SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
Current Report Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest
event reported: September 17, 1996
PLAYERS INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
Nevada 0-14897 95-41745832
(State or other (Commission File (I.R.S. Employer
jurisdiction of Number) Identification
incorporation) No.)
1300 Atlantic Avenue, Suite 800
Atlantic City, NJ 08401
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:(609) 449-7777
(Not applicable)
(Former name or former address, if changed since last report)
Item 5. Other Events
On September 9, 1996, Players International, Inc. (the
"Company") announced senior management changes and an expansion
of its Board of Directors by way of a press release, the terms of
which are attached hereto and incorporated by reference herein as
though a part of this Item 5. In connection therewith, Edward
Fishman and David Fishman (the "Fishmans") retired from the
Company and executed separate agreements which became effective
on September 17, 1996 (the "Retirement Agreements").
Each of the Retirement Agreements provides the Fishmans
with severance benefits equal to the salary, bonus and fringe
benefits, prerequisites and retirement accruals which approximate
the amounts the Fishmans may have been entitled to receive during
the succeeding three years assuming employment continued with the
Company and based upon such amounts and benefits paid to each of
the Fishmans for the preceding three years. The cash amounts
associated therewith are payable in four equal installments of
$500,000, less tax withholding, as of September 17, 1996 and on
each of the three succeeding anniversaries (the "Installment
Payments"), subject to acceleration in certain events described
below. With regard to each of the Fishmans, the Company
accelerated the vesting of outstanding options to purchase 90,000
shares of Company Common Stock at $11.50 per share, which options
were scheduled to vest in full on April 14, 1997. The Company
also agreed that Edward Fishman could exercise currently
exercisable options through September 9, 1997, and that David
Fishman could exercise currently exercisable options for a one-
year period following the cessation of consulting services (i.e.,
until the earlier of March 31, 1997 or the opening of the
Company's Maryland Heights project) to be provided pursuant to
his Retirement Agreement. The Retirement Agreements also provide
for continuation, at current cost levels, of long-term care
insurance and medical insurance through age 65, with any
increases in future premiums payable by each of the Fishmans.
The Retirement Agreements provide that, subject to the
consent of the Company, each of the Fishmans may request in
writing at any time, and from time to time, that all or any
unpaid Installment Payment which is due or scheduled to become
due in the future be paid currently in the form of shares of
Company Common Stock if written notice of such election is
delivered to the Company (which, when given, represents the
"Stock Election Date") and such election is not revoked prior to
the close of business on the fourth trading day following the
Stock Election Date (the "Stock Payment Date"). Any payment so
authorized by the Company in the form of Company Common Stock (a
"Stock Payment") would be made based upon the following fair
market valuation methodology: the number of shares issuable
pursuant to a Stock Payment shall be determined based on the
average reported high and low trading places of the Company
Common Stock for each of the five trading days beginning on the
Stock Election Date and ending on the Stock Payment Date, less
applicable tax withholding; and any Stock Payment which satisfies
part of, but not all of, the total aggregate outstanding
Installment Payment shall be deemed to satisfy Installment
Payment amounts in their reverse order of due date.
The Fishmans may also be entitled to accelerated
payment of any outstanding Installment Payment, which amount
shall be payable at the election of the Fishmans in a lump sum
payment in cash or Company Common Stock, in the event of a change
in control of the Company (as defined in the Retirement
Agreements). The Fishmans have agreed to become subject to
certain confidentiality, non-solicitation and non-competition
agreements, as part of the Retirement Agreements, which prohibit
(i) the misuse of Company confidential information, (ii) the
solicitation, hiring, or the encouragement of any solicitation or
hiring of any managerial or high-level Company employee for one
year following execution of the Retirement Agreements and (iii)
competition with the Company within certain geographic limits for
one year following execution of the Retirement Agreements.
Item 7. Financial Statements and Exhibits
EXHIBITS
Exhibit No. Exhibit Description
10.1 Retirement Agreement and General Release dated
September 9, 1996 between the Company and Edward
Fishman.
10.2 Retirement Agreement and General Release dated
September 9, 1996 between the Company and David
Fishman.
99.1 Press Release dated September 9, 1996.
SIGNATURE
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly authorized.
PLAYERS INTERNATIONAL, INC.
(Registrant)
By /s/ Steven P. Perskie
Steven P. Perskie
Executive Vice President and
General Counsel
Dated: September 19, 1996
EXHIBIT 10.1
CONFIDENTIAL RETIREMENT AGREEMENT
AND GENERAL RELEASE
THIS AGREEMENT, made and entered into on this 9th day
of September, 1996 by and between Players International, Inc., a
corporation organized under the laws of the state of Nevada (the
"Company"), and Edward Fishman, a resident of Malibu, California
("Fishman").
W I T N E S S E T H:
WHEREAS, Fishman has informed the Company that he
wishes to take early retirement effective September 9, 1996, but
Fishman is willing to remain as Chairman of the Board of
Directors for the ensuing 12 months; and
WHEREAS, the Company and Fishman wish to enter into
an agreement to (i) clearly set forth the payments to which
Fishman shall be entitled notwithstanding his retirement, (ii)
provide for a release of the Company as to any claims arising out
of his employment including, without limitation, claims that
might be asserted by Fishman under the Age Discrimination in
Employment Act, as further described herein, (iii) provide the
Company with certain undertakings of Fishman, including his
agreement not to compete with it for a period of one year and
(iv) reaffirm Fishman's rights to indemnification by the Company
for actions taken within the scope of his employment;
NOW, THEREFORE, in consideration of the mutual
promises contained herein, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. The Parties hereby agree that Fishman's
retirement from employment will be effective September 9, 1996.
Notwithstanding Fishman's retirement, the Company shall nominate
Fishman to be Chairman of its Board of Directors (the "Board")
for the next 12 months and shall use its best efforts to cause
Fishman to be elected to the Board. If elected and so long as he
is a director, Fishman agrees to serve on the Board in a manner
consistent with the policies of the Board respecting conflicts of
interest and corporate opportunities. Each party represents and
warrants to the other that neither is aware of any conduct on the
part of the other that took place during Fishman's employment by
the Company that would subject the Company or Fishman to any
liability or litigation.
2. The Company agrees pay to Fishman or cause him
to receive the following amounts and benefits:
a. Severance equal to the salary, bonus, welfare
(other than the welfare benefits described in paragraphs b and c
below) and fringe benefits, perquisites and retirement accruals
which the parties agree approximates what Fishman may have been
entitled to receive during the next three years (based on such
amounts and benefits paid to Fishman for the preceding three
years) had his employment continued, payable in four equal annual
installments of $500,000 (made on the payment date specified
below and the next three anniversaries thereof), subject to
customary withholdings for income (at the rate applicable to
supplemental, non-periodic compensation) and employment taxes;
b. Continuation of his Company-paid long-term care
insurance (or comparable) until he attains age 65, at the
Company's current cost for a similarly situated individual as of
the date of this Agreement, as specified on Exhibit A hereto,
(the "Company's Cost"), with any increases in premium being paid
by Fishman from his own funds; provided, however, that in the
event the Company wishes to change its long-term care insurance
in a manner that will adversely affect Fishman, it shall notify
Fishman in writing at least 5 business days in advance and allow
him to exercise any applicable conversion rights in which case
all coverage from the Company shall thereafter cease but the
Company shall continue to reimburse Fishman for the cost of such
coverage up to the Company's Cost;
c. Continuation of medical benefits for Fishman,
his spouse and eligible dependents, on the same (or comparable)
basis provided to other senior level executives of the Company,
as in effect from time to time, until Fishman attains age 65, or,
at the election of the Company a tax equivalent payment equal to
the cost of such coverage which Fishman may use, at his election,
to purchase such coverage under the Company's then medical
program; provided, however, that the Company's Cost, other than
the tax equivalency payment, shall never be higher than the
amount it contributes for a similarly situated individual as of
the date of this Agreement, as specified on Exhibit A hereto,
with any increases in premium being paid by Fishman from his own
funds; and, provided, further, that in the event the Company
wishes to change all or any portion of its health benefit program
for employees generally in a manner that will adversely affect
Fishman, it shall notify Fishman in writing at least 5 business
days in advance and allow him to exercise any applicable
conversion rights in which case the affected coverage from the
Company shall thereafter cease but the Company shall continue to
reimburse Fishman for the cost of such affected coverage up to
the Company's Cost;
d. The right to request in writing a transfer to
Fishman of any insurance policies on Fishman's life maintained by
Company that have no cash surrender value and to purchase for
cash in an amount equal to the applicable cash surrender value
from the Company any policies that do have a cash value;
e. Fishman shall also be provided with all salary
due through the date of this Agreement and reimbursement of all
reasonable, ordinary and necessary business expenses related to
his employment by the Company incurred through the date of this
Agreement provided that such expenses are submitted to the
Company with appropriate documentation within 90 days of the date
of this Agreement; and
f. Fishman shall also receive reimbursement of all
reasonable expenses incurred in connection with the removal of
his clothing and personal effects from the Company's corporate
residences to his home in Malibu, California.
