As filed with the Securities and Exchange Commission on August 11, 1997
Registration No. __________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________
Primadonna Resorts, Inc.
(Exact name of registrant as specified in its charter)
________________________________________
Nevada 88-0297563
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
P.O. Box 95997, Las Vegas, Nevada 89193-5997
(Address, including zip code, of principal executive offices)
Primadonna Resorts, Inc. Amended and Restated 1993 Incentive Plan,
(formerly known as the 1993 Stock Incentive Plan)
(Full title of the plan)
Gary E. Primm
Primadonna Resorts, Inc.
P.O. Box 95997
Las Vegas, Nevada 89193-5997
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (702) 382-1212
Copy to:
Kendall R. Bishop, Esq.
O'Melveny & Myers, LLP
1999 Avenue of the Stars, 7th Floor
Los Angeles, California 90067-6035
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Title of each Class Amount Offering Aggregate Amount of
of Securities to be to be Price Offering
Registration
Registered Registered<1> Per Share<2> Price<2> Fee
<S> <C> <C> <C> <C>
Common Stock, par 1,500,000 shares $17.50 $26,250,000 $7954.55
<FN>
<1> This Registration Statement covers, in addition to the number
of shares of Common Stock stated above, options and other
rights to purchase or acquire the shares of Common Stock
covered by this Registration Statement and, pursuant to
Rule 416, an additional indeterminate number of shares
which by reason of certain events specified in the Plan may
become subject to the Plan.
<2> Pursuant to Rule 457(h), the maximum offering price, per
share and in the aggregate, and the registration fee were
calculated based upon the average of the high and low
prices of the Common Stock reported in the consolidated
reporting system as of August 6, 1997.
</FN>
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I of
Form S-8 (plan information and registrant information) will be sent or given
to participating employees as specified by Rule 428(b)(1) of the
Securities Act of 1933 (the "Securities Act"). Such documents need not be
filed with the Securities and Exchange Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424. These documents, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of
the Securities Act.
This Registration Statement is filed pursuant to
Instruction E of the General Instructions on Form S-8.
<PAGE>
PART II
Item 3. Incorporation of Certain Documents by Reference
The following document of Primadonna Resorts,
Inc. (the "Company"), filed with the Securities and
Exchange Commission (the "Commission") is incorporated herein by
reference:
(a) Registration Statement No. 33-70844 on Form
S-8 as filed on October 26, 1993 relating to the Company's
1993 Stock Incentive Plan.
Item 8. Exhibits
See the attached Exhibit Index.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities
Act, the registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this Registration
Statement to be signed on behalf of the undersigned,
thereunto duly authorized, in the City of Las Vegas, State of
Nevada, on this 27th day of May , 1997.
Primadonna Resorts, Inc.
/s/ Craig F. Sullivan
By: _________________________________________
Chief Financial Officer and Treasurer
Each person whose signature appears below constitutes
and appoints Gary E. Primm and Craig F. Sullivan and
each of them, his or her true and lawful attorneys-in-fact
and agents, with full powers of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities,
to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the
same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents,
each acting alone, full power and authority to do and
perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact
and agents, each acting alone, or his or her 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 below
by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Gary E. Primm
___________________________ President, Chief Executive Officer
Gary E. Primm and Chairman of the Board of Directors
(Principal Executive Officer)
/s/ Craig F. Sullivan
___________________________ Chief Financial Officer and Treasurer
Craig F. Sullivan
/s/ Michael P. Shaunnessy
___________________________ Chief Accounting Officer
Michael P. Shaunnessy
/s/ Robert E. Armstrong
___________________________ Director and Secretary
Robert E. Armstrong
/s/ Madison B. Graves II
___________________________ Director
Madison B. Graves II
/s/ Sigmund Rogich
___________________________ Director
Sigmund Rogich
/s/ H. Martin Rosa
___________________________ Director
H. Martin Rosa
/s/ Gary R. Sitzmann
___________________________ Director
Gary R. Sitzmann
/s/ George C. Swarts
___________________________ Director
George C. Swarts
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
4.1 Primadonna Resorts, Inc. Amended and Restated 1993 Incentive Plan.
4.2 Primadonna Resorts, Inc. 1993 Stock Incentive Plan previously
filed as Exhibit 4.1 of the Registration Statement on
Form S-8 filed by Company with the Commission on
October 26, 1993 and incorporated herein by reference.
4.3 Form of Combination Employee Incentive and Nonqualified Stock
Option Agreement.
4.4 Form of Consulting Director Nonqualified Stock Option Agreement.
4.5 Form of Combination Employee Incentive and Non-Incentive Stock
Option Agreement, in use by Company for grants from
November 14, 1995 until May 27, 1997.
4.6 Form of Consultant Nonqualified Stock Option Agreement, in
use by Company for grants from November 14, 1995
until February 18, 1997.
4.7 Form of Employee Incentive Stock Option Agreement in use by
Company until November 14, 1995, previously filed as
Exhibit 4.2 of the Registration Statement on Form S-8
filed by the Company with the Commission on
October 26, 1993 and incorporated herein by reference.
4.8 Form of Employee Nonqualified Stock Option Agreement
in use by Company until November 14, 1995, previously
filed as Exhibit 4.3 of the Registration Statement on
Form S-8 filed by the Company with the Commission
on October 26, 1993 and incorporated herein by reference.
4.9 Form of Consultant Nonqualified Stock Option Agreement
(Early Vesting Provisions) in use by Company until
November 14, 1995, previously filed as Exhibit 4.4
of the Registration Statement on Form S-8 filed
by the Company with the Commission on October 26,
1993 and incorporated herein by reference.
4.10 Form of Special Employee Nonqualified Stock
Option Agreement (Early Vesting Provisions) in
use by Company until November 14, 1995, previously
filed as Exhibit 4.5 of the Registration
Statement on Form S-8 filed by the Company with
the Commission on October 26, 1993 and
incorporated herein by reference.
4.11 Form of Special Employee Incentive Stock Option
Agreement (Early Vesting Provisions) in use
by Company until November 14, 1995, previously filed as
Exhibit 4.6 of the Registration Statement
on Form S-8 filed by the Company with the Commission
on October 26, 1993 and incorporated herein by reference.
5. Opinion of Counsel to the Company
23.1 Consent of Independent Accountants.
23.2 Consent of Counsel (included in Exhibit 5).
24. Power of Attorney (included in this Registration
Statement under "Signatures").
<PAGE>
PRIMADONNA RESORTS, INC.
AMENDED AND RESTATED 1993 INCENTIVE PLAN
(Amended and Restated as of March 28, 1997)
1. Purpose of Plan. The purpose of this Amended and
Restated 1993 Incentive Plan (referred to herein as the "Plan"
and formerly known as the 1993 Stock Incentive Plan) of
Primadonna Resorts, Inc., a Nevada corporation (the "Company"),
is to enable the Company and its subsidiaries to attract, retain
and motivate their employees and certain other eligible
individuals by providing incentives related to equity interests
in and the financial performance of the Company.
2. Persons Eligible Under Plan. Except as otherwise
limited for purposes of Section 6, any individual, including any
director of the Company, who is an officer or employee of, or
consultant or advisor to, the Company or any of its subsidiaries
(an "Eligible Person") shall be eligible to be considered for the
grant of an award ("Award", which term shall mean either a
Share-Based Award or a Cash-Based Award, each as defined in
Section 5) or Awards under this Plan, provided that in the case of a
consultant or advisor, such person (directly or through an entity
with which he or she is associated) renders or has rendered bona
fide services of a nature similar to those services that may be
rendered by employees (other than services in connection with the
offering or sale of securities in a capital raising transaction)
to the Company or a subsidiary.
3. Stock Subject to Plan.
(a) Incentive Stock Option Limit. The maximum number
of shares of Common Stock, $.01 par value per share, of the
Company (the "Common Shares") that may be issued pursuant to
options granted under this Plan and qualified as incentive stock
options ("ISOs") under Section 422 of the Internal Revenue Code
of 1986, as amended (the "Code") is three million (3,000,000),
subject to adjustment as provided in or pursuant to Section 7.
(b) Aggregate and Individual Share Limits. The
maximum number of Common Shares that may be issued pursuant to
all Awards (including ISOs) granted under this Plan is three
million (3,000,000), subject to adjustment as provided in or
pursuant to Section 7, and such maximum number, as so adjusted,
shall be referred to as the "Share Limit". Common Shares that
are issued pursuant to Awards and subsequently reacquired by the
Company pursuant to the terms and conditions of such Awards
("Reacquired Common Shares") shall be available for reissue
within the Share Limit. The aggregate number of shares of Common
Stock subject to options and stock appreciation rights ("SARs")
granted during any fiscal year to any individual shall be limited
to 750,000, and maximum limit per individual on the number of
shares in the aggregate subject to all Share-Based Awards
(including options and SARs) under this Plan that are granted
during any fiscal year shall be 750,000, subject to adjustment as
provided in or pursuant to Section 7.
(c) Share Reservation. No Award may be granted under
this Plan unless, on the date of grant, the sum of (i) the
maximum number of Common Shares issuable at any time pursuant to such
Award, plus (ii) the number of Common Shares that have previously
been issued pursuant to Awards granted under this Plan, other
than Reacquired Common Shares available for reissue, plus (iii)
the maximum number of Common Shares that may be issued at any
time after such date of grant pursuant to Awards that are
outstanding on such date, does not exceed the Share Limit.
(d) Provisions for Certain Share-Related Cash Awards.
The maximum number of Awards both related to or based upon shares
and payable solely in cash under this Plan shall be based upon
the number of shares referenced for purposes of determining the
value or price of such Award and shall not, together with the
number of shares previously issued and subject to then
outstanding Awards payable (or deemed payable) in shares under
this Plan, exceed the Share Limit.
(e) Reissue of Awards and Shares. Cash-Based Awards
(as defined in Section 5) and other Awards payable in cash or
payable in cash or shares that are forfeited or for any reason
are not so paid under this Plan, as well as Common Shares subject
to Awards that expire or for any reason are terminated and are
not issued, as well as shares reacquired pursuant to the terms of
an Award, shall be available for subsequent Awards under this
Plan. If an Award under this Plan is or may be settled only in
cash, such Award need not be counted against any of the limits
under this Section 3, except as may be required by Section 3(d)
or Section 6(b) of this Plan or Section 162(m) of the Code and
applicable regulations and interpretations thereunder ("Section
162(m)") to the extent required to preserve the status of an
Award as "performance-based compensation" under Section 162(m).
