AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 16, 1998
REGISTRATION NO. 333-
======================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
RIO HOTEL & CASINO, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
NEVADA 95-3671082
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3700 WEST FLAMINGO ROAD, LAS VEGAS, NEVADA 89103
(Address of registrant's principal executive offices)
RIO HOTEL & CASINO, INC. 1995 LONG-TERM INCENTIVE PLAN
(Full title of the plan)
JAMES A. BARRETT, JR.
RIO HOTEL & CASINO, INC.
3700 WEST FLAMINGO ROAD
LAS VEGAS, NEVADA 89103
(702) 252-7733
(Name, address, and telephone number, including area code, of
agent for service)
PLEASE SEND COPIES OF ALL CORRESPONDENCE TO:
MICHAEL J. BONNER
SHERWOOD N. COOK
KUMMER KAEMPFER BONNER & RENSHAW
3800 HOWARD HUGHES PARKWAY
SEVENTH FLOOR
LAS VEGAS, NEVADA 89109
(702) 792-7000
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===========================================================================================================
PROPOSED PROPOSED AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE MAXIMUM OFFERING MAXIMUM AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED<F1> PRICE PER SHARE<F2> OFFERING PRICE<F2> FEE
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 2,000,000 shares $21.875 $43,750,000 $12,906
===========================================================================================================
<FN>
<F1> Represents the maximum number of shares which may be
distributed pursuant to this Registration Statement.
<F2> Computed pursuant to Rule 457(h) solely for purposes of
determining the registration fee, based upon the average of
the high and low prices of the Registrant's common stock as
reported on the New York Stock Exchange on June 11, 1998
($21.875).
</TABLE>
<PAGE>
INCORPORATION BY REFERENCE
This Registration Statement on Form S-8 is being filed
pursuant to General Instruction E to Form S-8 to register
2,000,000 additional securities (the "Shares") of the same class
as those securities for which a registration statement filed on
Form S-8 relating to Rio Hotel & Casino, Inc. 1995 Long-Term
Incentive Plan (the "Plan") is effective. The Shares are the
result of an amendment (the "Amendment") to the Plan which
increased the amount of Rio Hotel & Casino, Inc. (the "Company")
Common Stock reserved for issuance under the Plan from a total of
2,000,000 shares to a total of 4,000,000 shares. The Amendment
was adopted by the Company's board of directors on February 25,
1998 and approved by the Company's stockholders on May 21, 1998.
Pursuant to General Instruction E to Form S-8, except as
otherwise provided herein, the contents of the Company
registration statement on Form S-8 (Registration No. 333-12011)
filed with the Securities and Exchange Commission on September
13, 1996 and relating to the Plan, are hereby incorporated by
this reference.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
5.01 Opinion of Kummer Kaempfer Bonner & Renshaw re:
legality of the securities being registered.
10.01 Rio Hotel & Casino, Inc. 1995 Long-Term Incentive
Plan (as approved May 21, 1998).
23.01 Consent of Arthur Andersen LLP.
23.02 Consent of Kummer Kaempfer Bonner & Renshaw included
in Exhibit 5.01.
24.01 Power of Attorney, contained on page 3.
2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the
registrant certifies that it has reasonable grounds to believe
that it meets all the requirements for filing on Form S-8 and has
duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Las Vegas, State of Nevada, on June 15, 1998.
RIO HOTEL & CASINO, INC.
By: /s/ Anthony A. Marnell II
Anthony A. Marnell II
Chairman of the Board of Directors
and Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
The undersigned directors and officers of Rio Hotel &
Casino, Inc. hereby appoint James A. Barrett, Jr. or Ronald J.