All payments or benefits shall be made or commence on the eighth
day following the execution (without revocation) of this
Agreement. Notwithstanding paragraph a above:
g. Fishman may request in writing at any time and
from time to time that all or any unpaid amount due or to become
due pursuant to that paragraph be paid currently in the form of
shares of common stock of the Company, such request to be
effective at the close of business on the fourth trading day
following the day that the notice is delivered to the Company
(the "Election Date"). If the request has not been revoked prior
to the Election Date, the Company shall determine, in its sole
discretion not to be unreasonably exercised, whether to permit
such distribution; if so approved, the number of shares shall be
determined based on the average of the high and low trading
prices of the shares on the principal exchange or trading market
on which the shares are then traded for the five trading days
beginning on the day of Fishman's initial request and
distribution shall be made, subject to customary withholdings for
income (at the rate applicable to supplemental, non-periodic
compensation) and employment taxes, on the day following the
Election Day and shall reduce the amounts thereafter due under
paragraph a in reverse order of due date. The Company represents
that the Board has approved the stock election granted to Fishman
hereunder in compliance with Rule 16b-3 of the Securities
Exchange Act of 1934. The Company further agrees that it will
keep effective, under the Securities Act of 1933, a registration
statement covering any issuance of the common stock to Fishman;
and
h. In the event of a Change of Control of the
Company, all installment payments remaining due under paragraph a
shall be accelerated and paid to Fishman in one lump sum, at
Fishman's sole written election, in cash or in shares of common
stock of the Company, valued on the basis of the closing price of
such shares on the principal exchange or trading market on which
the shares are then traded, for the day on which the Change of
Control occurs, subject to customary withholdings for income (at
the rate applicable to supplemental, non-periodic compensation)
and employment taxes, within 5 business days following the event
that results in the Change of Control. For purposes of this
paragraph h, the following terms shall have the meanings
specified:
1. "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
2. "Beneficial Owner" of any securities shall
mean:
(a) that such Person or any of such Person's
Affiliates or Associates, directly or indirectly, has the right
to acquire (whether such right is exercisable immediately or only
after the passage of time) pursuant to any agreement, arrangement
or understanding (whether or not in writing) or upon the exercise
of conversion rights, exchange rights, rights, warrants or
options, or otherwise; provided, however, that a Person shall not
be deemed the "Beneficial Owner" of securities tendered pursuant
to a tender or exchange offer made by such Person or any of such
Person's Affiliates or Associates until such tendered securities
are accepted for payment, purchase or exchange;
(b) that such Person or any of such Person's
Affiliates or Associates, directly or indirectly, has the right
to vote or dispose of or has "beneficial ownership" of (as
determined pursuant to Rule 13d-3 of the General Rules and
Regulations under the Exchange Act), including without limitation
pursuant to any agreement, arrangement or understanding, whether
or not in writing; provided, however, that a Person shall not be
deemed the "Beneficial Owner" of any security under this
subsection (ii) as a result of an oral or written agreement,
arrangement or understanding to vote such security if such
agreement, arrangement or understanding (A) arises solely from a
revocable proxy given in response to a public proxy or consent
solicitation made pursuant to, and in accordance with, the
applicable provisions of the General Rules and Regulations under
the Exchange Act, and (B) is not then reportable by such Person
on Schedule 13D under the Exchange Act (or any comparable or
successor report); or
(c) where voting securities are beneficially
owned, directly or indirectly, by any other Person (or any
Affiliate or Associate thereof) with which such Person (or any of
such Person's Affiliates or Associates) has any agreement,
arrangement or understanding (whether or not in writing) for the
purpose of acquiring, holding, voting (except pursuant to a
revocable proxy as described in the proviso to subsection (ii)
above) or disposing of any voting securities of the Company;
provided, however, that nothing shall cause a Person engaged in
business as an underwriter of securities to be the "Beneficial
Owner" of any securities acquired through such Person's
participation in good faith in a firm commitment underwriting
until the expiration of forty days after the date of such
acquisition.
3. "Change of Control" shall be deemed to have
taken place if (i) any Person (except the Griffin Group or its
Affiliates and Associates, Company management as of the Effective
Date and their Affiliates and Associates or the Company or any
employee benefit plan of the Company or of any Affiliate, any
Person or entity organized, appointed or established by the
Company for or pursuant to the terms of any such employee benefit
plan), together with all Affiliates and Associates of such
Person, shall become the Beneficial Owner in the aggregate of 30%
or more of the common stock then outstanding of the Company;
provided, however, that no "Change of Control" shall be deemed to
occur during any period in which any such Person, and its
Affiliates and Associates, are bound by the terms of a standstill
agreement under which such parties have agreed not to acquire
more than 30% of the common stock of the Company then outstanding
or to solicit proxies, (ii) consummation by the Company of a
reorganization, merger or consolidation (a "Business
Combination"), in each case, with respect to which all or
substantially all of the individuals and entities who were the
respective Beneficial Owners of the outstanding common stock
immediately prior to such Business Combination do not, following
such Business Combination, Beneficially Own, directly or
indirectly, more than 50% of, respectively, the then outstanding
shares of common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in the
election of directors, as the case may be, of the corporation
resulting from such Business Combination in substantially the
same proportion as their ownership immediately prior to such
Business Combination of the outstanding common stock, or (iii)
consummation of a complete liquidation or dissolution of the
Company or (ii) sale or other disposition of all or substantially
all of the assets of the Company other than to a corporation with
respect to which, following such sale or disposition, more than
50% of, respectively, the then outstanding shares of common stock
entitled to vote generally in the election of directors is then
owned beneficially, directly or indirectly, by all or
substantially all of the individuals and entities who were the
Beneficial Owners, respectively, of the outstanding common stock
immediately prior to such sale or disposition in substantially
the same proportion as their ownership of the outstanding common
stock immediately prior to such sale or disposition.
4. "Person" shall mean any individual, firm,
corporation, partnership or other entity.
3. Fishman agrees and acknowledges that the
Company, on a timely basis, has paid, or agreed to pay, to
Fishman all amounts due and owing based on his prior services and
that the Company has no obligation, contractual or otherwise to
Fishman, except as provided herein, nor does it have any
obligation to hire, rehire or re-employ Fishman in the future.