4. Administration of Plan.
(a) The Committee. This Plan shall be administered by
and Awards shall be authorized by a committee (the "Committee")
of the entire Board of Directors of the Company (the "Board") or
a committee consisting of two or more directors designated by the
Board for this purpose, provided that (i) with respect to Awards
intended to satisfy the requirements for performance based
compensation under Section 162(m), each member of the Committee
so acting shall be an "outside director" (as such term is defined
in or under Section 162(m)), and (ii) with respect to Awards
intended to be granted by a disinterested committee for purposes
of Rule 16b-3 under Section 16 ("Section 16") of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as such
rule may be amended from time to time ("Rule 16b-3"), each member
acting on the matter shall be a Non-Employee Director (as such
term is defined in Rule 16b-3).
(b) Powers of the Committee. Subject to the express
provisions of this Plan, the Committee shall be authorized and
empowered to do all things necessary or desirable in connection
with the administration of this Plan, including, without
limitation, the following:
(i) adopt, amend and rescind rules, regulations
and procedures relating to this Plan or its administration
or the Awards granted under this Plan;
(ii) determine which persons meet the requirements
of Section 2 hereof for eligibility under this Plan and to
which of such persons, if any, Awards will be granted under
this Plan;
(iii) grant Awards (including Performance-Based
Awards (as such term is defined in Section 6)) to persons
determined to be Eligible Persons and determine the terms
and conditions of such Awards, including but not limited to
the number of Common Shares issuable pursuant thereto, the
times at which and conditions upon which Awards become
exercisable or vest or shall expire or terminate, the fair
market value of the Common Shares or Awards, from time to
time, and/or the manner in which it will be determined, and
the consideration, if any (but subject to applicable law),
to be paid upon receipt, exercise or vesting of Awards;
(iv) with respect to Performance-Based Awards,
determine the applicable business criteria on which the
grant, vesting, exercisability or payment of such Awards are
based, establish performance goals with respect to such
criteria, and determine and certify if and when such
performance goals and other material conditions have been
met;
(v) determine whether, and the extent to which,
adjustments are required pursuant to Section 7 hereof;
(vi) interpret and construe this Plan and the
terms and conditions of any Award granted hereunder, whether
before or after the date set forth in Section 9; and
(vii) determine the circumstances under which,
consistent with the provisions of Section 8, any outstanding
Award may be amended;
which authority (except as to clause (ii) and (iii) above) shall
remain in effect so long as any Award remains outstanding under
this Plan.
(c) Specific Committee Responsibility and Discretion
Regarding Awards. Subject to the express provisions of this
Plan, the Committee, in its sole and absolute discretion, shall
determine all of the terms and conditions of each Award granted
under this Plan, which terms and conditions may include, subject
to such limitations as the Committee may from time to time impose,
among other things, provisions that:
(i) permit the recipient of such Award, including
but not limited to any recipient who is a director or
officer of the Company, to pay the purchase price of the
Common Shares or other property issuable pursuant to such
Award, or any applicable tax withholding obligation upon
such issuance or in respect of such Award or Shares, in
whole or in part, by any one or more of the following:
(A) the delivery of previously owned shares
of capital stock of the Company (including shares
acquired as or pursuant to Awards) or other property,
(B) a reduction in the amount of Common
Shares or other property otherwise issuable pursuant to
such Award, or
(C) the delivery of a promissory note, the
terms and conditions of which shall be determined by
the Committee;
(ii) accelerate the receipt of benefits pursuant
to such Award upon the occurrence of specified events,
including, without limitation, a change of control of the
Company (including a Change in Control or an Event pursuant
to Section 7 hereof), an acquisition of a specified
percentage of the voting power of the Company, the
dissolution or liquidation of the Company, a sale of
substantially all of the property and assets of the Company
or an event of the type described in Section 7 hereof, or in
other circumstances or upon the occurrence of other events
as deemed appropriate by the Committee;
(iii) qualify such Award as an Incentive Stock
Option and/or a Performance-Based Award;
(iv) extend the exercisability or term of any or
all outstanding Awards, change the price of any or all
outstanding Awards or otherwise change previously imposed
terms and conditions, in the specified events described in
clause (ii) above or in other circumstances or upon the
occurrence of other events as deemed appropriate by the
Committee, in each case subject to Section 8;
(v) authorize the conversion, succession or
substitution of outstanding Awards upon the occurrence of an
event of the type described in Section 7, or in other
circumstances or upon the occurrence of other events as deemed
appropriate by the Committee; and/or
(vi) provide for automatic grants of Awards or
successive Awards.
(d) Binding Determinations. Any action taken by, or
inaction of, the Company, the Board or the Committee relating or
pursuant to this Plan shall be within the absolute discretion of
that entity or body and shall be conclusive and binding upon all
persons. No member of the Board or officer of the Company shall
be liable for any such action or inaction of the entity or body,
of another person or, except in circumstances involving bad
faith, of himself or herself.
(e) Reliance on Experts. In making any determination
or in taking or not taking any action under this Plan, the Board
and the Committee may obtain and may rely upon the advice of
experts, including professional advisors to the Company. No
director, officer or agent of the Company shall be liable for any
such action or determination taken or made or omitted in good
faith.
(f) Delegation. The Committee may delegate
ministerial, non-discretionary functions to individuals who are
officers or employees of the Company.
(g) Bifurcation. Notwithstanding anything to the
contrary in this Plan, the provisions of this Plan may at any
time be bifurcated by the Board or the Committee in any manner so
that certain provisions of any Award Agreement (as defined in
Section 5) (or this Plan) intended or required in order to
satisfy the applicable requirements of Rule 16b-3 or Section
162(m), to the extent permitted thereby, are applicable only to
persons subject to those provisions and to those Awards to those
persons intended to satisfy the requirements of the applicable
rule or rules thereunder.
5. Awards.
(a) Share-Based Awards. The Committee, on behalf of
the Company, is authorized under this Plan to enter into any type
of arrangement with an Eligible Person that is not inconsistent
with the provisions of this Plan and that by its terms, involves
or might involve the issuance of (i) Common Shares, (ii) an
option, warrant, convertible security, stock appreciation right
or similar right with an exercise or conversion privilege at a
fixed or variable price related to the Common Shares or other
equity securities of the Company and/or the passage of time, the
occurrence of one or more events, or the satisfaction of
performance criteria or other conditions, or (iii) any similar
security with a value derived from the value of the Common Shares
or other equity securities of the Company. The authorization of
any such arrangement (including any benefits described in Section
5(e)) is referred to herein as the "grant" of a "Share-Based
Award." Share-Based Awards are not restricted to any specified
form or structure and may include, without limitation, sales or
bonuses of stock, restricted stock, stock options, reload stock
options, stock purchase warrants, other rights to acquire stock,
securities convertible into or redeemable for stock, stock
appreciation rights, limited stock appreciation rights, phantom
stock, dividend equivalents, performance units or performance
shares, and a Share-Based Award may consist of one such security
or benefit, or two or more of them in any combination or
alternative. If an option or stock appreciation right, or other
Share-Based Award satisfies the conditions of Section 6, it shall be
deemed to be granted thereunder.
(b) Cash-Based Awards. The Committee, on behalf of
the Company, is authorized under this Plan to enter into any type
of arrangement with any officer of the Company that is not
inconsistent with the provisions of this Plan and that provides
for a cash payment or benefit under this Plan, whether in lieu
of, in addition to, independent of, or as a component of a
Share-Based Award (a "Cash-Based Award"). Without limiting the
generality of the foregoing, a Cash-Based Award may be in the
form of a periodic cash bonus based upon the attainment of
established performance criteria. Cash-Based Awards that meet
the conditions of Section 6 shall be deemed to be granted
thereunder.
(c) Award Agreements. The Committee may authorize any
officer (other than the particular recipient) to execute any or
all agreements memorializing any grant of an Award by the
Committee under this Plan. All Awards shall be evidenced by a
writing executed on behalf of the Company (the "Award Agreement")
and, if required by the Committee, by the recipient of the Award.
Unless the Committee otherwise provides, Awards to persons
described in Section 6(a) that are either granted or become
vested, exercisable or payable based on attainment of one or more
of the performance goals related to business criteria (identified
in Section 6), shall be deemed Performance-Based Awards under
Section 6.
(d) Price; Consideration. Common Shares may be issued
pursuant to a Share-Based Award for any lawful consideration as
determined by the Committee, including, without limitation,
services rendered by the recipient of such Award, but shall not
be issued for less than the minimum lawful consideration.
(e) Loans. The Committee shall have the express
authority to make or authorize loans to finance, or to otherwise
accommodate the financing of, the acquisition or exercise of an
Award, subject to Section 11(a).
(f) Transfer Restrictions.
(i) Limit On Exercise and Transfer. Unless
otherwise expressly provided in (or pursuant to) this
Section 5(f), by applicable law or by the Award Agreement,
as the same may be amended, (A) all Awards are non-
transferable and shall not be subject in any manner to sale,
transfer, anticipation, alienation, assignment, pledge,
encumbrance or charge; (B) Awards shall be exercised only by
the holder; and (C) amounts payable or shares issuable
pursuant to an Award shall be delivered only to (or for the
account of) the holder.
(ii) Certain Exceptions. The Committee by
express provision in the Award or an amendment thereto may
permit an Award to be transferred to, exercised by and paid
to certain persons or entities related to the participant,
including but not limited to members of the participant's
family, charitable institutions, or trusts or other entities
whose beneficiaries or beneficial owners are members of the
participant's family and/or charitable institutions, or to
such other persons or entities as may be expressly approved
by the Board or the Committee, pursuant to such conditions
and procedures as the Board or the Committee may establish.
Any permitted transfer shall be subject to the condition
that the Committee receive evidence satisfactory to it that
the transfer is being made for estate and/or tax planning
purposes and on a basis consistent with the Company's
registration of securities (if applicable) and the incentive
purposes of the Award and this Plan. Notwithstanding the
foregoing, Awards intended as ISOs or restricted stock
Awards for purposes of the Code shall be subject to any and
all additional transfer restrictions necessary to preserve
their status as ISOs or restricted shares, as the case may
be, under the Code.
(iii) Further Exceptions to Limits On Transfer.