Radcliffe, and each of them, as attorney-in-fact for the
undersigned, with full power of substitution, for and in the
name, place and stead of the undersigned, to sign and file with
the Securities and Exchange Commission under the Securities Act
any and all amendments (including post-effective amendments) and
exhibits to this registration statement and any and all
applications and other documents to be filed with the Securities
and Exchange Commission pertaining to the registration of the
securities covered hereby, with full power and authority to do
and perform any and all acts and things whatsoever requisite and
necessary or desirable, hereby ratifying and confirming all that
said attorney-in-fact, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
registration statement has been signed by the persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE Date
<S> <C> <C>
/s/ Anthony A. Marnell II Chairman of the Board of Directors and June 15, 1998
- ------------------------- Chief Executive Officer
Anthony A. Marnell II (Principal Executive Officer)
/s/ James A. Barrett, Jr. President, Chief Operating Officer and June 15, 1998
- ------------------------- Director
James A. Barrett, Jr.
3
<PAGE>
/s/ Ronald J. Radcliffe Vice President, Treasurer and Chief June 15, 1998
- ------------------------- Financial Officer (Principal Financial
Ronald J. Radcliffe and Accounting Officer)
/s/ John A. Stuart Director June 15, 1998
- -------------------------
John A. Stuart
/s/ Thomas Y. Hartley Director June 15, 1998
- -------------------------
Thomas Y. Hartley
/s/ Peter M. Thomas Director June 15, 1998
- -------------------------
Peter M. Thomas
/s/ David P. Hanlon Executive Vice President, Chief June 15, 1998
- ------------------------- Operating Officer and Director
David P. Hanlon
4
<PAGE>
EXHIBIT INDEX
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NUMBER
- ------- ----------- -----------
5.01 Opinion of Kummer Kaempfer Bonner & Renshaw 6
re: legality of the securities being
registered.
10.01 Rio Hotel & Casino, Inc. 1995 Long-Term 8
Incentive Plan (as approved May 21, 1998).
23.01 Consent of Arthur Andersen LLP. 19
23.02 Consent of Kummer Kaempfer Bonner & Renshaw
included in Exhibit 5.01.
24.01 Power of Attorney, contained on page 3.
5
</TABLE>
EXHIBIT 5.01
6
<PAGE>
[PRINTED ON LETTERHEAD OF KUMMER KAEMPFER BONNER & RENSHAW]
June 16, 1998
Securities and Exchange Commission
450 Fifth Street N.W.
Washington, D.C. 20549
Re: Rio Hotel & Casino, Inc.
1995 Long-Term Incentive Plan, as amended
Registration Statement on Form S-8
Ladies and Gentlemen:
As counsel to Rio Hotel & Casino, Inc., a Nevada
corporation (the "Company"), we are rendering this opinion in
connection with the registration by the Company of 2,000,000
shares (the "Shares") of common stock, $.01 par value, of the
Company and the proposed sale thereof. The Shares are to be
issued and sold in connection with the Rio Hotel & Casino, Inc.
1995 Long-Term Incentive Plan, as amended.
We have examined all instruments, documents and records
which we deemed relevant and necessary for the basis of our
opinion hereinafter expressed. In such examination, we have
assumed the genuineness of all signatures and the authenticity of
all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies.
Based on such examination and subject to the
limitations hereinabove provided, we are of the opinion that the
Company has the full power and authority under the laws of the
State of Nevada, and under the Company's Articles of
Incorporation and Bylaws, as amended, to issue the Shares and
that such Shares are validly authorized shares of common stock of
the Company, and when issued, upon receipt of payment therefor,
will be legally issued, fully paid and nonassessable and not
subject to any preemptive or similar rights.
We hereby consent to the filing of the foregoing
opinion as an exhibit to the above-referenced registration
statement filed with the Securities and Exchange Commission under
the Securities Act of 1933, as amended, and to the use of our
name in such registration statement.
Very truly yours,
/s/ Kummer Kaempfer Bonner & Renshaw
KUMMER KAEMPFER BONNER & RENSHAW
7
EXHIBIT 10.01
8
<PAGE>
RIO HOTEL & CASINO, INC.