4. In full and complete settlement of any claims
that Fishman may have against the Company, including any possible
violations of the Age Discrimination in Employment Act, 29 U.S.C.
621 et seq., ("ADEA") in connection with his employment and his
retirement from employment, and for and in consideration of the
undertakings of the Company described herein, Fishman does hereby
REMISE, RELEASE, AND FOREVER DISCHARGE the Company, its
affiliates, officers, directors, shareholders, partners,
employees and agents, and its respective successors and assigns,
heirs, executors and administrators (hereinafter all included
within the term "the Company"), of and from any and all manner of
actions and causes of actions, suits, debts, claims and demands
whatsoever in law or in equity, which he ever had, now has, or
hereafter may have, or which Fishman's heirs, executors or
administrators hereafter may have, by reason of any action,
matter, cause or thing whatsoever arising in the course of his
employment by the Company from the beginning of Fishman's
employment to the date of this Agreement; and particularly, but
without limitation of the foregoing general terms, any claims
arising from or relating in any way to Fishman's employment
relationship, or his retirement from employment, by the Company,
including but not limited to, any claims which have been
asserted, could have been asserted, or could be asserted now or
in the future under any federal, state or local laws, including
any claims under ADEA, Title VII of the Civil Rights Act of 1964,
42 U.S.C. 2000e et seq. ("Title VII"), and any common law claims
now or hereafter recognized and all claims for counsel fees and
costs. Notwithstanding the foregoing, nothing contained herein
shall prevent Fishman from requiring the Company to fulfill its
obligations hereunder or under any employee pension benefit plan,
as defined in Section 3(2) of the Employee Retirement Income
Security Act of 1974, as amended, maintained by the Company and
in which Fishman participated or from asserting any rights to
indemnification that Fishman may have under the by-laws of the
Company or under any insurance policy purchased by it.
5. Fishman further agrees and covenants that,
except as may be necessary to enforce his rights hereunder, he,
directly or indirectly, will not file, charge, claim, sue or
cause or permit to be filed, charged, or claimed, any action for
damages, including injunctive, declaratory, monetary or other
relief against the Company, involving any matter occurring at any
time in the past up to the date of this Agreement in connection
with his employment or his retirement from employment, or
involving any continuing effects of any actions or practices
which may have arisen or occurred prior to the date of this
Agreement, including any charge of discrimination under ADEA or
Title VII. In addition, Fishman agrees and covenants that should
he, directly or indirectly, file, charge, claim, sue or cause or
permit to be filed, charged, or claimed, any action for damages,
including injunctive, declaratory, monetary or other relief, in
each case prohibited by the preceding sentence, despite his
agreement not to do so hereunder, then he will repay to the
Company all amounts (or the value of benefits) theretofore paid
under the terms of this Agreement and pay all of the costs and
expenses of the Company (including reasonable attorneys' fees)
incurred in the defense of any such action or undertaking and all
payments and benefits then being provided under Section 2 shall
cease immediately.
6. Fishman recognizes and acknowledges that by
reason of his employment by and service to the Company he has had
access to certain confidential and proprietary information
relating to the Company's business, which consists of customer
and related information, current and future marketing plans and
techniques, designs and drawings for developmental projects of
the Company and budgets and related financial information
(collectively referred to as "Confidential Information").
Fishman acknowledges that such Confidential Information is a
valuable and unique asset of the Company and Fishman covenants
that he will not, unless expressly authorized in writing by the
Company's Chief Executive Officer (the "CEO"), for a period of 12
months (24 months in the case of customer and related
information) from the date of this Agreement use any Confidential
Information or divulge or disclose any Confidential Information
to any person, firm or corporation, unless such information is in
the public domain through no fault of Fishman or except when
required to do so by a court of law, by any governmental agency
having supervisory authority over the business of the Company or
by any administrative or legislative body (including a committee
thereof) with apparent jurisdiction to order him to divulge,
disclose or make accessible such information in which case
Fishman will inform the Company in writing promptly of such
required disclosure, but in any event at least two business days
prior to disclosure. All written Confidential Information
(including, without limitation, in any computer or other
electronic format) which comes into Fishman's possession during
the course of his employment shall remain the property of the
Company. Immediately following the expiration of Fishman's
service on the Board, Fishman shall return to the Company any
written Confidential Information in his possession.
7.(a) For a period of one year after the date of this
Agreement, Fishman will not, except with the prior written
consent of the CEO, directly or indirectly, own, manage, operate,
join, control, finance or participate in the ownership,
management, operation, control or financing of, or be connected
as an officer, director, employee, partner, principal, agent,
representative, consultant or otherwise with, or use or permit
his name to be used in connection with, any business or
enterprise which owns or operates, or provides any services to an
owner or operator of, hotel casino(s) or river boat casino(s) or
other gaming establishment(s) anywhere within the Company's
"service area," as defined below; provided, however, that such
prohibitions shall not apply to Fishman's services in connection
with the merchandising businesses, as of the date of this
Agreement, of Marketing Innovations Inc. and International
Merchandise Concepts, and their subsidiaries, as of the date of
this Agreement. For the purposes of this Section, "service area"
shall mean the geographic area comprising the standard
metropolitan statistical area ("SMSA") surrounding the Company's
St. Louis location, 150 miles surrounding the Company's Lake
Charles and Metropolis locations and 50 miles surrounding the
Company's Mesquite location but shall not include Las Vegas,
Nevada or Atlantic City, New Jersey.
(b) The foregoing restrictions shall not be construed to
prohibit the ownership by Fishman of less than five percent (5%)
of any class of securities of any corporation which is engaged in
any of the foregoing businesses having a class of securities
registered pursuant to the Securities Exchange Act of 1934 (the
"Exchange Act"), provided that such ownership represents a
passive investment and that neither Fishman nor any group of
persons including Fishman in any way, either directly or
indirectly, manages or exercises control of any such corporation,
guarantees any of its financial obligations, otherwise takes any
part in its business, other than exercising his rights as a
shareholder, or seeks to do any of the foregoing.
(c) Fishman further covenants and agrees that for a
period of one year after the date of this Agreement, he will not,
directly or indirectly, solicit or hire, or encourage the
solicitation or hiring of, any person who was a managerial or
higher level employee of the Company at any time during the term
of Fishman's employment by the Company by any employer other than
the Company for any position as an employee, independent
contractor, consultant or otherwise. The foregoing covenant of
Fishman shall not apply to any person who is involuntarily
terminated by the Company or whose termination agreement with the
Company permits such a position or after 6 months have elapsed
after the date on which such person voluntarily terminates
employment from the Company.
8.(a) Fishman acknowledges and agrees that the
restrictions contained in Sections 6 and 7 are reasonable and
necessary to protect and preserve the legitimate interests,
properties, goodwill and business of the Company, that the
Company would not have entered into this Agreement in the absence
of such restrictions and that irreparable injury will be suffered
by the Company should Fishman breach any of the provisions of
those Sections. Fishman represents and acknowledges that (i) he
has been advised by the Company to consult his own legal counsel
in respect of this Agreement, and (ii) that he has had full
opportunity, prior to execution of this Agreement, to review
thoroughly this Agreement with his counsel.
(b) Fishman further acknowledges and agrees that a
breach of any of the restrictions in Sections 6 and 7 cannot be
adequately compensated by monetary damages. Fishman agrees that
the Company shall be entitled to preliminary and permanent
injunctive relief, without the necessity of proving actual
damages, as well as an equitable accounting of all earnings,
profits and other benefits arising from any violation of Sections
6 or 7, which rights shall be cumulative and in addition to any
other rights or remedies to which the Company may be entitled.
