PH06/159164.8
Exhibit 10.6
RESTATED AMENDMENT
THIS RESTATED AMENDMENT, dated as of January 6, 1999, is
between Players International, Inc. (together with its successors
or assigns, the "Company") and Xxxxx X. Xxxxxx ("Executive").
W I T N E S S E T H:
WHEREAS, the Company and Executive are parties to an
Employment Agreement dated as of August 1, 1996 as amended by
Amendment dated September 29, 1998 (the "Employment Agreement"),
and the Company and Executive now wish to restate the Amendment
to the Employment Agreement.
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein and for other good and valuable
consideration, the Company and Executive agree to restate the
September 29, 1998 Amendment in its entirety so that the changes
agreed to therein are revised to read as follows:
1. Section 1(h) is amended by deleting subsections (i)(A)
and (i)(B) in their entirety.
2. Paragraph 1(l) is amended in its entirety to read as
follows:
(l) "Term of Employment" shall mean the
period of employment specified in Paragraph 2.
3. Paragraph 2 is amended by revising subparagraph (b) and
adding a new subparagraph (c) to read as follows:
(b) The Term of Employment shall commence on
October 1, 1996 and shall, unless sooner terminated as
provided in Paragraph 9 or unless extended by the
Company and Executive by mutual written agreement,
terminate on the close of business on February 1, 1999
(February 1, 1999 or any date to which the Company and
Executive have extended this Agreement is referred to
as the "Expiration Date").
(c) Between February 1, 1999 and July 31, 1999,
if the Company commences or continues active
negotiations with any party with respect to a potential
Change in Control that has received active
consideration by the Board prior to January 31, 1999,
Executive and the Company will mutually agree as to the
time, if any, that Executive will devote to such
negotiations and the compensation that Executive will
receive for his services.
4. Section 3(a) is amended to read as follows:
(a) After December 31, 1998, during the Term of
Employment, Executive shall no longer be employed as
the Chief Financial Officer or Treasurer but shall
continue to be employed as an Executive Vice President
of the Company, with such duties as the Company's Chief
Executive Officer may assign. Executive shall report
directly to and be subject to supervision by the
Company's Chief Executive Officer.
5. Paragraph 9(c) is amended in its entirety to read as
follows:
(c) Termination Without Cause; Constructive
Termination Without Cause; Expiration of the Agreement.
In the event Executive's employment is terminated by
the Company without Cause (which shall not include a
termination pursuant to Paragraph 9(a) or 9(d)) or in
the event of a Constructive Termination Without Cause,
or in the event this Agreement expires by its terms on
the Expiration Date set forth in Paragraph 2 and
Executive thereupon terminates employment, Executive,
upon executing and not revoking a release of the
Company as to all matters arising in the course of his
employment by the Company and the termination thereof,
in the form attached as Exhibit C to the Employment
Agreement, shall be entitled to receive:
(i) unpaid Base Compensation earned or
accrued through his date of termination and:
(A) in the case of expiration of this
Agreement by its terms on the Expiration Date set
forth in Paragraph 2, an amount equal to
Executive's Base Compensation payments, at the
rate in effect at the time of Executive's
termination, for a period of six months following
termination of his employment, which amount shall
be paid in a lump sum cash payment upon
termination of employment and shall not be reduced
by a present value calculation; or
(B) in all other cases to which this
Paragraph 9(c) is applicable, continued Base
Compensation payments, at the rate in effect at
the time of his termination, for a period of 12
months following termination of his employment or
through the end of the Term of Employment,
whichever is longer, payable, at Executive's
option, either (1) over such 12 months or the
remaining Term of Employment, as the case may be,
or (2) in a lump-sum payment promptly following
termination of Executive's employment equal to the
then present value using a discount rate per annum
determined by reference to the discount rate then
published by the Pension Benefit Guaranty
Corporation for determining the value of immediate
annuities (the "Present Value") of the remaining
Base Compensation due Executive through the end of
such 12 months or the remaining Term of
Employment;
(ii) except in the case of a termination of
employment by reason of expiration of this Agreement on
the Expiration Date set forth in Paragraph 2, continued
performance bonuses for a period of 12 months following
termination of his employment or through the end of the
Term of Employment, whichever is longer, in amounts
determined under the then applicable program of the
Company to the extent then applicable to Executive, or,
to the extent such amounts are not reasonably
determinable, in amounts based on performance bonuses