1995 LONG-TERM INCENTIVE PLAN
Adopted by the Board of Directors January 26, 1995
As Amended by the Board of Directors on March 20, 1997
As Further Amended by the Board of Directors on February 25, 1998
As Approved by Stockholders on May 21, 1998
1. PURPOSE
The 1995 Long-Term Incentive Plan (the "Plan") is intended
to promote the interests of Rio Hotel & Casino, Inc. and its
subsidiaries (collectively the "Corporation") by offering certain
executive officers, employees and outside consultants of the
Corporation who are primarily responsible for the management,
growth and success of the business of the Corporation, the
opportunity to participate in a long-term incentive plan designed
to reward them for their services and to encourage them to
continue in the employ of or to provide services to the
Corporation.
2. DEFINITIONS
For all purposes of this Plan, the following terms shall
have the following meanings:
"Common Stock" means Rio Hotel & Casino, Inc. common stock,
$.01 par value.
"ISO" means incentive stock options qualified under
Section 422 of the Internal Revenue Code of 1986, as amended.
"Non-statutory Options" means stock options not qualified
under Section 422 of the Internal Revenue Code of 1986, as
amended.
"Restricted Shares" means shares of Common Stock which have
not been registered under federal securities law.
"Rio" means Rio Hotel & Casino, Inc.
"Subsidiary" means any company of which Rio owns, directly
or indirectly, the majority of the combined voting power of all
classes of stock.
3. ADMINISTRATION
The Plan shall be administered by a Committee (the
"Committee") composed solely of not less than two "non-employee
directors," as defined by Rule 16b-3(b)(3)(i) of the Securities
Exchange Act of 1934 (the "Exchange Act"), selected by, and
serving at the pleasure of, Rio's Board of Directors (the "Rio
Board").
Plan participants may each be granted options to purchase up
to a maximum of 500,000 shares in any one year. Initially, Rio
or a Subsidiary will recommend to the Committee persons to whom
awards may be granted. The Committee then shall have the
authority, subject to the terms of the Plan, to determine, based
upon
9
<PAGE>
recommendations, the persons to whom awards shall be granted
("Participants") the number of shares covered by each award, the
time or times at which awards shall be granted, the timing of
when awards shall vest, and the terms and provisions of the
instruments by which awards shall be evidenced, and to interpret
the Plan and make all determinations necessary or advisable for
its administration. The Committee shall notify the Rio Board of
all decisions concerning awards granted to Participants under the
Plan, the interpretation thereof, and determinations concerning
its administration.
4. ELIGIBILITY
Only persons who are employees, outside consultants,
officers or employee-directors of the Corporation shall be
granted awards. An ISO may not be issued to a person who, at the
time of grant is a non-employee of the Corporation or to a person
who owns stock of the Corporation possessing more than 10% of the
total combined voting power of all classes of stock of Rio or a
Subsidiary.
5. STOCK SUBJECT TO THE PLAN
The stock from which awards may be granted shall be shares
of Common Stock. When Restricted Shares are vested or when
options are exercised, Rio may either issue authorized but
unissued Common Stock or Rio may transfer issued Common Stock
held in its treasury. The Rio Board will fund the Plan to the
extent so required to provide Common Stock for the benefit of
Participants. The total number of shares of Common Stock which
may be granted as Restricted Shares or stock options shall not
exceed, in the aggregate, 4,000,000 shares in total. Any
Restricted Shares awarded and later forfeited are again subject
to award under the Plan. If an option expires, or is otherwise
terminated prior to its exercise, the shares of Common Stock
covered by such an option immediately prior to such expiration or
other termination shall continue to be available for grant under
the Plan.
6. GRANTING OF OPTIONS
The date of grant of options to Participants under the Plan
will be the date on which the options are awarded by the
Committee. The grant of any option to any Participant shall
neither entitle nor disqualify such Participant from
participating in any subsequent grant of options.