In the event that any of the provisions of Sections 6 or 7 should
ever be adjudicated to exceed the time, geographic, service, or
other limitations permitted by applicable law in any
jurisdiction, it is the intention of the parties that the
provision shall be amended to the extent of the maximum time,
geographic, service, or other limitations permitted by applicable
law, that such amendment shall apply only within the jurisdiction
of the court that made such adjudication and that the provision
otherwise be enforced to the maximum extent permitted by law.
(c) Fishman irrevocably and unconditionally (i)
agrees that any suit, action or other legal proceeding arising
out of Sections 6 or 7, including without limitation, any action
commenced by the Company for preliminary and permanent injunctive
relief and other equitable relief, may be brought in the United
States District Court for the District of New Jersey, or if such
court does not have jurisdiction or will not accept jurisdiction,
in any court of general jurisdiction in Atlantic City, New
Jersey, (ii) consents to the non-exclusive jurisdiction of any
such court in any such suit, action or proceeding, and (iii)
waives any objection which Fishman may have to the laying of
venue of any such suit, action or proceeding in any such court.
Fishman also irrevocably and unconditionally consents to the
service of any process, pleadings, notices or other papers in a
manner permitted by the notice provisions of Section 14 hereof.
9. The Company shall not describe the terms
surrounding Fishman's retirement from employment by the Company
in any proxy, press release or other communication to its
shareholders, employees or the public without first providing
Fishman with a copy of such intended communication. The Company
shall not publish any such communication without first obtaining
Fishman's approval (which shall not be unreasonably withheld),
except to the extent that the Company is advised by its legal
counsel that such communication is required by applicable law or
regulation in a form not approved by Fishman.
10. Fishman hereby agrees and acknowledges that
under this Agreement, the Company has agreed to provide him with
compensation and benefits, such as the payments and benefits due
under Section 2, that are in addition to any amounts to which he
otherwise would have been entitled, and that such additional
compensation is sufficient to support the covenants and
agreements by Fishman herein.
11. Fishman further agrees and acknowledges that
the undertakings of the Company as provided in this Agreement are
made to provide an amicable conclusion of Fishman's employment by
the Company and, further, that Fishman will not require the
Company to publicize anything to the contrary. Fishman and the
Company, its officers and directors, will not, disparage the
name, business reputation or business practices of the other.
12. Fishman hereby certifies that he has read the
terms of this Agreement, that he has been advised by the Company
to consult with an attorney and that he understands its terms and
effects. Fishman acknowledges, further, that he is executing
this Agreement of his own volition with a full understanding of
its terms and effects and with the intention, as expressed in
Section 4 hereof, of releasing all claims recited herein in
exchange for the consideration described herein, which he
acknowledges is adequate and satisfactory to him provided the
Company meets all of its obligations under this Agreement. The
Company has made no representations to Fishman concerning the
terms or effects of this Agreement other than those contained in
this Agreement or the other agreements referred to herein.
13. Fishman hereby acknowledges that he was
presented with this Agreement on September 9, 1996, and that he
was informed that he had the right to consider this Agreement and
the release contained herein for a period of twenty-one (21) days
prior to execution. Fishman also understands that he has the
right to revoke this Agreement for a period of seven (7) days
following execution, by giving written notice to the Company in
accordance with Section 14, in which event the provisions of this
Agreement shall be null and void, and the parties shall have the
rights, duties, obligations and remedies afforded by applicable
law.
14. All notices and other communications required or
permitted hereunder or necessary or convenient in connection
herewith shall be in writing and shall be delivered personally or
mailed by registered or certified mail, return receipt requested,
or by overnight express courier service, as follows:
If to the Company, to:
Players International, Inc.
1300 Atlantic Avenue
Atlantic City, NJ 08401
Attention: Chief Executive Officer
If to Fishman, to:
Edward Fishman
27234 Pacific Coast Highway
Malibu, CA 90265
or to such other names or addresses as the Company or Fishman, as
the case may be, shall designate by notice to the other party
hereto in the manner specified in this Section. Any such notice
shall be deemed delivered and effective when received in the case
of personal delivery, five days after deposit, postage prepaid,
with the U.S. Postal Service in the case of registered or
certified mail, or on the next business day in the case of
overnight express courier service.
15. Fishman shall not be required to mitigate the
amount of any payment or benefit provided for in this Agreement
by seeking other employment or otherwise and there shall be no
offset against amounts due Fishman under this Agreement on
account of any remuneration attributable to any subsequent
employment or self-employment that he may obtain.
16. Fishman shall be entitled to indemnification
against any liability incurred in connection with any proceeding
in which Fishman may be involved as a party or otherwise by
reason of the fact that Fishman is or was serving as an officer,
director or agent of the Company, or of any of its subsidiaries
or affiliates, to the maximum extent permitted by applicable law
as well as coverage under any directors and officers' liability
insurance maintained by the Company for its director or senior
level executives.
17. The Company shall (i) document its grant of an
option to Fishman in March of 1995 for 450,000 shares of its
common stock, subject to the vesting and other applicable terms
of such grant, (ii) cause its 1994 grant of an option to Fishman
to purchase 150,000 shares of its common stock to be fully vested
as of the date of this Agreement and (iii) cause all of Fishman's
outstanding vested options, subject to applicable vesting
provisions, as modified above, to be exercisable for one year
following the date of this Agreement. The Company shall also
continue to take all reasonable actions necessary to (iv) permit
Fishman to transfer such option to members of his family, (v)
permit Fishman to purchase all or a portion of the shares
thereunder with other shares previously owned by Fishman equal in
value to all or a portion of the exercise price and (vi) maintain
any and all registration statements in order that common stock
held by Fishman acquired upon the exercise of a stock option be
registered and freely tradable.
18. Fishman shall be entitled to reimbursement for
reasonable legal fees, and related costs, rendered to Fishman by
James D.C. Barrall, Esquire, and his firm, in connection with the
negotiation and preparation of this Agreement in an amount not to
exceed to $15,000.
19. In the event of any dispute under the provisions
of this Agreement other than a dispute in which the primary
relief sought is an equitable remedy such as an injunction, the
parties shall be required to have the dispute, controversy or
claim settled by arbitration in the City of Los Angeles,
California in accordance with the National Rules for the
Resolution of Employment Disputes then in effect of the American
Arbitration Association, before a panel of three arbitrators, two
of whom shall be selected by the Company and Employee,
respectively, and the third of whom shall be selected by the
other two arbitrators. Any award entered by the arbitrators
shall be final, binding and nonappealable and judgment may be
entered thereon by either party in accordance with applicable law
in any court of competent jurisdiction. This arbitration
provision shall be specifically enforceable. The arbitrators
shall have no authority to modify any provision of this Agreement
or to award a remedy for a dispute involving this Agreement other
than a benefit specifically provided under or by virtue of the
Agreement. If Employee prevails on any material issue which is
the subject of such arbitration or lawsuit, the Company shall be
responsible for all of the fees of the American Arbitration
Association and the arbitrators and any expenses relating to the
conduct of the arbitration and the Employee's reasonable legal
fees and expenses. Otherwise, each party shall bear his or its
own expenses relating to the conduct of the arbitration
(including attorneys' fees and expenses) and shall share the fees
of the American Arbitration Association.
20. This Agreement shall be interpreted and enforced
under the laws of the State of Nevada.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement on the day and year first above written.
ATTEST: PLAYERS INTERNATIONAL, INC.
____________________________ By:______________________________
Secretary HOWARD GOLDBERG
Chief Executive Officer
____________________________ _________________________________
Witness EDWARD FISHMAN
EXHIBIT 10.2
CONFIDENTIAL RETIREMENT AGREEMENT
AND GENERAL RELEASE
THIS AGREEMENT, made and entered into on this 9th day
of September, 1996 by and between Players International, Inc., a
corporation organized under the laws of the state of Nevada (the
"Company"), and David Fishman, a resident of Las Vegas, Nevada
("Fishman").