paid to Executive for the last complete fiscal year of
the Company ended prior to the completion of such 12-
month period;
(iii) any performance or special incentive
bonus earned but not yet paid; if Executive's
employment terminates by reason of expiration of this
Agreement on the Expiration Date set forth in Paragraph
2, Executive shall receive pursuant to this Paragraph
(iii) a lump sum cash payment upon termination of
employment equal to a pro rata portion (based on the
portion of the fiscal year completed as of the date of
Executive's termination of employment) of the target
annual performance bonus in effect for Executive for
the fiscal year in which Executive's termination of
employment occurs; provided that if Executive receives
payment of all or a portion of his target annual
performance bonus for the 1999 fiscal year before his
termination date, any payment under this subsection
(iii) upon his termination of employment during the
1999 fiscal year shall be reduced by the amount of such
payment;
(iv) reimbursement for expenses incurred but not
yet reimbursed by the Company pursuant to Paragraph 8;
(v) the immediate vesting of all stock options
previously granted to Executive, notwithstanding the
terms of any such grant to the contrary, with the
ability to exercise any such options for 12 months
following the date of termination or, if there is a
Pre-August 1999 Agreement, as hereinafter defined, for
such longer period as is provided in Section 9(d)
hereof, but in no event after the fifth anniversary of
the date of grant or, in the case of the November 19,
1997 option grant (the "1997 Option"), the tenth
anniversary of the date of grant; provided, however,
that the foregoing shall not apply to the Non-Qualified
Stock Option and Stock Appreciation Right granted to
Executive on September 19, 1996 (the "1996 Option and
SAR"); the 1996 Option and SAR shall remain outstanding
through July 31, 1999 or, if later, for six months
after Executive's termination of employment (but not
after September 18, 2001), and if there is a Pre-August
1999 Agreement and a Change in Control is thereafter
consummated, the 1996 Option and SAR shall remain
outstanding (but not beyond September 18, 2001) pending
the occurrence of a Change in Control, and the
provisions of Paragraph 9(d) shall apply;
(vi) any other compensation and benefits to which
he may be entitled under applicable plans, programs and
agreements of the Company and the continuation of all
Employee Benefit Programs provided under Paragraph 7
during the period for which Executive would receive
payments under clause (i) above if such payments were
not paid in a lump sum; provided, however, that in the
event the Company is precluded from providing coverage
under any such program by applicable law or regulation
it may choose to provide Executive with a payment equal
to the cost of such coverage without regard to tax
effect.
6. Paragraph 9(d) is amended by adding a new paragraph to the
end to read as follows:
If Executive's employment terminates by reason of
expiration of this Agreement pursuant to Paragraph 9(c)
and the Company has theretofore entered, or thereafter
enters, into an agreement on or before July 31, 1999 to
effect a Change in Control transaction which received
active consideration by the Board before January 31, 1999
(a "Pre-August 1999 Agreement"), the consummation of the
Change in Control shall be considered a "Termination Upon
a Change in Control" for purposes of this Agreement, and
Executive shall be entitled to receive the payments and
benefits described in this Paragraph 9(d) upon the Change
in Control. The payments and benefits described in this
Paragraph 9(d) shall be provided promptly following the
consummation of the Change in Control and, unless
otherwise agreed by the parties in writing, shall be
determined by reference to the benefit that would have
been paid assuming a Termination Upon a Change in Control
had occurred on February 1, 1999. Any amounts previously
paid to Executive upon his termination of employment
under Paragraph 9(c) shall be credited against the
payments to be made under this Paragraph 9(d). For
purposes of subparagraph (v) above, all of Executive's
outstanding stock options which have not theretofore
become vested (including the 1996 Option and SAR) shall,
notwithstanding any provision of the option agreements to
the contrary, continue in effect and become fully vested
upon the Change in Control, and Executive shall have the
ability to exercise his outstanding stock options until
the date that is 12 months following the Change in
Control, but in no event shall the options remain in
effect after the fifth anniversary of the date of grant
or, in the case of the 1997 Option, the tenth anniversary
of the date of grant.
7. In all respects not amended, the Employment Agreement is
hereby ratified and confirmed.
IN WITNESS WHEREOF, the undersigned have executed this Restated
Amendment as of the date first above written.
PLAYERS INTERNATIONAL, INC.
__________________________________
Xxxxxx X. Xxxxxxxx
Chief Executive Officer
___________________________________
Xxxxx X. Xxxxxx