The exercise and transfer restrictions in Section 5(f)(i)
shall not apply to:
(A) transfers to the Company,
(B) the designation of a beneficiary to
receive benefits in the event of the participant's
death or, if the participant has died, transfers to or
exercise by the participant's beneficiary, or, in the
absence of a validly designated beneficiary, transfers
by will or the laws of descent and distribution,
(C) transfers pursuant to a domestic
relations order (if approved or ratified by the Board
or the Committee), if (in the case of ISOs) permitted
by the Code,
(D) if the participant has suffered a
disability, permitted transfers to or exercises on
behalf of the holder by his or her legal
representative, or
(E) the authorization by the Board or the
Committee of "cashless exercise" procedures with third
parties who finance or who otherwise facilitate the
exercise of Awards consistent with applicable laws and
the express authorization of the Committee.
(g) Tax Withholding. Upon any exercise, vesting, or
payment of any Award, the Company shall have the right at its
option to (i) require the Eligible Person (or personal
representative or beneficiary, as the case may be) to pay or
provide for payment of the amount of any taxes which the Company
may be required to withhold with respect to such transaction or
(ii) deduct from any amount payable in cash the amount of any
taxes which the Company may be required to withhold with respect
to such cash amount. In any case where a tax is required to be
withheld in connection with the delivery of shares of Common
Stock under this Plan, the Committee may grant (either at the
time of the Award or thereafter) to the Participant the right to
elect, pursuant to such rules and subject to such conditions as
the Committee may establish, to have the Company reduce the
number of shares to be delivered by (or otherwise reacquire) the
appropriate number of shares valued at their then fair market
value, to satisfy such withholding obligation.
6. Section 162(m) Performance-Based Awards. Without
limiting the generality of the foregoing, options or SARs granted
with an exercise or base price not less than fair market value at
the applicable date of grant to an Eligible Person who is either
a salaried employee or an officer of the Company ("Eligible
Employee"), designated herein as "Presumptively Qualifying
Awards," shall be, and any of the other types of Awards listed in
Section 5(a) above and/or Cash-Based Awards, that satisfy the
conditions of this Section 6 may be granted as Awards intended to
satisfy the requirements for "performance-based compensation"
within the meaning of Section 162(m) ("Performance-Based
Awards"). The grant, vesting, exercisability or payment of other
Performance-Based Awards may depend on any one or more of the
following "business criteria": Diluted EPS, EBITDA, Net Income,
Operating EBITDA, Operating Income, Return on Assets, and Return
on Equity, each as defined further in Exhibit A, in each case
relative to a preestablished targeted level or levels (the
"performance goals"), on an absolute or relative basis, for the
Company on a consolidated basis or for one or more subsidiaries,
segments or business units. (Financial terms are used as applied
under generally accepted accounting principles and reflected in
the Company's financial reporting.) The specific performance
goals must be approved by the Committee: (i) no later than the
first to occur of (A) 90 days after the commencement of the
performance period (or before 25% of the performance period has
elapsed), if the performance period is one year or less, (B) the
date on which 25% of the relevant performance period has elapsed,
if the performance period is more than one year, or (C) any other
applicable deadline under Section 162(m); and (ii) while the
performance relating to those goals remains substantially
uncertain within the meaning of Section 162(m). The applicable
performance measurement period for a Cash-Based Award may be not
less than one fiscal quarter nor more than 6 years.
(a) Eligible Class. The eligible class of persons for
Awards under this Section 6 for Presumptively Qualifying Awards
shall include Eligible Employees and the eligible class of
persons for other Awards under this Section 6 shall be limited to
officers of the Company designated by the Committee to receive an
Award under this Section 6.
(b) Maximum Award. In no event shall grants in any
fiscal year to any one participant under this Section 6, together
with grants of options and stock appreciation rights to the
individual in that period, relate to more than 750,000 shares.
Awards that are voluntarily cancelled or repriced during the
fiscal year shall be counted against this limit to the extent
required by Section 162(m). The aggregate amount of all Cash-
Based Awards to be paid to any participant in respect of any
fiscal year (including awards under any cash incentive
compensation plan qualified under Section 6(f)) as Performance-
Based Awards under this Plan shall not exceed $2,000,000 or, for
any quarter, $500,000 or, for the remaining term of this Plan, an
aggregate amount of $12,000,000.
(c) Certification. Except as otherwise permitted
under Section 162(m), before any Performance-Based Award under
this Section 6 is paid, the Committee must certify that the
performance goal and any other material terms of the Performance-
Based Award were in fact satisfied.
(d) Terms and Conditions of Awards. The Committee
shall have discretion to determine the conditions, restrictions
and other limitations, in accordance with the terms of this Plan
and Section 162(m), on the payment of individual Performance-
Based Awards under this Section 6. The Committee may reserve by
express provision in any Award Agreement or authorizing
resolution the right to reduce (but not increase) the amount
payable in accordance with any standards or on any other basis
(including the Committee's sole discretion) as the Committee
deems appropriate.
(e) Adjustments for Material Changes. Performance
goals or other features of a Performance-Based Award may provide
that they (a) shall be adjusted appropriately to reflect a change
in corporate capitalization, a corporate transaction (such as a
reorganization, combination, separation, or merger) or a complete
or partial corporate liquidation, (b) shall be calculated either
without regard for or to reflect any change in accounting
policies or practices affecting the Company and/or the business
criteria or performance goals or targets, and/or (c) shall be
adjusted for any other circumstances or events, but only to the
extent in each case that such adjustment or determination would
be consistent with the requirements of Section 162(m) to qualify
as performance-based compensation and with Section 7 and as
specifically provided for in the applicable Award Agreement.
(f) Bonus Compensation Plan Awards. The Committee may
grant an Award hereunder linked to performance targets and
methodologies for calculating bonuses established under any
incentive compensation plan maintained by the Company (which may
include, but shall not be limited to, quarterly incentive
compensation Awards), provided the combined Award satisfies the
express provisions of this Section 6. When an Award is made
under a Company incentive compensation plan and is granted to an
officer of the Company whose compensation is subject to the
limits under Section 162(m), and when such Award is also made
under and complies with the terms of this Section 6, such Award
shall be a Performance-Based Award hereunder.
(g) Limitation on Award Adjustments. To the extent
required in the case of an Award intended as a Performance-Based
Award for purposes of Section 162(m), the Committee shall have no
discretion (i) to increase the amount of compensation or the
number of shares that would otherwise be due upon the attainment
of the applicable performance goal or the exercise of the option
or SAR or (ii) to waive the achievement of any applicable
performance goal as a condition to receiving a benefit or right
under an Award.
7. Adjustments and Acceleration.
(a) Adjustments. If (i) the outstanding securities of
the class then subject to this Plan (the "outstanding shares")
(A) are increased, decreased, exchanged or converted as a result
of a stock split (including a split in the form of a stock
dividend), reverse stock split, or the like or (B) are exchanged for
or converted into cash, property or a different number or kind of
securities (or if cash, property or securities are distributed in
respect of the outstanding shares), as a result of a
reorganization, merger, consolidation, recapitalization,
restructuring, or reclassification, or (ii) all or substantially
all of the business and/or assets of the Company are sold, then,
unless the terms of such transaction shall otherwise provide, the
Committee shall make equitable, appropriate and proportionate
adjustments in (x) the number and type of shares or other securities
or cash or other property that may be acquired pursuant to ISOs
and other Awards previously granted under this Plan, and (y) the
maximum number and type of shares or other securities that may
be issued pursuant to ISOs and other Awards thereafter granted
under this Plan, and (z) such other terms as necessarily are
affected by such event.
(b) Acceleration. The Committee may provide in or by
amendment to any Award Agreement and on such terms and conditions
as it deems appropriate (which may include a unilateral right of
the Committee to prevent such acceleration by advance notice)
that, upon the occurrence of a Change in Control or an Event
there shall be an acceleration of benefits under the Award and,
more particularly: (i) any options granted as part of such Award
which have not expired or terminated shall immediately become
exercisable, (ii) any Common Shares purchased or acquired
pursuant to the Award which are subject to the payment of
consideration (if any) and conditions on vesting, transfer or
other restrictions as may be established hereunder shall
immediately vest free of restrictions, and (iii) other rights,
including rights to payment, granted as or as part of the Award
shall immediately vest and become payable to the holder of such
Award. The Committee may accord any recipient of an Award which
contains such acceleration provision the right to refuse any
acceleration in such circumstances as the Committee may approve.
Notwithstanding the foregoing, any acceleration of an Award shall
comply with all applicable regulatory requirements, including
without limitation Section 422 of the Code.
"Change in Control" means the date on which either: (i)
the Gary Primm Group own less than fifteen percent (15%) of the
total voting power of all classes of the Company's voting stock,
except as a result of sales made in order to pay estate taxes
owing as a result of the death of Gary E. Primm; (ii) any Person
other than the Gary Primm Group or the Primm Family, acting
together in a manner which would constitute a group for the
purposes of Section 13(d) of the Exchange Act (a "13(d) Group"),
shall beneficially own (within the meaning of Rule 13d-3
promulgated under the Exchange Act) voting power of all classes
of the Company's voting stock equal to or greater than that owned
by the Gary Primm Group; (iii) a 13(d) Group succeeds in having
sufficient of its directors on the Board such that the 13(d)
Group's directors will constitute a majority of the voting power
of the Board; or (iv) Gary E. Primm shall cease to be the
chairman of the Board, except as a result of his death or
disability. For purposes of the foregoing: (i) "Gary Primm
Group" shall mean Gary E. Primm, his executors, administrators,
testamentary trustees, heirs, legatees and beneficiaries; (ii)
"Person" shall mean any legal entity, including but not limited
to any individual, corporation, group or assemblage, partnership,
limited partnership, joint venture, association, joint stock
company, or trust; and (iii) "Primm Family" shall mean,
collectively, Janet Primm Rosa, Judith Primm Clemetson, Joyce
Primm Schweickert, Roger B. Primm and Gregory B. Primm, their
respective executors, administrators, testamentary trustees,
heirs, legatees and beneficiaries.
An "Event" means approval by the stockholders of the
Company of any of the following: (i) the dissolution or
liquidation of the Company; (ii) an agreement to merge or
consolidate or otherwise reorganize, with or into one or more
entities which are not Subsidiaries, as a result of which less
than 50% of the outstanding voting securities of the surviving or
resulting entity are, or are to be, owned by former stockholders
of the Company; or (iii) the sale of all or substantially all of
the Company's business and/or assets to a person or entity which
is not a Subsidiary. For purposes of the foregoing, "Subsidiary"
shall mean any corporation or other entity a majority or more of
the outstanding voting power or voting stock of which is
beneficially owned directly or indirectly by the Company.