W I T N E S S E T H:
WHEREAS, Fishman has informed the Company that he
wishes to take early retirement effective September 9, 1996, but
Fishman is willing to remain a member of the Board of Directors
(the "Board") for the balance of his term and to render certain
consulting services to the Company; and
WHEREAS, the Company and Fishman wish to enter into
an agreement to (i) clearly set forth the payments to which
Fishman shall be entitled notwithstanding his retirement, (ii)
provide for a release of the Company as to any claims arising out
of his employment including, without limitation, claims that
might be asserted by Fishman under the Age Discrimination in
Employment Act, as further described herein, (iii) provide the
Company with certain undertakings of Fishman, including his
agreement not to compete with it for a period of one year and
(iv) reaffirm Fishman's rights to indemnification by the Company
for actions taken within the scope of his employment;
NOW, THEREFORE, in consideration of the mutual
promises contained herein, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. The Parties hereby agree that Fishman's
retirement from employment will be effective September 9, 1996.
Notwithstanding Fishman's retirement, he shall fulfill his term
as a member of the Board and shall make himself available to
consult with the Company's Chief Executive Officer (the "CEO") as
to the completion of the Company's Maryland Heights project until
the earlier of the completion of the project or March 31, 1997.
So long as he is a director, Fishman agrees to serve on the Board
in a manner consistent with the policies of the Board respecting
conflicts of interest and corporate opportunities. Each party
represents and warrants to the other that neither is aware of any
conduct on the part of the other that took place during Fishman's
employment by the Company that would subject the Company or
Fishman to any liability or litigation.
2. The Company agrees pay to Fishman or cause him
to receive the following amounts and benefits:
a. Severance equal to the salary, bonus, welfare
(other than the welfare benefits described in paragraphs b and c
below) and fringe benefits, perquisites and retirement accruals
which the parties agree approximates what Fishman may have been
entitled to receive during the next three years (based on such
amounts and benefits paid to Fishman for the preceding three
years) had his employment continued, payable in four equal annual
installments of $500,000 (made on the payment date specified
below and the next three anniversaries thereof), subject to
customary withholdings for income (at the rate applicable to
supplemental, non-periodic compensation) and employment taxes;
b. Continuation of his Company-paid long-term care
insurance (or comparable) until he attains age 65, at the
Company's current cost for a similarly situated individual as of
the date of this Agreement, as specified on Exhibit A hereto,
(the "Company's Cost"), with any increases in premium being paid
by Fishman from his own funds; provided, however, that in the
event the Company wishes to change its long-term care insurance
in a manner that will adversely affect Fishman, it shall notify
Fishman in writing at least 5 business days in advance and allow
him to exercise any applicable conversion rights in which case
all coverage from the Company shall thereafter cease but the
Company shall continue to reimburse Fishman for the cost of such
coverage up to the Company's Cost;
c. Continuation of medical benefits for Fishman,
his spouse and eligible dependents, on the same (or comparable)
basis provided to other senior level executives of the Company,
as in effect from time to time, until Fishman attains age 65, or,
at the election of the Company a tax equivalent payment equal to
the cost of such coverage which Fishman may use, at his election,
to purchase such coverage under the Company's then medical
program; provided, however, that the Company's Cost, other than
the tax equivalency payment, shall never be higher than the
amount it contributes for a similarly situated individual as of
the date of this Agreement, as specified on Exhibit A hereto,
with any increases in premium being paid by Fishman from his own
funds; and, provided, further, that in the event the Company
wishes to change all or any portion of its health benefit program
for employees generally in a manner that will adversely affect
Fishman, it shall notify Fishman in writing at least 5 business
days in advance and allow him to exercise any applicable
conversion rights in which case the affected coverage from the
Company shall thereafter cease but the Company shall continue to
reimburse Fishman for the cost of such affected coverage up to
the Company's Cost;
d. The right to request in writing a transfer to
Fishman of any insurance policies on Fishman's life maintained by
Company that have no cash surrender value and to purchase for
cash in an amount equal to the applicable cash surrender value
from the Company any policies that do have a cash value;
e. Fishman shall also be provided with all salary
due through the date of this Agreement and reimbursement of all
reasonable, ordinary and necessary business expenses related to
his employment by the Company incurred through the date of this
Agreement provided that such expenses are submitted to the
Company with appropriate documentation within 90 days of the date
of this Agreement; and
f. Fishman shall also receive reimbursement of all
reasonable expenses incurred in connection with the removal of
his clothing and personal effects from the Company's corporate
residences to a location to be specified by Fishman.
All payments or benefits shall be made or commence on the eighth
day following the execution (without revocation) of this
Agreement. Notwithstanding paragraph a above:
g. Fishman may request in writing at any time and
from time to time that all or any unpaid amount due or to become
due pursuant to that paragraph be paid currently in the form of
shares of common stock of the Company, such request to be
effective at the close of business on the fourth trading day
following the day that the notice is delivered to the Company
(the "Election Date"). If the request has not been revoked prior
to the Election Date, the Company shall determine, in its sole
discretion not to be unreasonably exercised, whether to permit
such distribution; if so approved, the number of shares shall be
determined based on the average of the high and low trading
prices of the shares on the principal exchange or trading market
on which the shares are then traded for the five trading days
beginning on the day of Fishman's initial request and
distribution shall be made, subject to customary withholdings for
income (at the rate applicable to supplemental, non-periodic
compensation) and employment taxes, on the day following the
Election Day and shall reduce the amounts thereafter due under
paragraph a in reverse order of due date. The Company represents
that the Board has approved the stock election granted to Fishman
hereunder in compliance with Rule 16b-3 of the Securities
Exchange Act of 1934. The Company further agrees that it will
keep effective, under the Securities Act of 1933, a registration
statement covering any issuance of the common stock to Fishman;
and
h. In the event of a Change of Control of the
Company, all installment payments remaining due under paragraph a
shall be accelerated and paid to Fishman in one lump sum, at
Fishman's sole written election, in cash or in shares of common
stock of the Company, valued on the basis of the closing price of
such shares on the principal exchange or trading market on which
the shares are then traded, for the day on which the Change of
Control occurs, subject to customary withholdings for income (at
the rate applicable to supplemental, non-periodic compensation)
and employment taxes, within 5 business days following the event
that results in the Change of Control. For purposes of this
paragraph h, the following terms shall have the meanings
specified:
1. "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
2. "Beneficial Owner" of any securities shall
mean:
(a) that such Person or any of such Person's
Affiliates or Associates, directly or indirectly, has the right
to acquire (whether such right is exercisable immediately or only
after the passage of time) pursuant to any agreement, arrangement
or understanding (whether or not in writing) or upon the exercise
of conversion rights, exchange rights, rights, warrants or
options, or otherwise; provided, however, that a Person shall not
be deemed the "Beneficial Owner" of securities tendered pursuant
to a tender or exchange offer made by such Person or any of such
Person's Affiliates or Associates until such tendered securities
are accepted for payment, purchase or exchange;
(b) that such Person or any of such Person's
Affiliates or Associates, directly or indirectly, has the right
to vote or dispose of or has "beneficial ownership" of (as
determined pursuant to Rule 13d-3 of the General Rules and
Regulations under the Exchange Act), including without limitation
pursuant to any agreement, arrangement or understanding, whether
or not in writing; provided, however, that a Person shall not be
deemed the "Beneficial Owner" of any security under this
subsection (ii) as a result of an oral or written agreement,
arrangement or understanding to vote such security if such
agreement, arrangement or understanding (A) arises solely from a
revocable proxy given in response to a public proxy or consent
solicitation made pursuant to, and in accordance with, the
applicable provisions of the General Rules and Regulations under
the Exchange Act, and (B) is not then reportable by such Person
on Schedule 13D under the Exchange Act (or any comparable or
successor report); or
(c) where voting securities are beneficially
owned, directly or indirectly, by any other Person (or any
Affiliate or Associate thereof) with which such Person (or any of
such Person's Affiliates or Associates) has any agreement,
arrangement or understanding (whether or not in writing) for the
purpose of acquiring, holding, voting (except pursuant to a
revocable proxy as described in the proviso to subsection (ii)
above) or disposing of any voting securities of the Company;
provided, however, that nothing shall cause a Person engaged in
business as an underwriter of securities to be the "Beneficial
Owner" of any securities acquired through such Person's
participation in good faith in a firm commitment underwriting
until the expiration of forty days after the date of such
acquisition.