7. TERMS AND CONDITIONS OF OPTIONS
Options shall be designated Non-statutory Options or ISOs
and shall be evidenced by written instruments approved by the
Committee. Such instruments shall conform to the following terms
and conditions:
7.1 OPTION PRICE
The option price per share for an option shall be
established by the Committee, but shall be no less than the
fair market value of the Common Stock under option on the
day the option is granted, which shall be an amount equal to
the last reported sale price of the Common Stock on such
date on the New York Stock Exchange, or such other stock
exchange on which the Common Stock may be listed from time
to time. The option price shall be paid (i) in cash or
(ii) in Common Stock, including Common Stock underlying the
option being exercised, having a fair market value equal to
such option price or (iii) in a combination of cash and
Common Stock, including Common Stock underlying the option
being exercised. The fair market value of Common Stock
delivered to Rio of a Subsidiary, as applicable, pursuant to
the immediately preceding sentence shall be determined on
the basis of the last reported sale
10
<PAGE>
price of the Common Stock on the New York Stock Exchange on
the day of exercise or, if there was no such sale price on
the day of exercise, on the day next preceding the day of
exercise on which there was such a sale.
7.2 TERM AND EXERCISE OF OPTIONS
Unless otherwise provided in the instrument of grant
for special circumstances, no option shall be exercisable
sooner than six months and one day from the date of grant.
Except in special circumstances, each option shall
expire on the tenth anniversary of the date of its grant and
shall be exercisable according to a vesting schedule to be
determined by the Committee. However the Committee may
include in any option instrument, initially or by amendment
at any time, a provision making any installment or
installments exercisable at such earlier date, if the
Committee deems such provision to be in the interests of Rio
or a Subsidiary or necessary to realize the reasonable
expectation of the optionee.
After becoming exercisable, each installment shall
remain exercisable until expiration or termination of the
option. After becoming exercisable an option may be
exercised by the optionee from time to time, in whole or
part, up to the total number of shares with respect to which
it is then exercisable. The Committee may provide that
payment of the option exercise price may be made following
delivery of the certificate for the exercised shares.
Upon the exercise of a stock option, the purchase price
will be payable in full in cash or Common Stock, or a
combination thereof, as provided in Paragraph 7.1. Any
shares of Common Stock so assigned and delivered to Rio or
the Subsidiary, as applicable, in payment or partial payment
of the purchase price will be valued at Fair Market Value on
the exercise date. Upon the exercise of an option, Rio or a
Subsidiary, as applicable, shall withhold from the shares of
Common Stock to be issued to the Participant the number of
shares necessary to satisfy Rio's or the Subsidiary's, as
applicable, obligation to withhold federal taxes, such
determination to be based on the shares' Fair Market Value
on the date of exercise.
7.3 TERMINATION OF EMPLOYMENT OR ASSOCIATION
Subject to Section 7.7, if an optionee ceases to be
employed or associated with the Corporation, other than by
reason of death, retirement as determined under any of the
Corporation's pension plans, if any, or retirement after
attaining the age of seventy-two (72) years, all options
granted to such optionee and exercisable on the date of
termination of employment or association shall expire on the
earlier of (i) the tenth anniversary after the date of grant
or (ii) three months after the day such optionee's
employment or association with the Corporation ends.
Subject to Section 7.7, if an optionee retires either
pursuant to any of the Corporation's pension plans, if any,
or after attaining the age of seventy-two (72) years, all
options granted to such optionee, and exercisable on the
date of such optionee's retirement shall expire on the
earlier of (i) the tenth anniversary after the date of grant
or (ii) three years after the date of optionee's retirement
from the Corporation.
Any installment not exercisable on the date of such
termination or retirement shall expire and be thenceforth
unexercisable. Whether authorized leave of absence or
absence in military or governmental
11
<PAGE>
service may constitute employment for the purposes of the
Plan shall be conclusively determined by the Committee.