(c) Termination. If any option or other right to
acquire Common Stock under this Plan has been fully accelerated
as permitted by Section 7(b) but is not exercised prior to (i) a
dissolution of the Company, or (ii) an Event after which the
Company does not survive, such Option or right shall thereupon
terminate, provided that (y) the Company or a successor shall
have given to the participant at least ten (10) days notice of
any such termination, and participant shall have had the right
prior to or simultaneously with the consummation of such
occurrence or transaction to exercise his or her option or right,
or (z) the Committee shall have provided for the termination of
the option or right by making an adjustment pursuant to Section
7(a).
8. Amendment and Termination of Plan. The Board may
amend or terminate this Plan at any time and in any manner. No
amendment or termination of this Plan or change in or affecting
any outstanding Award shall deprive in any material respect the
recipient, without the consent of such recipient, of any of his
or her rights or benefits under or with respect to the Award.
Adjustments contemplated by Section 7 shall not be deemed to
constitute a change requiring such consent.
9. Term of Plan. No Award shall be granted under
this Plan after April 27, 2003. Although Common Shares may be
and/or cash may be issued after that date pursuant to Awards
granted prior to such date, no Common Shares otherwise shall be
issued under this Plan after such date. Notwithstanding the
foregoing, any Award granted prior to such date may be amended
after such date in any manner that would have been permitted
prior to such date, except that no such amendment shall increase
the number of shares subject to or comprising such Award, or
extend the final expiration date of the Award or reduce (below
the fair market value on the date of the amendment) the exercise
price of or under such Award or increase the maximum amount of
cash payable under the Award.
10. Effective Date of Plan. This Plan originally
became effective as of April 28, 1993, was amended on March 27,
1995 and (subject to approval by the affirmative votes of the
holders of at least a majority of the Common Shares of the
Company present, or represented, and entitled to vote at the 1997
annual meeting of stockholders) amended and restated as of March
28, 1997.
11. Legal Issues.
(a) Compliance and Choice of Law; Severability. This
Plan, the granting and vesting of Awards under this Plan and the
issuance and delivery of shares of Common Stock and/or the
payment of money under this Plan or under Awards granted hereunder
are subject to compliance with all applicable federal and state
laws, rules and regulations (including but not limited to state
and federal securities law and federal margin requirements) and
to such approvals by any listing, regulatory or governmental
authority as may, in the opinion of counsel for the Company, be
necessary or advisable in connection therewith. Any securities
delivered under this Plan shall be subject to such restrictions
as the Company may deem necessary or desirable to assure
compliance with all applicable legal requirements. This Plan, the
Awards, all documents evidencing Awards and all other related
documents shall be governed by, and construed in accordance with
the laws of the state of incorporation of the Company. If any
provision shall be held by a court of competent jurisdiction to
be invalid and unenforceable, the remaining provisions of this
Plan (subject to Section 11(b)) shall continue in effect.
(b) Plan Construction.
(i) Rule 16b-3. It is the intent of the Company
that transactions in and affecting Awards in the case of
participants who are or may be subject to Section 16 satisfy
any then applicable requirements of Rule 16b-3 so that such
persons (unless they otherwise agree) will be entitled to
the benefits of Rule 16b-3 or other exemptive rules under
Section 16 in respect of those transactions and will not be
subjected to avoidable liability thereunder. If any
provision of this Plan or of any Award would otherwise
frustrate or conflict with the intent expressed above, that
provision to the extent possible shall be interpreted as to
avoid such conflict. If the conflict remains irrevocable,
the Committee may disregard the provision if it concludes
that to do so furthers the interest of the Company and is
consistent with the purposes of this Plan as to such persons
in the circumstances.
(ii) Section 162(m). It is the further intent of
the Company that options or stock appreciation rights
granted as Awards with an exercise price or base price not
less than their fair market value on the date of grant and
Performance-Based Awards under (or, unless the Board or the
Committee otherwise provides, Awards satisfying the
requirements of) Section 5 or 6 that are granted to or held
by a person who is or may be subject to Section 162(m) shall
(except to the extent such Awards may be paid in connection
with the participant's death or disability, or a change of
control of the Company) qualify as "performance-based
compensation" under Section 162(m), and this Plan and the
authority of the Board and the Committee hereunder shall be
interpreted consistent with such intent.
(c) Non-Exclusivity of Plan. Nothing in this Plan
shall limit or be deemed to limit the authority of the Board or
the Committee to grant Awards or authorize any other compensation,
with or without reference to the Common Shares, under any
other plan or authority.
<PAGE>
EXHIBIT A
PERFORMANCE-BASED BUSINESS CRITERIA
Diluted EPS
Diluted Earnings Per Share calculated on a fully diluted
basis as determined in accordance with Generally Accepted
Accounting Principles ("GAAP") and reflected in the
Company's periodic financial reports for the applicable
period.
EBITDA
Earnings Before Interest, Taxes, Depreciation and
Amortization (EBITDA) as determined in accordance with GAAP
and reflected in the Company's periodic financial reports
for the applicable period and in the case of Cash-Based
Awards before bonus awards under the Company's annual bonus
plan or this Plan.
Net Income
Net Income as determined in accordance with GAAP and
reflected in the Company's periodic financial reports for
the applicable period.
Operating EBITDA
Earnings Before Interest, Taxes, Depreciation and
Amortization (EBITDA), before: Pre-tax Earnings (Losses)
from Unconsolidated Affiliates, Development Costs,
Abandonment Losses, Pre-tax Earnings (Losses) from asset or
business unit dispositions out of the ordinary course of
business in an amount greater than $500,000, and EBITDA from
business units or subsidiaries (if any) excluded from
Operating EBITDA by the Compensation Committee in granting
an award, all as determined in accordance with GAAP and
reflected in the Company's periodic financial report for the
applicable period or, to the extent any item is not so
reflected, as reported to the Compensation Committee by the
Company's independent auditors.
Operating Income
Operating Income as determined in accordance with GAAP and
reflected in the Company's periodic financial reports for
the applicable period.
Return on Assets
Net Income for the period divided by Average Total Assets as
determined in accordance with GAAP and reflected in the
Company's periodic financial reports for the applicable
period.
Return on Equity
Net Income for the period divided by Average Total Equity as
determined in accordance with GAAP and reflected in the
Company's periodic financial reports for the applicable
period.
<PAGE>
PRIMADONNA RESORTS, INC.
COMBINATION EMPLOYEE INCENTIVE AND NONQUALIFIED
STOCK OPTION AGREEMENT
THIS AGREEMENT is between Primadonna Resorts,
Inc., a Nevada corporation (the "Corporation"), and
_______________ (the "Employee").
W I T N E S S E T H
WHEREAS, pursuant to the Amended and Restated 1993
Incentive Plan (the "Plan"), the Corporation has granted to
the Employee effective as of ______ ___, ____(the "Award
Date") an incentive stock option to purchase all or any part
of ________ authorized but unissued or treasury shares of
Common Stock, $.01 par value, of the Corporation upon the
terms and conditions set forth herein and in the Plan.
NOW, THEREFORE, in consideration of the mutual
promises and covenants made herein and the mutual benefits
to be derived herefrom, the parties agree as follows:
1. Defined Terms. Capitalized terms used herein
and not otherwise defined herein shall have the meaning
assigned to such terms in the Plan.
2. Grant of Option. This Agreement evidences
the Corporation's grant to the Employee of the right and
option to purchase, on the terms and conditions set forth
herein and in the Plan, all or any part of an aggregate of
________ shares of the Common Stock at the price of $_____
per share (the "Option"), exercisable from time to time,
subject to the provisions of this Agreement and the Plan,
prior to the close of business on the day before the tenth
anniversary of the Award Date (the "Expiration Date"). Such
price equals the fair market value as of the Award Date. It
is the intent of the Corporation that this Option constitute
(to the extent permitted by law) an incentive stock option
("ISO") within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"), with respect
to ______ of the shares subject to the Option (the "ISO
Shares") and a nonqualified option with respect to any
remainder of the shares subject to the Option (the "Non-ISO
Shares").
3. Exercisability of Option. Except as earlier
permitted by or pursuant to Section 4(c)(ii) of the Plan and
Section 8 of this Agreement, or by resolution of the
Committee adopted after the date hereof, no shares may be
purchased by exercise of the Option until the expiration of
twelve (12) months after the Award Date. The Option shall
become exercisable in installments (i) as to ______% of the
ISO Shares and ______% of the Non-ISO Shares (each subject
to adjustment) on and after the first anniversary of the
Award Date and (ii) as to an additional ______% of the ISO
Shares and an additional ______% of the Non-ISO Shares (each
subject to adjustment) on each of the ________________
anniversaries of the Award Date.
To the extent the Employee does not in any year
purchase all or any part of the shares to which the Employee
is entitled, the Employee has the right cumulatively
thereafter to purchase any shares not so purchased and such
right shall continue until the Option terminates or expires.
Fractional share interests shall be disregarded, but may be
cumulated. No fewer than 100 shares may be purchased at any
one time, unless the number purchased is the total number at
the time available for purchase under the Option.
4. Limitation on Exercise of Option as an ISO.
In the event the Employee is granted incentive stock options
(whether under this Award Agreement or any other incentive
stock option agreement) and the aggregate fair market value
(determined as of the respective dates of grant of such
options) of the Common Stock with respect to which such
options are first exercisable in any calendar year exceeds
$100,000, the most recently granted options shall be treated
as non-qualified stock options to the extent of the excess.
In addition, in the case of simultaneously granted options,
the Corporation may, in the manner and to the extent
permitted by law, designate which shares are to be treated as
stock acquired pursuant to the exercise of an incentive
stock option.
5. Method of Exercise of Option. The Option
shall be exercisable by the delivery to the Corporation of a
written notice stating the number of shares to be purchased
pursuant to the Option and accompanied by payment made
(a) in cash or by check payable to the order
of the Corporation;
(b) by exchange of Common Stock of the
Corporation, then having been owned by the Employee
for at least six (6) months, having a then fair market
value (as determined by the Committee) equal to such
purchase price;
(c) to the extent (if any) permitted by the
Committee, by promissory note of the Employee, to be
secured by a security interest in the shares issued
upon exercise and such other collateral, if any, as the
Committee may require;
(d) to the extent (if any) permitted by the
Committee, by reduction in the number of shares of
Common Stock deliverable upon exercise by that number
of shares which have a then fair market value (as
determined by the Committee) equal to such purchase
price; or
(e) in any combination of the consideration
permitted by the foregoing subsections;
subject to such further limitations, rules and procedures as
the Committee may from time to time establish as to any
noncash payment.