3. "Change of Control" shall be deemed to have
taken place if (i) any Person (except the Griffin Group or its
Affiliates and Associates, Company management as of the Effective
Date and their Affiliates and Associates or the Company or any
employee benefit plan of the Company or of any Affiliate, any
Person or entity organized, appointed or established by the
Company for or pursuant to the terms of any such employee benefit
plan), together with all Affiliates and Associates of such
Person, shall become the Beneficial Owner in the aggregate of 30%
or more of the common stock then outstanding of the Company;
provided, however, that no "Change of Control" shall be deemed to
occur during any period in which any such Person, and its
Affiliates and Associates, are bound by the terms of a standstill
agreement under which such parties have agreed not to acquire
more than 30% of the common stock of the Company then outstanding
or to solicit proxies, (ii) consummation by the Company of a
reorganization, merger or consolidation (a "Business
Combination"), in each case, with respect to which all or
substantially all of the individuals and entities who were the
respective Beneficial Owners of the outstanding common stock
immediately prior to such Business Combination do not, following
such Business Combination, Beneficially Own, directly or
indirectly, more than 50% of, respectively, the then outstanding
shares of common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in the
election of directors, as the case may be, of the corporation
resulting from such Business Combination in substantially the
same proportion as their ownership immediately prior to such
Business Combination of the outstanding common stock, or (iii)
consummation of a complete liquidation or dissolution of the
Company or (ii) sale or other disposition of all or substantially
all of the assets of the Company other than to a corporation with
respect to which, following such sale or disposition, more than
50% of, respectively, the then outstanding shares of common stock
entitled to vote generally in the election of directors is then
owned beneficially, directly or indirectly, by all or
substantially all of the individuals and entities who were the
Beneficial Owners, respectively, of the outstanding common stock
immediately prior to such sale or disposition in substantially
the same proportion as their ownership of the outstanding common
stock immediately prior to such sale or disposition.
4. "Person" shall mean any individual, firm,
corporation, partnership or other entity.
3. Fishman agrees and acknowledges that the
Company, on a timely basis, has paid, or agreed to pay, to
Fishman all amounts due and owing based on his prior services and
that the Company has no obligation, contractual or otherwise to
Fishman, except as provided herein, nor does it have any
obligation to hire, rehire or re-employ Fishman in the future.
4. In full and complete settlement of any claims
that Fishman may have against the Company, including any possible
violations of the Age Discrimination in Employment Act, 29 U.S.C.
621 et seq., ("ADEA") in connection with his employment and his
retirement from employment, and for and in consideration of the
undertakings of the Company described herein, Fishman does hereby
REMISE, RELEASE, AND FOREVER DISCHARGE the Company, its
affiliates, officers, directors, shareholders, partners,
employees and agents, and its respective successors and assigns,
heirs, executors and administrators (hereinafter all included
within the term "the Company"), of and from any and all manner of
actions and causes of actions, suits, debts, claims and demands
whatsoever in law or in equity, which he ever had, now has, or
hereafter may have, or which Fishman's heirs, executors or
administrators hereafter may have, by reason of any action,
matter, cause or thing whatsoever arising in the course of his
employment by the Company from the beginning of Fishman's
employment to the date of this Agreement; and particularly, but
without limitation of the foregoing general terms, any claims
arising from or relating in any way to Fishman's employment
relationship, or his retirement from employment, by the Company,
including but not limited to, any claims which have been
asserted, could have been asserted, or could be asserted now or
in the future under any federal, state or local laws, including
any claims under ADEA, Title VII of the Civil Rights Act of 1964,
42 U.S.C. 2000e et seq. ("Title VII"), and any common law claims
now or hereafter recognized and all claims for counsel fees and
costs. Notwithstanding the foregoing, nothing contained herein
shall prevent Fishman from requiring the Company to fulfill its
obligations hereunder or under any employee pension benefit plan,
as defined in Section 3(2) of the Employee Retirement Income
Security Act of 1974, as amended, maintained by the Company and
in which Fishman participated or from asserting any rights to
indemnification that Fishman may have under the by-laws of the
Company or under any insurance policy purchased by it.
5. Fishman further agrees and covenants that,
except as may be necessary to enforce his rights hereunder, he,
directly or indirectly, will not file, charge, claim, sue or
cause or permit to be filed, charged, or claimed, any action for
damages, including injunctive, declaratory, monetary or other
relief against the Company, involving any matter occurring at any
time in the past up to the date of this Agreement in connection
with his employment or his retirement from employment, or
involving any continuing effects of any actions or practices
which may have arisen or occurred prior to the date of this
Agreement, including any charge of discrimination under ADEA or
Title VII. In addition, Fishman agrees and covenants that should
he, directly or indirectly, file, charge, claim, sue or cause or
permit to be filed, charged, or claimed, any action for damages,
including injunctive, declaratory, monetary or other relief, in
each case prohibited by the preceding sentence, despite his
agreement not to do so hereunder, then he will repay to the
Company all amounts (or the value of benefits) theretofore paid
under the terms of this Agreement and pay all of the costs and
expenses of the Company (including reasonable attorneys' fees)
incurred in the defense of any such action or undertaking and all
payments and benefits then being provided under Section 2 shall
cease immediately.
6. Fishman recognizes and acknowledges that by
reason of his employment by and service to the Company he has had
access to certain confidential and proprietary information
relating to the Company's business, which consists of customer
and related information, current and future marketing plans and
techniques, designs and drawings for developmental projects of
the Company and budgets and related financial information
(collectively referred to as "Confidential Information").
Fishman acknowledges that such Confidential Information is a
valuable and unique asset of the Company and Fishman covenants
that he will not, unless expressly authorized in writing by the
CEO, for a period of 12 months (24 months in the case of customer
and related information) from the date of this Agreement use any
Confidential Information or divulge or disclose any Confidential
Information to any person, firm or corporation, unless such
information is in the public domain through no fault of Fishman
or except when required to do so by a court of law, by any
governmental agency having supervisory authority over the
business of the Company or by any administrative or legislative
body (including a committee thereof) with apparent jurisdiction
to order him to divulge, disclose or make accessible such
information in which case Fishman will inform the Company in
writing promptly of such required disclosure, but in any event at
least two business days prior to disclosure. All written
Confidential Information (including, without limitation, in any
computer or other electronic format) which comes into Fishman's
possession during the course of his employment shall remain the
property of the Company. Immediately following the later of the
expiration of Fishman's service on the Board or the cessation of
his consulting services under Section 1 above, Fishman shall
return to the Company any written Confidential Information in his
possession.