7.3(1) FORFEITURE
Subsequent to February 1, 1996, all stock option grants
issued pursuant to the Plan shall be subject to the
following forfeiture provisions:
(a) Unless otherwise provided for in the instrument of
grant, a Participant who resigns his or her position with
the Corporation without the written consent of the Rio
Board, and accepts employment, consulting, or other
compensation for services from a Competitor Company, as
defined below, within six (6) months after his or her last
day of employment or association with the Corporation shall:
1. forfeit all vested and unexercised options
in such Participant's account; and
2. reimburse the Corporation for all Profits,
as defined below, earned pursuant to any exercise
of options within six (6) months prior to or six (6)
months subsequent to the date of giving notice of such
Participant's resignation; provided however that all
options must be exercised within ninety (90) days of
the date of such Participant's termination, as provided
in Section 7.3. Further, such reimbursement payable
because of this provision shall be received by the
Corporation from such Participant within ninety (90)
days after the effective date of such Participant's
resignation.
(b) "Competitor Company" shall be defined as any
gaming or hotel company, or any affiliate thereof, located
within fifty (50) miles of any location in which the
Corporation conducts business as of the effective date of
such Participant's resignation.
(c) "Profits" shall be defined as the differential
between the exercise price and the last reported sale price
on the day of exercise, multiplied by the number of option
shares exercised.
(d) This Section 7.3(1) shall not apply to any
Participant who resigns:
1. subsequent to the Corporation entering into
a contractual commitment for a Change of Control of the
Corporation (as defined in Section 10), but prior to
an actual Change of Control; or
2. within one year following a Change of Control.
7.4 EXERCISE UPON DEATH OF OPTIONEE
If an optionee dies, the option may be exercised, to
the extent of the number of shares that the optionee could
have exercised on the date of such death, by the optionee's
estate, personal representative or beneficiary who acquires
the option by will or by the laws of descent and
distribution. Such exercise may be made at any time prior
to the earlier of (i) the tenth anniversary after the date
of grant or (ii) three years after the date of such
optionee's death. On the earlier of such dates, the option
shall terminate.
12
<PAGE>
7.5 ASSIGNABILITY
(a) A stock option shall not be assigned, alienated,
pledged, attached, sold, transferred or encumbered by a
Participant other than by will or by the laws of descent and
distribution, or in the case of a Non-statutory Option,
(1) by transfer without consideration by a
Participant, subject to such rules as the Committee may
adopt to preserve the purposes of the Plan (including
limiting such transfers to transfers by Participants
who are directors or executive officers of Rio or a
Subsidiary), to
(A) a member of his or her Immediate Family
(as defined),
(B) a trust solely for the benefit of the
Participant and his or her Immediate Family, or
(C) a partnership, limited liability
company or corporation whose only partners,
members or shareholders are the Participant and/or
his or her Immediate Family Members.
(each transferee described in (1) is hereafter referred
to as a "Permitted Transferee"), provided that the Committee
is notified in advance in writing of the terms and
conditions of any proposed transfer intended to be described
in (1) and it determines that the proposed transfer complies
with the requirements of the Plan and the applicable option
agreement. Any purported assignment, alienation, pledge,
attachment, sale, transfer or encumbrance that does not
qualify under (1) shall be void and unenforceable against
the Corporation. For purposes of the Plan, "Immediate
Family" means, with respect to a particular Participant, the
Participant's spouse, children or grandchildren (including
adopted and step children and grandchildren).
(b) The terms of the stock option shall apply to the
beneficiaries, executors and administrators of the
Participant and of the Permitted Transferees of the
Participant (including the beneficiaries, executors and
administrators of the Permitted Transferees), except that
Permitted Transfers shall not transfer any stock option
other than by will or by the laws of descent and
distribution.
(c) A stock option shall be exercised only by the
Participant (or his or her attorney in fact or guardian)
(including, in the case of a transferred option, by a
Permitted Transferee), or, in the case of the Participant's
death, by the Participant's executor or administrator
(including, in the case of a transferred option, by the
executor or administrator of the Permitted Transferee), and
no shares of Common Stock shall be issued by Rio unless the
exercise of a stock option is accompanied by sufficient
payment, as determined by Rio or a Subsidiary, as
applicable, to meet its withholding tax obligations on such
exercise or by other arrangements satisfactory to the
Committee to provide for such payment.
7.6 LIMITATION ON INCENTIVE STOCK OPTIONS
During a calendar year, the aggregate fair market value
of the option stock (determined at the time of the ISO
grant) for which ISOs are exercisable by a person for the
first time under the Plan, cannot exceed $100,000.