Any promissory note shall bear a rate of interest
not less than a rate, if any, as required under federal tax
law to prevent any imputation of interest, unless such rate
exceeds the maximum rate permissible under Nevada law, in
which case the rate shall not exceed the maximum permitted
under Nevada law. All other terms of such note shall be
determined, subject to compliance with applicable laws
(including federal margin requirements if applicable),
solely by the Committee. All terms and conditions,
including whether the note shall become due upon Employee's
termination of employment, shall be expressly set forth in
the promissory note executed by the Employee. In addition,
the Employee (or the Employee's beneficiary or personal
representative) shall furnish any written statements
required pursuant to Section 10(a) of the Plan.
6. Continuance of Employment. As a condition
of this Option, the Employee hereby agrees to remain in the
employ of the Corporation or one of its subsidiaries for a
period of one (1) year after the Award Date. Nothing
contained herein or in the Plan shall confer upon the Employee
any right with respect to the continuation of employment by
the Corporation or any subsidiary or interfere in any way
with the right of the Corporation or of any subsidiary at
any time to terminate such employment or to increase or
decrease the compensation of the Employee from the rate in
existence at any time.
7. Effect of Termination of Employment or Death;
Change in Subsidiary Status. The Option and all other
rights hereunder, to the extent not exercised, shall
terminate and become null and void at such time as the Employee
ceases to be employed by either the Corporation or any
subsidiary, except that
(a) if the Employee terminates by reason of
permanent and total disability (within the meaning of
Section 22(e)(3) of the Code or as otherwise determined
by the Committee), Employee may at any time within a
period of one (1) year after such termination exercise
the Option to the extent the Option was exercisable at
the date of such termination;
(b) if the Employee terminates by reason of
voluntary retirement with the consent of the Corporation,
Employee may at any time within a period of three
(3) months after such termination exercise the Option
to the extent the Option was exercisable at the date of
such termination;
(c) if the Employee terminates by reason of
resignation (other than pursuant to a dismissal for
Cause (as defined below) or in anticipation of such a
dismissal (as determined by the Committee)), Employee
may at any time within a period of 45 days after such
termination exercise the Option to the extent the
Option was exercisable at the date of such termination;
(d) if the Employee dies while in the employ
of the Corporation or any subsidiary, or within one (1)
year after a termination described in subsection (a) of
this Section 7, or within three (3) months after a
termination described in subsection (b) of this Section
7, or within 45 days after a termination described in
subsection (c) of this Section 7, then the Option may
be exercised within a period of one (1) year after
Employee's date of death by the Employee's beneficiary
to the extent the Option was exercisable on the date of
Employee's death (or such earlier termination);
provided, however, that in no event may the Option be
exercised by anyone under this Section or otherwise after the
Expiration Date or, to the extent the Option is exercised as
an ISO, beyond any earlier date required under the Code.
For purposes of subsection (c) of this Section 7,
Employee will be considered to have been dismissed for
"Cause" if the Corporation or a subsidiary has terminated
Employee's employment because of:
(1) any act which has resulted in the Employee's
personal gain at the expense of the Corporation or any
of its subsidiaries, or because of incompetence,
insubordination or refusal to perform assigned duties;
(2) gross negligence, willful misconduct or
breach of fiduciary duty;
(3) conviction of a crime (other than minor
traffic violations or similar offenses);
(4) being under the influence of, or use, sale,
distribution, or possession of unauthorized or illegal
drugs or intoxicating beverages while on duty or on the
Corporation's or a subsidiary's premises;
(5) theft, embezzlement, fraud or forgery;
(6) willful destruction or defacement of the
Corporation's or a subsidiary's, a visitor's, or an
employee's property;
(7) unauthorized disclosure of confidential
information;
(8) falsifying or altering the Corporation's or a
subsidiary's records;
(9) continued and unexplained absences from work;
(10) or other conduct that results in a
substantial detriment to the business or reputation of
the Corporation or any of its subsidiaries;
in each case, as determined by the Committee.
If Employee is employed by an entity which ceases
to be a subsidiary, such event shall be deemed for purposes
of this Section 7 to be a termination of Employee's
employment described in subsection (b). Absence from work caused
by military service or authorized sick leave shall not be
considered as a termination of employment for purposes of
this Section.
8. Acceleration of Option. This Option shall
become immediately exercisable upon a Change in Control or
Event, except as otherwise provided in or pursuant to the
Section 7 of the Plan.
9. Termination of Option Under Certain
Circumstances. Upon an occurrence or transaction in which
the Corporation does not survive, the Option to the extent
not previously exercised shall terminate, provided that (1)
the Corporation or a successor shall have given to Employee
at least ten (10) days notice of any such termination, and
Employee shall have had the right prior to or simultaneously
with the consummation of such occurrence or transaction to
exercise his or her option as to all or any part of the
Common Stock subject to this Agreement, or (2) the Committee
shall have provided for the termination of this Option by
making an adjustment pursuant to the provisions of Section 7
of the Plan.
10. Non-Transferability of Option. During the
Employee's lifetime, this Option and any other rights
hereunder may be exercised only by the Employee or the
Employee's duly appointed guardian or legal representative.
This Option and such rights shall not be sold, transferred,
assigned, pledged, hypothecated or otherwise disposed of in
any way (whether by operation of law or otherwise);
provided, however, that nothing in this Section 10 shall
prevent transfers by will or by the applicable laws of
descent and distribution or pursuant to a "domestic
relations order" as defined by the Code; provided further,
that nothing in this Section 10 shall prevent transfers to
or exercises on behalf of the Employee by the Employee's
legal representative in the event that the Employee has
suffered a disability.
11. Notices. Any notice to be given under the
terms of this Agreement shall be in writing and addressed to
the Corporation at its principal office, to the attention of
the Corporate Secretary and to the Employee at the address
given beneath the Employee's signature hereto, or at such
other address as either party may hereafter designate in
writing to the other.
12. Employee not a Shareholder. Neither the
Employee nor any other person entitled to exercise the
Option shall have any of the rights or privileges of a
shareholder of the Corporation as to any shares of Common
Stock not actually issued and delivered to him prior to
delivery of the exercise price and satisfaction of all other
conditions precedent to the due exercise of the Option and
delivery of shares.
13. Effect of Award Agreement. This Agreement
shall be binding upon and inure to the benefit of any
successor or successors of the Corporation except to the
extent the Committee determines otherwise.
14. Laws Applicable to Construction. The Option
has been granted as of the Award Date, and the
interpretation, performance and enforcement of the Option
and this Agreement shall be governed by the laws of the State of
Nevada.
15. Plan. The Option and all rights of Employee
thereunder are subject to, and the Employee agrees to be
bound by, all of the terms and conditions of the provisions
of the Plan, incorporated herein by this reference. The
Employee acknowledges receipt of a copy of the Plan, which
is made a part hereof by this reference, and agrees to be
bound by the terms thereof. Unless otherwise expressly
provided in other Sections of this Agreement, provisions
of the Plan that confer discretionary authority on the
Committee do not (and shall not be deemed to) create any
rights in the Employee unless such rights are expressly set
forth herein or are otherwise in the sole discretion of the
Committee so conferred by appropriate action of the
Committee under the Plan after the date hereof.
16. Notice of Disposition. The Employee agrees
to notify the Corporation of any sale or other disposition
of any shares of Common Stock received upon exercise of the
Option, if such sale or disposition occurs within two (2)
years after the Award Date or within one (1) year after the
date of such exercise.
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused
this Agreement to be executed on its behalf by a duly
authorized officer and the Employee has hereunto set his
hand.
PRIMADONNA RESORTS, INC.
(a Nevada corporation)
Dated: _______________ By_________________________
Gary E. Primm
Chairman of the Board, President
and Chief Executive Officer
EMPLOYEE
Dated: _______________ __________________________
(Signature)
Name
Address
City, State Zip
<PAGE>
CONSENT OF SPOUSE
In consideration of the execution of the foregoing
Combination Employee Incentive and Nonqualified Stock Option
Agreement by Primadonna Resorts, Inc., I, ___________________
_________, the spouse of the Employee herein named, do hereby
join with my spouse in executing the foregoing Combination
Employee Incentive and Nonqualified Stock Option Agreement and
do hereby agree to be bound by all of the terms and
provisions thereof and of the Plan.
DATED: ______________, ____._____________________________
Signature of Spouse
<PAGE>
PRIMADONNA RESORTS, INC.
CONSULTING DIRECTOR NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT dated as of the ____ day of __________,
_____, between Primadonna Resorts, Inc., a Nevada corporation
(the "Corporation"), and __________________ (the "Consultant")
W I T N E S S E T H
WHEREAS, pursuant to the Amended and Restated 1993 Incentive
Plan (the "Plan"), the Corporation has granted to the Consultant
effective as of the ____ day of ________, _____ (the "Award
Date"), a nonqualified stock option to purchase all or any part
of ________ authorized but unissued or treasury shares of Common
Stock, $.01 par value, of the Corporation upon the terms and
conditions set forth herein and in the Plan.
NOW, THEREFORE, in consideration of the mutual promises and
covenants made herein, the past services (and the expectation of
continuing services, including services on the Corporation's
Board of Directors) of Consultant to the Corporation and the
mutual benefits to be derived herefrom, the parties agree as
follows:
1. Defined Terms. Capitalized terms used herein and not
otherwise defined herein shall have the meaning assigned to such
terms in the Plan.
2. Grant of Option. This Agreement evidences the
Corporation's grant to the Consultant of the right and option to
purchase, on the terms and conditions set forth herein and in the
Plan, all or any part of an aggregate of ________ shares of the
Common Stock at the price of $_____ per share (the "Option"),
exercisable from time to time, subject to the provisions of this
Agreement and the Plan, prior to the close of business on the day
before the tenth anniversary of the Award Date (the "Expiration
Date"). Such price equals the fair market value as of the Award
Date.
3. Exercisability of Option. Except as earlier permitted
by or pursuant to Section 4(c)(ii) of the Plan or by resolution
of the Committee adopted after the date hereof, no shares may be
purchased by exercise of the Option until the expiration of
twelve (12) months after the Award Date. The Option shall become
exercisable in installments as to ______% of the aggregate
number of shares set forth in Section 2 hereof (subject to
adjustment) on and after the first anniversary
of the Award Date and as to an additional
______% of such aggregate number of shares (subject to
adjustment) on each of the _______________ anniversaries of the
Award Date.