7.(a) For a period of one year after the date of this
Agreement, Fishman will not, except with the prior written
consent of the CEO, directly or indirectly, own, manage, operate,
join, control, finance or participate in the ownership,
management, operation, control or financing of, or be connected
as an officer, director, employee, partner, principal, agent,
representative, consultant or otherwise with, or use or permit
his name to be used in connection with, any business or
enterprise which owns or operates, or provides any services to an
owner or operator of, hotel casino(s) or river boat casino(s) or
other gaming establishment(s) anywhere within the Company's
"service area," as defined below; provided, however, that such
prohibitions shall not apply to Fishman's services in connection
with the merchandising businesses, as of the date of this
Agreement, of Marketing Innovations Inc. and International
Merchandise Concepts, and their subsidiaries, as of the date of
this Agreement. For the purposes of this Section, "service area"
shall mean the geographic area comprising the standard
metropolitan statistical area ("SMSA") surrounding the Company's
St. Louis location, 150 miles surrounding the Company's Lake
Charles and Metropolis locations and 50 miles surrounding the
Company's Mesquite location but shall not include Las Vegas,
Nevada or Atlantic City, New Jersey.
(b) The foregoing restrictions shall not be construed to
prohibit the ownership by Fishman of less than five percent (5%)
of any class of securities of any corporation which is engaged in
any of the foregoing businesses having a class of securities
registered pursuant to the Securities Exchange Act of 1934 (the
"Exchange Act"), provided that such ownership represents a
passive investment and that neither Fishman nor any group of
persons including Fishman in any way, either directly or
indirectly, manages or exercises control of any such corporation,
guarantees any of its financial obligations, otherwise takes any
part in its business, other than exercising his rights as a
shareholder, or seeks to do any of the foregoing.
(c) Fishman further covenants and agrees that for a
period of one year after the date of this Agreement, he will not,
directly or indirectly, solicit or hire, or encourage the
solicitation or hiring of, any person who was a managerial or
higher level employee of the Company at any time during the term
of Fishman's employment by the Company by any employer other than
the Company for any position as an employee, independent
contractor, consultant or otherwise. The foregoing covenant of
Fishman shall not apply to any person who is involuntarily
terminated by the Company or whose termination agreement with the
Company permits such a position or after 6 months have elapsed
after the date on which such person voluntarily terminates
employment from the Company.
8.(a) Fishman acknowledges and agrees that the
restrictions contained in Sections 6 and 7 are reasonable and
necessary to protect and preserve the legitimate interests,
properties, goodwill and business of the Company, that the
Company would not have entered into this Agreement in the absence
of such restrictions and that irreparable injury will be suffered
by the Company should Fishman breach any of the provisions of
those Sections. Fishman represents and acknowledges that (i) he
has been advised by the Company to consult his own legal counsel
in respect of this Agreement, and (ii) that he has had full
opportunity, prior to execution of this Agreement, to review
thoroughly this Agreement with his counsel.
(b) Fishman further acknowledges and agrees that a
breach of any of the restrictions in Sections 6 and 7 cannot be
adequately compensated by monetary damages. Fishman agrees that
the Company shall be entitled to preliminary and permanent
injunctive relief, without the necessity of proving actual
damages, as well as an equitable accounting of all earnings,
profits and other benefits arising from any violation of Sections
6 or 7, which rights shall be cumulative and in addition to any
other rights or remedies to which the Company may be entitled.
In the event that any of the provisions of Sections 6 or 7 should
ever be adjudicated to exceed the time, geographic, service, or
other limitations permitted by applicable law in any
jurisdiction, it is the intention of the parties that the
provision shall be amended to the extent of the maximum time,
geographic, service, or other limitations permitted by applicable
law, that such amendment shall apply only within the jurisdiction
of the court that made such adjudication and that the provision
otherwise be enforced to the maximum extent permitted by law.
(c) Fishman irrevocably and unconditionally (i)
agrees that any suit, action or other legal proceeding arising
out of Sections 6 or 7, including without limitation, any action
commenced by the Company for preliminary and permanent injunctive
relief and other equitable relief, may be brought in the United
States District Court for the District of New Jersey, or if such
court does not have jurisdiction or will not accept jurisdiction,
in any court of general jurisdiction in Atlantic City, New
Jersey, (ii) consents to the non-exclusive jurisdiction of any
such court in any such suit, action or proceeding, and (iii)
waives any objection which Fishman may have to the laying of
venue of any such suit, action or proceeding in any such court.
Fishman also irrevocably and unconditionally consents to the
service of any process, pleadings, notices or other papers in a
manner permitted by the notice provisions of Section 14 hereof.
9. The Company shall not describe the terms
surrounding Fishman's retirement from employment by the Company
in any proxy, press release or other communication to its
shareholders, employees or the public without first providing
Fishman with a copy of such intended communication. The Company
shall not publish any such communication without first obtaining
Fishman's approval (which shall not be unreasonably withheld),
except to the extent that the Company is advised by its legal
counsel that such communication is required by applicable law or
regulation in a form not approved by Fishman.
10. Fishman hereby agrees and acknowledges that
under this Agreement, the Company has agreed to provide him with
compensation and benefits, such as the payments and benefits due
under Section 2, that are in addition to any amounts to which he
otherwise would have been entitled, and that such additional
compensation is sufficient to support the covenants and
agreements by Fishman herein.
11. Fishman further agrees and acknowledges that
the undertakings of the Company as provided in this Agreement are
made to provide an amicable conclusion of Fishman's employment by
the Company and, further, that Fishman will not require the
Company to publicize anything to the contrary. Fishman and the
Company, its officers and directors, will not, disparage the
name, business reputation or business practices of the other.
12. Fishman hereby certifies that he has read the
terms of this Agreement, that he has been advised by the Company
to consult with an attorney and that he understands its terms and
effects. Fishman acknowledges, further, that he is executing
this Agreement of his own volition with a full understanding of
its terms and effects and with the intention, as expressed in
Section 4 hereof, of releasing all claims recited herein in
exchange for the consideration described herein, which he
acknowledges is adequate and satisfactory to him provided the
Company meets all of its obligations under this Agreement. The
Company has made no representations to Fishman concerning the
terms or effects of this Agreement other than those contained in
this Agreement or the other agreements referred to herein.
13. Fishman hereby acknowledges that he was
presented with this Agreement on September 9, 1996, and that he
was informed that he had the right to consider this Agreement and
the release contained herein for a period of twenty-one (21) days
prior to execution. Fishman also understands that he has the
right to revoke this Agreement for a period of seven (7) days
following execution, by giving written notice to the Company in
accordance with Section 14, in which event the provisions of this
Agreement shall be null and void, and the parties shall have the
rights, duties, obligations and remedies afforded by applicable
law.
14. All notices and other communications required or
permitted hereunder or necessary or convenient in connection
herewith shall be in writing and shall be delivered personally or
mailed by registered or certified mail, return receipt requested,
or by overnight express courier service, as follows:
If to the Company, to:
Players International, Inc.
1300 Atlantic Avenue
Atlantic City, NJ 08401
Attention: Chief Executive Officer
If to Fishman, to:
David Fishman
5058 S. Rainbow Boulevard, #204
Las Vegas, NV 89118
or to such other names or addresses as the Company or Fishman, as
the case may be, shall designate by notice to the other party
hereto in the manner specified in this Section. Any such notice
shall be deemed delivered and effective when received in the case
of personal delivery, five days after deposit, postage prepaid,
with the U.S. Postal Service in the case of registered or
certified mail, or on the next business day in the case of
overnight express courier service.
15. Fishman shall not be required to mitigate the
amount of any payment or benefit provided for in this Agreement
by seeking other employment or otherwise and there shall be no
offset against amounts due Fishman under this Agreement on
account of any remuneration attributable to any subsequent
employment or self-employment that he may obtain.