13
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7.7 EXPIRATION OF OPTIONS
Notwithstanding the provisions of Sections 7.3 and 7.4
above, the Committee may, within its discretion, designate
an expiration date for options granted hereunder which is
later than the expiration dates contained in Sections 7.3
and 7.4.
8. RESTRICTED SHARE AWARDS
8.1 GRANT OF RESTRICTED SHARE AWARDS
The Committee will determine for each Participant the
time or times when Restricted Shares shall be awarded and
the number of shares of Common Stock to be covered by each
Restricted Share award.
8.2 RESTRICTIONS
Shares of Common Stock issued to a Participant as a
Restricted Share award will be subject to the following
restrictions ("Share Restrictions"):
(a) Except as set forth in Paragraphs 8.4 and 8.5,
upon the termination of employment or association of a
Participant with the Corporation, all of the Participant's
Restricted Shares which are subject to Share Restrictions
will be forfeited and returned to Rio or, in the event such
Restricted Shares were provided to the Participant from
shares of Common Stock purchased by the Subsidiary, then the
Restricted Shares will be returned to the Subsidiary. In
either case, all rights of the Participant to such
Restricted Shares will terminate without any payment of
consideration by Rio or the Subsidiary with which the
Participant is employed or associated, unless the
Participant maintains his or her employment or association
(including consulting arrangements) with Rio or a Subsidiary
for a period of time determined by the Committee.
(b) During the longer of the restriction period
("Restriction Period") relating to a Restricted Share award
or a period of six months and one day from the date of the
award, none of the Restricted Shares subject to such award
may be sold, assigned, bequeathed, transferred, pledged,
hypothecated or otherwise disposed of in any way by the
Participant.
(c) The Committee may require the Participant to enter
into an escrow agreement providing that the certificates
representing Restricted Shares sold or granted pursuant to
the Plan will remain in the physical custody of Rio or the
employing Subsidiary or an escrow holder during the
Restriction Period.
(d) Each certificate representing a Restricted Share
sold or granted pursuant to the Plan will bear a legend
making appropriate reference to the restrictions imposed on
the Restricted Share.
(e) The Committee may impose other restrictions on any
Restricted Shares sold pursuant to the Plan as it may deem
advisable, including without limitation, restrictions under
the Securities Act of 1933, as amended, under the
requirements of any stock exchange upon which such share or
shares of the same class are then listed and under any state
securities laws or other securities laws applicable to such
shares.
14
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8.3 RIGHTS AS A STOCKHOLDER
Except as set forth in Paragraph 8.2(b), the recipient
of a Restricted Share award will have all of the rights of a
stockholder of Rio with respect to the Restricted Shares,
including the right to vote the Restricted Shares and to
receive all dividends or other distributions made with
respect to the Restricted Shares.
8.4 LAPSE OF RESTRICTIONS AT TERMINATION OF EMPLOYMENT
In the event of the termination of employment, or
association of a Participant during the Restriction Period
by reason of death, total and permanent disability,
retirement as determined under any of the Corporation's
pension plans, if any, or discharge from employment other
than a discharge for cause, the Committee may, at its
discretion, remove Share Restrictions on Restricted Shares
subject to a Restricted Share award.
Restricted Shares to which the Share Restrictions have
not so lapsed will be forfeited and returned to the
Corporation as provided in Paragraph 8.2(a).
8.5 LAPSE OF RESTRICTIONS AT DISCRETION OF THE
COMMITTEE
The Committee may shorten the Restriction Period or
remove any or all Share Restrictions if, in the exercise of
its absolute discretion, it determines that such action is
in the best interests of the Corporation and equitable to
the Participant.
8.6 LISTING AND REGISTRATION OF SHARES
The Corporation may, in its reasonable discretion,
postpone the issuance and/or delivery of Restricted Shares
until completion of stock exchange listing, or registration,
or other qualification of such Restricted Shares under any
law, rule or regulation.