To the extent the Consultant does not in any year purchase
all or any part of the shares to which the Consultant is
entitled, the Consultant has the right cumulatively thereafter to
purchase any shares not so purchased and such right shall
continue until the Option terminates or expires. Fractional
share interests shall be disregarded, but may be cumulated. No
fewer than 100 shares may be purchased at any one time, unless
the number purchased is the total number at the time available
for purchase under the Option.
4. Method of Exercise of Option. The Option shall be
exercisable by the delivery to the Corporation of a written
notice stating the number of shares to be purchased pursuant to
the Option and accompanied by payment made
(a) in cash or by check payable to the order of the
Corporation;
(b) by exchange of Common Stock of the Corporation,
then having been owned by the Consultant for at least six
(6) months, having a then fair market value (as determined
by the Committee) equal to such purchase price;
(c) to the extent permitted (if any) by the Committee,
by promissory note of the Consultant, to be secured by a
security interest in the shares issued upon exercise and
such other collateral, if any, as the Committee may require;
(d) to the extent permitted (if any) by the Committee,
by reduction in the number of shares of Common Stock
deliverable upon exercise by that number of shares which
have a then fair market value (as determined by the
Committee) equal to such purchase price; or
(e) in any combination of the consideration permitted
by the foregoing subsections;
subject to such further limitations, rules and procedures as the
Committee may from time to time establish as to any non-cash
payment.
Any promissory note shall bear a rate of interest not less
than a rate, if any, as required under federal tax law to prevent
any imputation of interest, unless such rate exceeds the maximum
rate permissible under Nevada law, in which case the rate shall
not exceed the maximum permitted under Nevada law. All other
terms of such note shall be determined, subject to compliance
with applicable laws (including federal margin requirements if
applicable), solely by the Committee. All terms and conditions,
including whether the note shall become due upon Consultant's
termination of services, shall be expressly set forth in the
promissory note executed by the Consultant. In addition, the
Consultant (or the Consultant's beneficiary or personal
representative) shall furnish any written statements required
pursuant to Section 10(a) of the Plan.
5. Effect of Termination of Services or Death; Change in
Subsidiary Status. The Option and all other rights hereunder, to
the extent not exercised, shall terminate and become null and
void at such time as the Consultant ceases to serve as a member
of the Corporation's Board of Directors, except that
(a) if the Consultant's services terminate by reason
of his permanent and total disability (within the meaning of
Section 22(e)(3) of the Internal Revenue Code of 1986, as
amended (the "Code"), or as otherwise defined by the
Committee), Consultant may at any time within a period of
one (1) year after such termination exercise the Option to
the extent the Option was exercisable at the date of such
cessation;
(b) if the Consultant voluntarily ceases to perform
services with the consent of the Corporation, Consultant may
at any time within a period of three (3) months after such
cessation exercise the Option to the extent the Option was
exercisable at the date of such termination;
(c) if the Consultant dies prior to a termination of
service as a member of the Board of Directors of the
Corporation or within one (1) year after a termination
described in subsection (a) of this Section 5, or within
three (3) months after a cessation described in subsection
(b) of this Section 5, then the Option may be exercised
within a period of one (1) year after Consultant's date of
death by the Consultant's beneficiary to the extent the
Option was exercisable on the date of Consultant's death (or
such earlier cessation);
provided, however, that in no event may the Option be exercised
by anyone under this Section or otherwise after the Expiration
Date.
6. Acceleration of Option Upon Change in Control. This
Option shall become immediately exercisable upon a Change in
Control or Event, except as otherwise provided in or pursuant to
the Section 7 of the Plan.
7. Termination of Option Under Certain Events. The Option
to the extent not previously exercised shall terminate upon an
event or transaction which the Corporation does not survive
provided that (1) the Corporation or a successor shall have given
to Consultant at least ten (10) days notice of any such
termination, and Consultant shall have had the right prior to or
simultaneously with the consummation of the event or other
transaction to exercise his Option as to all or any part of the
Common Stock subject to this Agreement, or (2) the Committee
shall have provided for an adjustment pursuant to the provisions
of Section 7 of the Plan of the securities or other property
deliverable upon exercise of the Option.
8. Non-Transferability of Option. During the Consultant's
lifetime, this Option and any other rights hereunder may be
exercised only by the Consultant or the Consultant's duly
appointed guardian or legal representative. This Option and such
rights shall not be sold, transferred, assigned, pledged,
hypothecated or otherwise disposed of in any way (whether by
operation of law or otherwise); provided, however, that nothing
in this Section 8 shall prevent transfers by will or by the
applicable laws of descent and distribution or pursuant to a
"domestic relations order") as defined by the Code; provided
further, that nothing in this Section 8 shall prevent transfers
to or exercises on behalf of the Consultant by the Consultant's
legal representative in the event that the Consultant has
suffered a disability.
9. Notices. Any notice to be given under the terms of this
Agreement shall be in writing and addressed to the Corporation at
its principal office, to the attention of the Corporate Secretary
and to the Consultant at the address given beneath the
Consultant's signature hereto, or at such other address as either
party may hereafter designate in writing to the other.
10. Consultant not a Shareholder. Neither the Consultant
nor any other person entitled to exercise the Option shall have
any of the rights or privileges of a shareholder of the
Corporation as to any shares of Common Stock not actually issued
and delivered to him prior to delivery of the exercise price and
satisfaction of all other conditions precedent to the due
exercise of the Option and delivery of shares.
11. Effect of Award Agreement. This Agreement shall be
binding upon and inure to the benefit of any successor or
successors of the Corporation except to the extent the Committee
determines otherwise.
12. Laws Applicable to Construction. The Option has been
granted as of the Award Date, and the interpretation, performance
and enforcement of the Option and this Agreement shall be
governed by the laws of the State of Nevada.
13. Plan. The Option and all rights of Consultant
thereunder are subject to, and the Consultant agrees to be bound
by, all of the terms and conditions of the provisions of the
Plan, incorporated herein by this reference. The Consultant
acknowledges receipt of a copy of the Plan and agrees to be bound
by the terms thereof. Unless otherwise expressly provided in
other Sections of this Agreement, provisions of the Plan that
confer discretionary authority on the Committee do not (and shall
not be deemed to) create any rights in the Consultant unless such
rights are expressly set forth herein or are otherwise in the
sole discretion of the Committee so conferred by appropriate
action of the Committee under the Plan after the date hereof.
IN WITNESS WHEREOF, the Corporation has caused this
Agreement to be executed on its behalf by a duly authorized
officer and the Consultant has hereunto set his hand.
PRIMADONNA RESORTS, INC.
(a Nevada corporation)
By____________________________________
Gary E. Primm
President
Chairman of the Board
Chief Executive Officer
CONSULTANT
Name
___________________________________
(Signature)
___________________________________
(Address)
___________________________________
(City, State, Zip Code)
<PAGE>
PRIMADONNA RESORTS, INC.
COMBINATION EMPLOYEE INCENTIVE AND NON-INCENTIVE
STOCK OPTION AGREEMENT
THIS AGREEMENT is between Primadonna Resorts, Inc., a
Nevada corporation (the "Corporation"), and _______________ (the
"Employee").
W I T N E S S E T H
WHEREAS, pursuant to the 1993 Stock Incentive Plan (the
"Plan"), the Corporation has granted to the Employee effective as
of ______ ___, ____(the "Award Date") an incentive stock option
to purchase all or any part of ________ authorized but unissued
or treasury shares of Common Stock, $.01 par value, of the
Corporation upon the terms and conditions set forth herein and in
the Plan.
NOW, THEREFORE, in consideration of the mutual promises
and covenants made herein and the mutual benefits to be derived
herefrom, the parties agree as follows:
1. Defined Terms. Capitalized terms used herein and
not otherwise defined herein shall have the meaning assigned to
such terms in the Plan.
2. Grant of Option. This Agreement evidences the
Corporation's grant to the Employee of the right and option to
purchase, on the terms and conditions set forth herein and in the
Plan, all or any part of an aggregate of ________ shares of the
Common Stock at the price of $_____ per share (the "Option"),
exercisable from time to time, subject to the provisions of this
Agreement and the Plan, prior to the close of business on the day
before the tenth anniversary of the Award Date (the "Expiration
Date"). Such price equals the fair market value as of the Award
Date. It is the intent of the Corporation that this Option
constitute (to the extent permitted by law) an incentive stock
option ("ISO") within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"), with respect to
______ of the shares subject to the Option (the "ISO Shares") and
a non-qualified option with respect to any remainder of the
shares subject to the Option (the "Non-ISO Shares").
3. Exercisability of Option. Except as earlier
permitted by or pursuant to Section 4(c)(ii) of the Plan or by
resolution of the Committee adopted after the date hereof, no
shares may be purchased by exercise of the Option until the
expiration of twelve (12) months after the Award Date. The
Option shall become exercisable in installments (i) as to ______%
of the ISO Shares and ______% of the Non-ISO Shares (each subject
to adjustment) on and after the first anniversary of the Award
Date and (ii) as to an additional ______% of the ISO Shares and
an additional ______% of the Non-ISO Shares (each subject to
adjustment) on each of the ________________ anniversaries of the
Award Date.
To the extent the Employee does not in any year
purchase all or any part of the shares to which the Employee is
entitled, the Employee has the right cumulatively thereafter to
purchase any shares not so purchased and such right shall
continue until the Option terminates or expires. Fractional
share interests shall be disregarded, but may be cumulated. No
fewer than 100 shares may be purchased at any one time, unless
the number purchased is the total number at the time available
for purchase under the Option.
4. Limitation on Exercise of Option as an ISO. In
the event the Employee is granted incentive stock options
(whether under this Award Agreement or any other incentive stock
option agreement) and the aggregate fair market value (determined
as of the respective dates of grant of such options) of the
Common Stock with respect to which such options are first
exercisable in any calendar year exceeds $100,000, the most
recently granted options shall be treated as non-qualified stock
options to the extent of the excess. In addition, in the case of
simultaneously granted options, the Corporation may, in the
manner and to the extent permitted by law, designate which shares
are to be treated as stock acquired pursuant to the exercise of
an incentive stock option.