16. Fishman shall be entitled to indemnification
against any liability incurred in connection with any proceeding
in which Fishman may be involved as a party or otherwise by
reason of the fact that Fishman is or was serving as an officer,
director or agent of the Company, or of any of its subsidiaries
or affiliates, to the maximum extent permitted by applicable law
as well as coverage under any directors and officers' liability
insurance maintained by the Company for its director or senior
level executives.
17. The Company shall (i) document its grant of an
option to Fishman in March of 1995 for 450,000 shares of its
common stock, subject to the vesting and other applicable terms
of such grant, (ii) cause its 1994 grant of an option to Fishman
to purchase 150,000 shares of its common stock to be fully vested
as of the date of this Agreement and (iii) cause all of Fishman's
outstanding vested options, subject to applicable vesting
provisions, as modified above, to be exercisable for one year
following the cessation of his consulting services under Section
1 above. The Company shall also continue to take all reasonable
actions necessary to (iv) permit Fishman to transfer such option
to members of his family, (v) permit Fishman to purchase all or a
portion of the shares thereunder with other shares previously
owned by Fishman equal in value to all or a portion of the
exercise price and (vi) maintain any and all registration
statements in order that common stock held by Fishman acquired
upon the exercise of a stock option be registered and freely
tradable.
18. Fishman shall be entitled to reimbursement for
reasonable legal fees, and related costs, rendered to Fishman by
James D.C. Barrall, Esquire, and his firm, in connection with the
negotiation and preparation of this Agreement in an amount not to
exceed to $15,000.
19. In the event of any dispute under the provisions
of this Agreement other than a dispute in which the primary
relief sought is an equitable remedy such as an injunction, the
parties shall be required to have the dispute, controversy or
claim settled by arbitration in the City of Los Angeles,
California in accordance with the National Rules for the
Resolution of Employment Disputes then in effect of the American
Arbitration Association, before a panel of three arbitrators, two
of whom shall be selected by the Company and Employee,
respectively, and the third of whom shall be selected by the
other two arbitrators. Any award entered by the arbitrators
shall be final, binding and nonappealable and judgment may be
entered thereon by either party in accordance with applicable law
in any court of competent jurisdiction. This arbitration
provision shall be specifically enforceable. The arbitrators
shall have no authority to modify any provision of this Agreement
or to award a remedy for a dispute involving this Agreement other
than a benefit specifically provided under or by virtue of the
Agreement. If Employee prevails on any material issue which is
the subject of such arbitration or lawsuit, the Company shall be
responsible for all of the fees of the American Arbitration
Association and the arbitrators and any expenses relating to the
conduct of the arbitration and the Employee's reasonable legal
fees and expenses. Otherwise, each party shall bear his or its
own expenses relating to the conduct of the arbitration
(including attorneys' fees and expenses) and shall share the fees
of the American Arbitration Association.
20. This Agreement shall be interpreted and enforced
under the laws of the State of Nevada.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement on the day and year first above written.
ATTEST: PLAYERS INTERNATIONAL, INC.
____________________________ By:______________________________
Secretary HOWARD GOLDBERG
Chief Executive Officer
____________________________ _________________________________
Witness DAVID FISHMAN
EXHIBIT 99.1
FOR: PLAYERS INTERNATIONAL, INC.
CONTACT: Peter J. Aranow, Executive Vice President of Finance
318/437-1542
FOR IMMEDIATE RELEASE Christine DiSanto/Josette Tuil
Media Contact: Stan Froelich
Morgen-Walke Associates
212/850-5600
PLAYERS INTERNATIONAL INC. ANNOUNCES SENIOR
MANAGEMENT AND BOARD CHANGES
Atlantic City, New Jersey, September 9, 1996 -- Players
International, Inc. (Nasdaq: PLAY) today announced a series of
senior management changes and an expansion of its Board of
Directors. The Company stated that it will add four new outside
directors to its Board, including Merv Griffin, and that it has
promoted long-time gaming industry executive John F. Groom to
Chief Operating Officer.
The Company stated that Vice Chairman and co-founder David
Fishman has decided to retire from the Company, but will continue
to make himself available to the Company in conjunction with two
development projects for which he has had responsibility - the
riverboat casino and entertainment complex in Maryland Heights,
Missouri and the expansion of Players riverboat casino complex in
Metropolis, Illinois.
With the positive management and Board changes at Players,
the timing of my retirement is right for both Players and me,
Mr. Fishman said. I look forward to assisting the Company in its
completion of the pending development and expansion projects.
Players also announced that co-founder Edward Fishman will
continue as Chairman of the Board, but will henceforth focus
exclusively on his Board duties and will no longer have operating
responsibilities. AI will continue to support our efforts to
ensure that Players fulfills our vision of becoming one of the
premier gaming companies, Mr. Fishman said.
Players further announced that John F. Groom has been
promoted to Chief Operating Officer. Mr. Groom has been
Executive Vice President of Operations since March of this year.
Prior to joining Players, Mr. Groom was Executive Vice President
of Bally's Entertainment Corp., where he oversaw operational and
financial planning for Bally's proposed Paris Casino Resort.
During his sixteen year career at Caesars, Mr. Groom held the
positions of President and Chief Operating Officer of Caesars New
Orleans, and Senior Vice President of Casino Operations at
Caesars Atlantic City. "We are very pleased to have someone of
John Groom's considerable talent and experience in this expanded
role as we face the many challenges and opportunities that go
along with our transition from a development company to an
operating company," said Howard Goldberg, Chief Executive
Officer.
In addition to the management changes announced today,
Players said that Merv Griffin has agreed to join its Board of
Directors. Mr. Griffin's Griffin Group, Inc. and affiliates hold
approximately 17% percent of Players, making it the Company's
largest shareholder.
"The fact that Merv Griffin joining the board is indicative
of his confidence in the potential of Players. He has always
made significant contributions to our business, but now we will
receive the full benefit of his considerable marketing and
entertainment experience going forward," Goldberg said.
In addition to Mr. Griffin, Players said that it will add
three other new independent directors to its Board.
Earl E. Webb, 40, head of LaSalle Partners' Investment
Banking Group. LaSalle Partners is a global leader in commercial
real estate, providing investment management, occupancy and
property services to public and private institutions,
corporations, professional organizations, and individuals
throughout the world. Mr. Webb joined LaSalle in 1985, and has
served on its Board of Directors since January 1995.
Charles M. Masson, 43, a corporate finance consultant. He
was Chairman of the Board of Cadillac Fairview, Inc., a Canadian
real estate company, from 1994 to 1995, and oversaw that
company's $5 billion debt restructuring. From 1979 to 1993, Mr.
Masson was head of the Financial Restructuring Group at Salomon
Brothers, Inc.
Jay M. Green, 48, Executive Vice President and Chief
Financial Officer of Culbro Corporation, a diversified company
with interests in consumer products, real estate, nurseries,
industrial products and wholesale distribution. Prior to joining
Culbro, Mr. Green was Vice President and Controller of The
Entertainment Business Sector of The Coca Cola Company.
Messrs. Masson and Green currently serve as directors of
Griffin Gaming & Entertainment Inc. pending the completion of the
previously announced merger of Griffin Gaming & Entertainment and
Sun International Hotels Ltd.
"I am confident that the actions we are taking today give us
the breadth of experience and depth of management expertise to
regain our momentum and to maintain a leading competitive
position in each of our markets," said Players Chairman Edward
Fishman.
Players International, Inc. is a multi-jurisdictional casino
and entertainment gaming company. The Company owns and operates
riverboat casino facilities on the Ohio River in Metropolis,
Illinois and in Lake Charles, Louisiana and the Players Island
Resort Casino & Spa, a land-based casino resort in Mesquite,
Nevada. Additional developments include a joint venture with
Harrah's for a casino entertainment complex in Maryland Heights,
Missouri.
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