8.7 DESIGNATION OF BENEFICIARY
A Participant may, with the consent of the Committee,
designate a person or persons to receive, in the event of
death, any Restricted Shares to which such Participant would
then be entitled. Such designation will be made upon forms
supplied by and delivered to the Committee and may be
revoked in writing by the Participant. If a Participant
fails effectively to designate a beneficiary, then such
Participant's estate will be deemed to be the beneficiary.
8.8 WITHHOLDING OF TAXES FOR RESTRICTED SHARES
When the Participant, as holder of the Restricted
Shares, recognizes income, either on the Date of Grant or
the date the restrictions lapse, Rio or a Subsidiary, as
applicable, shall withhold from the shares of Common Stock,
the number of shares necessary to satisfy Rio's or the
Subsidiary's, as applicable, obligation to withhold federal
taxes, such determination to be based on the shares' Fair
Market Value as of the date income is recognized.
15
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9. CAPITAL ADJUSTMENTS
The number and price of Common Stock covered by each award
of options and/or Restricted Shares and the total number of
shares that may be granted or sold under the Plan shall be
proportionally adjusted to reflect, subject to any required
action by stockholders, any stock dividend or split,
recapitalization, merger, consolidation, spin-off,
reorganization, combination or exchange of shares or other
similar corporate change.
10. CHANGE OF CONTROL
Notwithstanding the provisions of Section 7, in the event of
a change of control, all share restrictions on all Restricted
Shares will lapse and vesting on all unexercised stock options
will accelerate to the change of control date. For purposes of
this plan, a "Change of Control" of Rio shall be deemed to have
occurred at such time as (a) any "person" (as that term is used
in Section 13(d) and 14(d) of the Exchange Act), other than
Anthony A. Marnell II, James A. Barrett, or their affiliates, or
an employee benefit plan of the Corporation becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of Rio representing
25.0% or more of the combined voting power of Rio's outstanding
securities ordinarily having the right to vote at the election of
directors; or (b) individuals who constitute the Rio Board on the
date hereof (the "Incumbent Board") cease for any reason to
constitute at least a majority thereof; or (c) the approval by
Rio's stockholders of the merger or consolidation of Rio with any
other corporation or business organization, the sale of all or
substantially all the assets of Rio, or the liquidation or
dissolution of Rio; or (d) a proxy statement is distributed
soliciting proxies from the stockholders of Rio seeking
stockholder approval of a plan of reorganization, merger or
consolidation of Rio with one or more corporations as a result of
which the outstanding shares of Rio's securities are actually
exchanged for or converted into cash or property or securities
not issued by Rio; or (e) at least a majority of the Incumbent
Board who are in office immediately prior to any action proposed
to be taken by Rio determine that such proposed action, if taken,
would constitute a change of control of Rio and such action is
taken.
11. APPROVALS
The issuance of shares pursuant to this Plan is expressly
conditioned upon obtaining all necessary approvals from all
regulatory agencies from which approval is required, including
gaming regulatory agencies, and upon obtaining stockholder
ratification of the Plan.
12. EFFECTIVE DATE OF PLAN
The effective date of the Plan is January 26, 1995.
13. TERM AND AMENDMENT OF PLAN
This Plan shall expire on January 30, 2005 (except to
options and Restricted Shares outstanding on that date). The Rio
Board may terminate or amend the Plan in any respect at any time,
except that, without the approval of the holders of a majority of
the outstanding Common Stock: the total number of shares that
may be sold, issued or transferred under the Plan may not be
increased (except by adjustment pursuant to Section 9); the
provisions of Section 4 regarding eligibility may not be
modified; the purchase price at which shares may be offered
pursuant to options may not be reduced (except by adjustment
pursuant to Section 9); and the expiration date of the Plan may
not be extended and no change may be made which would cause the
Plan not to comply with Rule 16b-3 of the Exchange Act. No
action of the Rio Board or Rio's stockholders, however, may,
without the
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<PAGE>
consent of an optionee or Restricted Shares grantee, alter or
impair such Participant's rights under any option or Restricted
Shares previously granted.