5. Method of Exercise of Option. The Option shall be
exercisable by the delivery to the Corporation of a written
notice stating the number of shares to be purchased pursuant to
the Option and accompanied by payment made
(a) in cash or by check payable to the order of
the Corporation;
(b) by exchange of Common Stock of the
Corporation, then having been owned by the Employee for at
least six (6) months, having a then fair market value (as
determined by the Committee) equal to such purchase price;
(c) to the extent permitted by the Committee, by
promissory note of the Employee, to be secured by a security
interest in the shares issued upon exercise and such other
collateral, if any, as the Committee may require;
(d) to the extent permitted by the Committee, by
reduction in the number of shares of Common Stock
deliverable upon exercise by that number of shares which
have a then fair market value (as determined by the
Committee) equal to such purchase price; or
(e) in any combination of the consideration
permitted by the foregoing subsections;
subject to such further limitations, rules and procedures as the
Committee may from time to time establish as to any non-cash
payment.
Any promissory note shall bear a rate of interest not
less than a rate, if any, as required under federal tax law to
prevent any imputation of interest, unless such rate exceeds the
maximum rate permissible under Nevada law, in which case the rate
shall not exceed the maximum permitted under Nevada law. All
other terms of such note shall be determined, subject to
compliance with applicable laws (including federal margin
requirements if applicable), solely by the Committee. All terms
and conditions, including whether the note shall become due upon
Employee's termination of employment, shall be expressly set
forth in the promissory note executed by the Employee. In
addition, the Employee (or the Employee's beneficiary or personal
representative) shall furnish any written statements required
pursuant to Section 10(a) of the Plan.
6. Continuance of Employment. As a condition of this
Option, the Employee hereby agrees to remain in the employ of the
Corporation or one of its subsidiaries for a period of one (1)
year after the Award Date. Nothing contained herein or in the
Plan shall confer upon the Employee any right with respect to the
continuation of employment by the Corporation or any subsidiary
or interfere in any way with the right of the Corporation or of
any subsidiary at any time to terminate such employment or to
increase or decrease the compensation of the Employee from the
rate in existence at any time.
7. Effect of Termination of Employment or Death;
Change in Subsidiary Status. The Option and all other rights
hereunder, to the extent not exercised, shall terminate and
become null and void at such time as the Employee ceases to be
employed by either the Corporation or any subsidiary, except that
(a) if the Employee terminates by reason of
permanent and total disability (within the meaning of
Section 22(e)(3) of the Code or as otherwise determined by
the Committee), Employee may at any time within a period of
one (1) year after such termination exercise the Option to
the extent the Option was exercisable at the date of such
termination;
(b) if the Employee terminates by reason of
voluntary retirement with the consent of the Corporation,
Employee may at any time within a period of three (3) months
after such termination exercise the Option to the extent the
Option was exercisable at the date of such termination;
(c) if the Employee terminates by reason of
resignation (other than pursuant to a dismissal for Cause
(as defined below) or in anticipation of such a dismissal
(as determined by the Committee)), Employee may at any time
within a period of 45 days after such termination exercise
the Option to the extent the Option was exercisable at the
date of such termination;
(d) if the Employee dies while in the employ of
the Corporation or any subsidiary, or within one (1) year
after a termination described in subsection (a) of this
Section 7, or within three (3) months after a termination
described in subsection (b) of this Section 7, or within 45
days after a termination described in subsection (c) of this
Section 6, then the Option may be exercised within a period
of one (1) year after Employee's date of death by the
Employee's beneficiary to the extent the Option was
exercisable on the date of Employee's death (or such earlier
termination);
provided, however, that in no event may the Option be exercised
by anyone under this Section or otherwise after the Expiration
Date.
For purposes of subsection (c) of this Section 7,
Employee will be considered to have been dismissed for "Cause" if
the Corporation or a subsidiary has terminated Employee's
employment because of any act which has resulted in the
Employee's personal gain at the expense of the Corporation or any
of its subsidiaries, or because of incompetence, insubordination
or refusal to perform assigned duties; gross negligence, willful
misconduct or breach of fiduciary duty; conviction of a crime
(other than minor traffic violations or similar offenses); being
under the influence of, or use, sale, distribution, or possession
of unauthorized or illegal drugs or intoxicating beverages while
on duty or on the Corporation's or a subsidiary's premises;
theft, embezzlement, fraud or forgery; willful destruction or
defacement of the Corporation's or a subsidiary's, a visitor's,
or an employee's property; unauthorized disclosure of
confidential information; falsifying or altering the
Corporation's or a subsidiary's records; continued and
unexplained absences from work; or other conduct that results in
a substantial detriment to the business or reputation of the
Corporation or any of its subsidiaries; in each case, as
determined by the Committee.
If Employee is employed by an entity which ceases to be
a subsidiary, such event shall be deemed for purposes of this
Section 7 to be a termination of Employee's employment described
in subsection (b). Absence from work caused by military service
or authorized sick leave shall not be considered as a termination
of employment for purposes of this Section.
8. Acceleration of Option.
(a) Definitions. For the purpose of Section 8,
the following capitalized terms shall have the meanings set
forth below:
(i) "Change in Control" shall mean the date
on which either:
a) the "Gary Primm Group" own less than
fifteen percent (15%) of the total voting power of
all classes of the Corporation's voting stock,
except as a result of sales made in order to pay
estate taxes owing as a result of the death of
Gary E. Primm;
b) any Person other than the Gary Primm
Group or the Primm Family, acting together in a
manner which would constitute a group for the
purposes of Section 13(d) of the Securities
Exchange Act of 1934 as amended (a "13(d) Group"),
shall beneficially own (within the meaning of
Rule 13d-3 promulgated under the Securities
Exchange Act of 1934 as amended voting power of
all classes of the Corporation's voting stock
equal to or greater than that owned by the Gary
Primm Group;
c) a 13(d) Group succeeds in having
sufficient of its directors on the Corporation's
Board of Directors such that the 13(d) Group's
directors will constitute a majority of the voting
power of the Corporation's Board of Directors; or
d) Gary E. Primm shall cease to be the
Corporation's Chairman of the Board of Directors,
except as a result of his death or disability.
(ii) "Gary Primm Group" shall mean Gary E.
Primm, his executors, administrators, testamentary
trustees, heirs, legatees or beneficiaries.
(iii) "Person" shall mean any legal entity,
including but not limited to any individual,
corporation, group or assemblage, partnership, limited
partnership, joint venture, association, joint stock
company, or trust.
(iv) "Primm Family" shall mean collective
reference to Janet Primm Rosa, Judith Primm Clemetson,
Joyce Primm Schweickert, Roger B. Primm and Gregory B.
Primm, their respective executors, administrators,
testamentary trustees, heirs, legatees and
beneficiaries.
(v) "Event" shall mean approval by the
stockholders of the Corporation of any of the
following:
a) The dissolution or liquidation of
the Corporation;
b) An agreement to merge or
consolidate, or otherwise reorganize, with or into
one or more entities which are not Subsidiaries,
as a result of which less than 50% of the
outstanding voting securities of the surviving or
resulting entity are, or are to be, owned by
former stockholders of the Corporation; or
c) The sale of substantially all of the
Corporation's business and/or assets to a person
or entity which is not a Subsidiary.
(vi) "Subsidiary" shall mean any corporation
or other entity a majority or more of the outstanding
voting stock or voting power of which is beneficially
owned directly or indirectly by the Corporation.
(b) Acceleration of Option. As to the Option,
unless prior to a Change in Control or Event the Committee
determines that, upon its occurrence, there shall be no
acceleration of benefits under this Agreement or determines
that only certain or limited benefits under this Agreement
shall be accelerated and the extent to which they shall be
accelerated and/or establishes a different time in respect
of such event for such acceleration, then upon the
occurrence of a Change in Control or Event the Option
granted under this Agreement shall become immediately
exercisable. The Committee may override the limitations on
acceleration in this Section 8 by express provision in this
Agreement and may accord the Employee a right to refuse any
acceleration, whether pursuant to this Agreement or
otherwise, in such circumstances as the Committee may
approve. Any acceleration of the Option shall comply with
applicable regulatory requirements, including without
limitation Section 422 of the Code.
9. Termination of Option Under Certain Circumstances.
Upon an occurrence or transaction in which the Corporation does
not survive, the Option to the extent not previously exercised
shall terminate, provided that (1) the Corporation or a successor
shall have given to Employee at least ten (10) days notice of any
such termination, and Employee shall have had the right prior to
or simultaneously with the consummation of such occurrence or
transaction to exercise his or her option as to all or any part
of the Common Stock subject to this Agreement, or (2) the
Committee shall have provided for the termination of this Option
by making an adjustment pursuant to the provisions of Section 7
of the Plan.
10. Non-Transferability of Option. During the
Employee's lifetime, this Option and any other rights hereunder
may be exercised only by the Employee or the Employee's duly
appointed guardian or legal representative. This Option and such
rights shall not be sold, transferred, assigned, pledged,
hypothecated or otherwise disposed of in any way (whether by
operation of law or otherwise); provided, however, that nothing
in this Section 10 shall prevent transfers by will or by the
applicable laws of descent and distribution or, effective
September 1, 1993 (or such later date as may be established by
the Committee) pursuant to a "qualified domestic relations order"
as defined by the Code.
11. Notices. Any notice to be given under the terms
of this Agreement shall be in writing and addressed to the
Corporation at its principal office, to the attention of the
Corporate Secretary and to the Employee at the address given
beneath the Employee's signature hereto, or at such other address
as either party may hereafter designate in writing to the other.
12. Employee not a Shareholder. Neither the Employee
nor any other person entitled to exercise the Option shall have
any of the rights or privileges of a shareholder of the
Corporation as to any shares of Common Stock not actually issued
and delivered to him prior to delivery of the exercise price and
satisfaction of all other conditions precedent to the due
exercise of the Option and delivery of shares.
13. Effect of Award Agreement. This Agreement shall
be binding upon and inure to the benefit of any successor or
successors of the Corporation except to the extent the Committee
determines otherwise.
14. Laws Applicable to Construction. The Option has
been granted as of the Award Date, and the interpretation,
performance and enforcement of the Option and this Agreement
shall be governed by the laws of the State of Nevada.
