediately
terminate as to all Option Shares that shall not have vested as of the effective
date of such termination of employment, and 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 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 Executive or (ii) at any time by the Company for Cause, Executive shall
thereupon forfeit that portion of the Vested Option Shares and 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 less
than 50% of the largest total number of such shares theretofore owned by
such persons.
(c) Subject to the Company's call rights set forth in Section 7,
any portion of the Option that, pursuant to Section 1(c) above, shall be vested
and exercisable as of the effective date of Executive's termination of
employment (the "Termination Date") shall be exercisable in whole or in part for
a period of 90
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days following the Termination Date (180 days in the event of termination by
reason of disability, and one year in the event of termination by reason of
death). All Option Shares with respect to which the Option shall be so
vested and exercisable shall be referred to herein as "Vested and Exercisable
Option Shares." Upon expiration of such period, any unexercised portion of
the Option shall terminate in full; PROVIDED, HOWEVER, that if the Company
provides notice to Executive of its intent to exercise the Call pursuant to
Section 7, any portion of the Option subject to such exercise shall terminate
as of the closing of the Call.
7. CALL RIGHTS. In the event of (I) the termination of 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 Option Shares
or Restricted Shares by 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
Executive, by giving written notice to Executive pursuant hereto and in
accordance with the terms and conditions of Section 7(a) below (the "Call") (x)
any or all of such portion of the Option as shall relate to Vested and
Exercisable Option Shares as of the date such written notice is given (the "Call
Exercise Date"), (y) any or all Option Shares owned by Executive as of the end
of business on the Call Exercise Date and/or (z) 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 2(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) If exercising its rights under (x) above, the Company
shall pay Executive an amount in cash equal to the product of (A) the
excess, if any, of the Fair Market Value of a share of Class A Common Stock
or Class B Common Stock, as applicable, as of the Termination Date (the
"Call Price") over the Class A Option Exercise Price or Class B Option
Exercise Price, as applicable, and (B) the number of shares of Class A
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Common Stock or Class B Common Stock, as applicable, that the portion of
the Option being purchased by the Company pursuant to the Call would
otherwise entitle Executive to purchase.
ii) If exercising its rights under (y) or (z) above, the
Company shall pay Executive an amount equal to the product of (A) the Call
Price and (B) the number of Option Shares or Restricted Shares, as
applicable, 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 Executive, its rights under this Section 7;
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.
8. INVESTMENT REPRESENTATION. Executive hereby represents and
warrants to the Company that Executive, by reason of Executive's business or
financial experience (or the business or financial experience of 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 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: Chief Executive Officer
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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
and a copy to: Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxxx
Facsimile: 213-687-5600
If to Executive: Xxxx Xxxxxxxxxx
000 Xxxx Xxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Either party hereto may change such party's address for notices by notice duly
given pursuant hereto.
10. SECURITIES LAWS REQUIREMENTS. The Option shall not be
exercisable to any extent, and the Company shall not be obligated to transfer
any Option Shares to Executive upon exercise of the Option, if such exercise, in
the opinion of counsel for the Company, would violate the Securities Act (or any
other federal or state statutes having similar requirements as may be in effect
at that time). Further, the Company may require as a condition of transfer of
any Option Shares pursuant to any exercise of the Option that Executive furnish
a written representation that he is purchasing or acquiring the Option Shares
for investment and not with a view to resale or distribution to the public, and
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. Executive hereby represents and warrants that he understands that the
Option Shares and the Restricted Shares are "restricted securities," as defined
in Rule 144 under the Securities Act, and that any resale of the Option Shares
or the Restricted Shares must be in compliance with the registration
requirements of the Securities Act or an exemption therefrom. Each certificate
representing Option Shares or Restricted Shares shall bear the legend set forth
below:
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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 STOCK OPTION
AND RESTRICTED AWARD AGREEMENT, OF EVEN DATE HEREWITH, BETWEEN THE COMPANY
AND ONE OF ITS 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.
Further, if the Company determines that the listing or qualification of the
Option Shares under any securities or other applicable law is necessary in order
to avoid a violation of any securities laws, the Option shall not be
exercisable, in whole or in part, unless and until such listing or
qualification, or a consent or approval with respect thereto, shall have been
effected or obtained free of any conditions not acceptable to the Company,
PROVIDED, that the Company shall pursue such listing or qualification diligently
and in good faith.
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 or the Option 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
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interest in or lien on, any of the Restricted Shares or Option 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 Company will not transfer any of said
Restricted Shares or Option Shares on its books nor will any of the
Restricted Shares or Option 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 Option, 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 this Agreement shall govern.
17. AMENDMENTS. This Agreement may be amended or modified at any
time only by an instrument in writing signed by each of the parties hereto.
18. RIGHTS AS A STOCKHOLDER. Neither Executive nor any of
Executive's successors in interest shall have any rights as a stockholder of the
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Company with respect to any shares of Common Stock subject to the Option until
the date of issuance of a stock certificate for such shares of Common Stock.