14. NO RIGHT OF EMPLOYMENT
Neither the action of Rio in establishing this Plan, nor any
action taken by the Rio Board, the board of directors of a
Subsidiary, or the Committee, nor any provision of the Plan
itself, shall be construed to limit in any way the right of Rio
to terminate a Participant's employment or association at any
time; nor shall it be evidence of any agreement or understanding,
expressed or implied, that the Corporation will employ an
employee in any particular position nor ensure participation in
any future compensation or stock purchase program.
15. WITHHOLDING TAXES
Rio or the Subsidiary, as applicable, shall have the right
to deduct withholding taxes from any payments made pursuant to
the Plan or to make such other provisions as it deems necessary
or appropriate to satisfy its obligations to withhold federal,
state or local income or other taxes incurred by reason of
payments or the issuance of Common Stock under the Plan.
Whenever under the Plan, Common Stock is to be delivered upon
vesting of Restricted Shares or exercise of an option, the
Committee shall be entitled to require as a condition of delivery
that the Participant remit or provide for the withholding of an
amount sufficient to satisfy all federal, state and other
government withholding tax requirements related thereto.
16. PLAN NOT A TRUST
Nothing contained in the Plan and no action taken pursuant
to the Plan shall create or be construed to create a trust of any
kind, or a fiduciary relationship, between the Corporation and
any Participant, the executor, administrator or other personal
representative, or designated beneficiary of such Participant, or
any other persons. If and to the extent that any Participant or
such Participant's executor, administrator or other personal
representative, as the case may be, acquires a right to receive
any payment from the Corporation pursuant to the Plan, such right
shall be no greater than the right of an unsecured general
creditor of the Corporation.
17. NOTICES
Each Participant shall be responsible for furnishing the
Committee with the current and proper address for the mailing of
notices and delivery of agreements, Common Stock and cash
pursuant to the Plan. Any notices required or permitted to be
given shall be deemed given if directed to the person to whom
addressed at such address and mailed by regular United States
mail, first-class and prepaid. If any item mailed to such
address is returned as undeliverable to the addressee, mailing
will be suspended until the Participant furnishes the proper
address. This provision shall not be construed as requiring the
mailing of any notice or notification if such notice is not
required under the terms of the Plan or any applicable law.
18. SEVERABILITY OF PROVISIONS
If any provision of this Plan shall be held invalid or
unenforceable, such invalidity or unenforceability shall not
affect any other provisions hereof, and this Plan shall be
construed and enforced as if such provisions had not been
included.
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19. PAYMENT TO MINORS, ETC.
Any benefit payable to or for the benefit of a minor, an
incompetent person or other person incapable of receipting
therefor shall be deemed paid when paid to such person's guardian
or to the party providing or reasonably appearing to provide for
the care of such person, and such payment shall fully discharge
the Committee, the Corporation and other parties with respect
thereto.
20. HEADINGS AND CAPTIONS
The headings and captions herein are provided for reference
and convenience only, shall not be considered part of the Plan,
and shall not be employed in the construction of the Plan.
21. CONTROLLING LAW
This Plan shall be construed and enforced according to the
laws of the State of Nevada to the extent not preempted by
federal law, which shall otherwise control.
22. ENFORCEMENT OF RIGHTS
In the event the Corporation or a Participant is required to
bring any action to enforce the terms of this Plan, the
prevailing party shall be reimbursed by the non-prevailing party
for all costs and fees, including actual attorney fees, for
bringing and pursuing such action.
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EXHIBIT 23.01
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Exhibit 23.01
[PRINTED ON LETTERHEAD OF ARTHUR ANDERSEN, LLP]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our
report dated February 24, 1998 included in Rio Hotel & Casino,
Inc. Form 10-K for the year ended December 31, 1997 and to all
references to our Firm included in this registration statment.
/s/ Arthur Andersen, LLP
ARTHUR ANDERSEN, LLP
Las Vegas, Nevada
June 10, 1998