19. AGREEMENT NOT A CONTRACT OF EMPLOYMENT. Neither the Plan, the
granting of the Restricted Stock award and the Option, 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 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.
20. 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.
21. DISPUTE RESOLUTION. Any dispute arising under this Agreement
shall be resolved in accordance with the arbitration provisions set forth in
Annex A, which is attached hereto, and such arbitration provisions shall be
deemed to be incorporated herein by this reference.
22. 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), 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 or Option Shares acquired under this Agreement without the
prior written consent of the Company or its underwriters, PROVIDED, that
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 commensurate job duties and
responsibilities in the Company is subject, or that would prevent Executive from
effectuating a sale pursuant to Section 2.5 of the Stockholders Agreement or
Section 3.1 of the Stockholders Agreement.
23. COORDINATION WITH EMPLOYMENT CONTRACT. This Agreement supersedes
any and all other agreements, either oral or in writing, between the parties
hereto with respect to the employment of Executive by the Company and the
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compensation payable therefor; PROVIDED, that that certain employment agreement
between Executive and the Company dated as of May 9, 1995, as extended (the
"Employment Agreement"), shall be superseded only with respect to those matters
that are addressed herein, including but not limited to (i) the right of
Executive to receive grants of options, restricted stock or other equity based
compensation with respect to his employment with the Company, (ii) the
definition of "Cause" and the circumstances under which Executive may be
terminated therefor and (iii) the method by which disputes regarding Executive's
employment with the Company may be resolved. In the event of any other
conflicts between the terms of the Employment Agreement and this Agreement, the
terms of this Agreement shall prevail. In all other respects, the Employment
Agreement shall remain in effect in accordance with its terms as in effect on
the date hereof.
24. 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, of even date herewith, between Executive and the Company (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 Account under the Deferred Compensation
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 /s/ Xxxx X. XxXxxxxxxx
-------------------------------
Name: Xxxx X. XxXxxxxxxx
-----------------------------
Title: Chief Financial Officer
----------------------------
The undersigned hereby accepts and agrees to all the terms and provisions of the
fore-
15
going Agreement and to all the terms
and provisions of the Plan and the
Stockholders Agreement herein
incorporated by reference.
/s/ Xxxx Xxxxxxxxxx
--------------------------------------
Executive
Address: 000 Xxxx Xxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
SCHEDULE
Pursuant to the Instructions to Item 601 of Regulation S-K, the registrant is
filing only the foregoing copy of the foregoing document, which is
substantially identical in all material respects except as to the parties
thereto and the address for notices as certain other documents required to be
filed as an exhibit to this Form 10-K. The registrant has omitted to file
five other agreements which differ from the foregoing document only in that
each of Xxxxxx X. Xxxxxxx, Xxxx X. Xxxxxxxx, Xxxxx X. Xxxxxxxx, Xxxxx X.
Xxxxxxxxx and Xxxxx X. Xxxxx, Xx. are parties thereto instead of Xxxx
Xxxxxxxxxx, and in that such parties' respective notice addresses are
different. The registrant undertakes to file copies of such documents at the
request of the Commission.
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ANNEX A
ARBITRATION
Except as necessary for the Company and its subsidiaries, affiliates,
successors or assigns or Executive to specifically enforce or enjoin a breach of
this Agreement (to the extent such remedies are otherwise available), the
parties agree that any and all disputes that may arise in connection with,
arising out of or relating to this Agreement, or any dispute that relates in any
way, in whole or in part, to Executive's employment with the Company or any
subsidiary, the termination of that employment or any other dispute by and
between the parties or their subsidiaries, affiliates, successors or assigns,
shall be submitted to binding arbitration in Las Vegas, Nevada according to the
National Employment Dispute Resolution Rules and procedures of the American
Arbitration Association. The parties agree that the prevailing party in any
such dispute shall be entitled to reasonable attorneys' fees, costs, and
necessary disbursements in addition to any other relief to which he or it may be
entitled. This arbitration obligation extends to any and all claims that may
arise by and between the parties or their subsidiaries, affiliates, successors
or assigns, and expressly extends to, without limitation, claims or causes of
action for wrongful termination, impairment of ability to compete in the open
labor market, breach of an express or implied contract, breach of the covenant
of good faith and fair dealing, breach of fiduciary duty, fraud,
misrepresentation, defamation, slander, infliction of emotional distress,
disability, loss of future earnings, and claims under the Nevada constitution,
the United States Constitution, and applicable state and federal fair employment
laws, federal and state equal employment opportunity laws, and federal and state
labor statutes and regulations, including, but not limited to, the Civil Rights
Act of 1964, as amended, the Fair Labor Standards Act, as amended, the Americans
With Disabilities Act of 1990, as amended, the Rehabilitation Act of 1973, as
amended, the Employee Retirement Income Security Act of 1974, as amended, the
Age Discrimination in Employment Act of 1967, as amended, and any other state or
federal law.
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