15. Plan. The Option and all rights of Employee
thereunder are subject to, and the Employee agrees to be bound
by, all of the terms and conditions of the provisions of the
Plan, incorporated herein by this reference. The Employee
acknowledges receipt of a copy of the Plan, which is made a part
hereof by this reference, and agrees to be bound by the terms
thereof. Unless otherwise expressly provided in other Sections
of this Agreement, provisions of the Plan that confer
discretionary authority on the Committee do not (and shall not be
deemed to) create any rights in the Employee unless such rights
are expressly set forth herein or are otherwise in the sole
discretion of the Committee so conferred by appropriate action of
the Committee under the Plan after the date hereof.
16. Notice of Disposition. The Employee agrees to
notify the Corporation of any sale or other disposition of any
shares of Common Stock received upon exercise of the Option, if
such sale or disposition occurs within two (2) years after the
Award Date or within one (1) year after the date of such
exercise.
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this
Agreement to be executed on its behalf by a duly authorized
officer and the Employee has hereunto set his hand.
PRIMADONNA RESORTS, INC.
(a Nevada corporation)
Dated: _______________ By_________________________
Gary E. Primm
Chairman of the Board, President
and Chief Executive Officer
EMPLOYEE
Dated: _______________ __________________________
(Signature)
Name
Address
City, State Zip
<PAGE>
CONSENT OF SPOUSE
In consideration of the execution of the foregoing
Incentive Stock Option Agreement by Primadonna Resorts, Inc., I,
____________________________, the spouse of the Employee herein
named, do hereby join with my spouse in executing the foregoing
Incentive Stock Option Agreement and do hereby agree to be bound
by all of the terms and provisions thereof and of the Plan.
DATED: ______________, 19__. _____________________________
Signature of Spouse
<PAGE>
PRIMADONNA RESORTS, INC.
CONSULTANT NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT dated as of the ____ day of __________,
_____, between Primadonna Resorts, Inc., a Nevada corporation
(the "Corporation"), and __________________ (the "Consultant")
W I T N E S S E T H
WHEREAS, pursuant to the 1993 Stock Incentive Plan (the
"Plan"), the Corporation has granted to the Consultant effective
as of the ____ day of ________, _____ (the "Award Date"), a
nonqualified stock option to purchase all or any part of ________
authorized but unissued or treasury shares of Common Stock, $.01
par value, of the Corporation upon the terms and conditions set
forth herein and in the Plan.
NOW, THEREFORE, in consideration of the mutual promises and
covenants made herein, the past services (and the expectation of
continuing services, including services on the Corporation's
Board of Directors) of Consultant to the Corporation and the
mutual benefits to be derived herefrom, the parties agree as
follows:
1. Defined Terms. Capitalized terms used herein and not
otherwise defined herein shall have the meaning assigned to such
terms in the Plan.
2. Grant of Option. This Agreement evidences the
Corporation's grant to the Consultant of the right and option to
purchase, on the terms and conditions set forth herein and in the
Plan, all or any part of an aggregate of ________ shares of the
Common Stock at the price of $_____ per share (the "Option"),
exercisable from time to time, subject to the provisions of this
Agreement and the Plan, prior to the close of business on the day
before the tenth anniversary of the Award Date (the "Expiration
Date"). Such price equals the fair market value as of the Award
Date.
3. Exercisability of Option. Except as earlier permitted
by or pursuant to Section 4(c)(ii) of the Plan or by resolution
of the Committee adopted after the date hereof, no shares may be
purchased by exercise of the Option until the expiration of
twelve (12) months after the Award Date. The Option shall become
exercisable in installments as to ______% of the aggregate
number of shares set forth in Section 2 hereof (subject to
adjustment) on and after the first anniversary of the Award
Date and as to an additional ______% of such aggregate number
of shares (subject to adjustment) on each of the _______________
anniversaries of the Award Date.
<PAGE>
To the extent the Consultant does not in any year purchase
all or any part of the shares to which the Consultant is
entitled, the Consultant has the right cumulatively thereafter to
purchase any shares not so purchased and such right shall
continue until the Option terminates or expires. Fractional
share interests shall be disregarded, but may be cumulated. No
fewer than 100 shares may be purchased at any one time, unless
the number purchased is the total number at the time available
for purchase under the Option.
4. Method of Exercise of Option. The Option shall be
exercisable by the delivery to the Corporation of a written
notice stating the number of shares to be purchased pursuant to
the Option and accompanied by payment made
(a) in cash or by check payable to the order of the
Corporation;
(b) by exchange of Common Stock of the Corporation,
then having been owned by the Consultant for at least six
(6) months, having a then fair market value (as determined
by the Committee) equal to such purchase price;
(c) to the extent permitted by the Committee, by
promissory note of the Consultant, to be secured by a
security interest in the shares issued upon exercise and
such other collateral, if any, as the Committee may require;
(d) to the extent permitted by the Committee, by
reduction in the number of shares of Common Stock
deliverable upon exercise by that number of shares which
have a then fair market value (as determined by the
Committee) equal to such purchase price; or
(e) in any combination of the consideration permitted
by the foregoing subsections;
subject to such further limitations, rules and procedures as the
Committee may from time to time establish as to any non-cash
payment.
Any promissory note shall bear a rate of interest not less
than a rate, if any, as required under federal tax law to prevent
any imputation of interest, unless such rate exceeds the maximum
rate permissible under Nevada law, in which case the rate shall
not exceed the maximum permitted under Nevada law. All other
terms of such note shall be determined, subject to compliance
with applicable laws (including federal margin requirements if
applicable), solely by the Committee. All terms and conditions,
including whether the note shall become due upon Consultant's
termination of services, shall be expressly set forth in the
promissory note executed by the Consultant. In addition, the
Consultant (or the Consultant's beneficiary or personal
representative) shall furnish any written statements required
pursuant to Section 10(a) of the Plan.
5. Effect of Termination of Services or Death; Change in
Subsidiary Status. The Option and all other rights hereunder, to
the extent not exercised, shall terminate and become null and
void at such time as the Consultant ceases to serve as a member
of the Corporation's Board of Directors, except that
(a) if the Consultant's services terminate by reason
of his permanent and total disability (within the meaning of
Section 22(e)(3) of the Internal Revenue Code of 1986, as
amended (the "Code"), or as otherwise defined by the
Committee), Consultant may at any time within a period of
one (1) year after such termination exercise the Option to
the extent the Option was exercisable at the date of such
cessation;
(b) if the Consultant voluntarily ceases to perform
services with the consent of the Corporation, Consultant may
at any time within a period of three (3) months after such
cessation exercise the Option to the extent the Option was
exercisable at the date of such termination;
(c) if the Consultant dies prior to a termination of
service as a member of the Board of Directors of the
Corporation or within one (1) year after a termination
described in subsection (a) of this Section 5, or within
three (3) months after a cessation described in subsection
(b) of this Section 5, then the Option may be exercised
within a period of one (1) year after Consultant's date of
death by the Consultant's beneficiary to the extent the
Option was exercisable on the date of Consultant's death (or
such earlier cessation);
provided, however, that in no event may the Option be exercised
by anyone under this Section or otherwise after the Expiration
Date.
6. Acceleration of Option Upon Change in Control.
(a) Definitions. For the purpose of Section 6, the
following capitalized terms shall have the meanings set
forth below:
i) "Change in Control" shall mean the date on
which either:
a) the "Gary Primm Group" own less than
fifteen percent (15%) of the total voting
power of all classes of the Corporation's
voting stock, except as a result of sales
made in order to pay estate taxes owing as a
result of the death of Gary E. Primm;
b) any Person other than the Gary Primm
Group or the Primm Family, acting together in
a manner which would constitute a group for
the purposes of Section 13(d) of the
Securities Exchange Act of 1934 as amended (a
"13(d) Group"), shall beneficially own
(within the meaning of Rule 13d-3 promulgated
under the Securities Exchange Act of 1934 as
amended voting power of all classes of the
Corporation's voting stock equal to or
greater than that owned by the Gary Primm
Group;
c) a 13(d) Group succeeds in having
sufficient of its directors on the
Corporation's Board of Directors such that
the 13(d) Group's directors will constitute a
majority of the voting power of the
Corporation's Board of Directors; or
d) Gary E. Primm shall cease to be the
Corporation's Chairman of the Board of
Directors, except as a result of his death or
disability.
ii) "Gary Primm Group" shall mean Gary E. Primm,
his executors, administrators, testamentary
trustees, heirs, legatees or beneficiaries.
iii) "Person" shall mean any legal entity,
including but not limited to any individual,
corporation, group or assemblage, partnership,
limited partnership, joint venture, association,
joint stock company, or trust.
iv) "Primm Family" shall mean collective
reference to Janet Primm Rosa, Judith Primm
Clemetson, Joyce Primm Schweickert, Roger B. Primm
and Gregory B. Primm, their respective executors,
administrators, testamentary trustees, heirs,
legatees and beneficiaries.
(b) Acceleration of Option. As to the Option, unless
prior to a Change in Control the Committee determines that,
upon its occurrence, there shall be no acceleration of
benefits under this Agreement or determines that only
certain or limited benefits under this Agreement shall be
accelerated and the extent to which they shall be
accelerated and/or establishes a different time in respect
of such event for such acceleration, then upon the
occurrence of a Change in Control (i) the Option granted
under this Agreement shall become immediately exercisable,
(ii) any shares of Common Stock purchased pursuant to the
Option yet subject to payment of consideration, if any, and
such conditions on vesting and such transfer and other
restrictions as are established in or pursuant to the Plan
shall immediately vest free of restrictions, and (iii) any
other rights, including rights to payment, provided for in
this Agreement shall immediately vest or become payable to
the Employee. The Committee may override the limitations on
acceleration in this Section 8 by express provision in this
Agreement and may accord the Employee a right to refuse any
acceleration, whether pursuant to this Agreement or
otherwise, in such circumstances as the Committee may
approve. Any acceleration of the Option shall comply with
applicable regulatory requirements, including without
limitation Section 422 of the Code.
7. Termination of Option Under Certain Events. The Option
to the extent not previously exercised shall terminate upon an
event or transaction which the Corporation does not survive
PROVIDED THAT (1) THE CORPORATION OR A SUCCESSOR SHALL HAVE GIVEN
TO CONSULTANT AT LEAST TEN (10) DAYS NOTICE OF ANY SUCH
TERMINATION, AND CONSULTANT SHALL HAVE HAD THE RIGHT PRIOR TO OR
SIMULTANEOUSLY WITH THE CONSUMMATION OF THE EVENT OR OTHER
TRANSACTION TO EXERCISE HIS OPTION AS TO ALL OR ANY PART OF THE
COMMON STOCK SUBJECT TO THIS AGREEMENT, OR (2) THE COMMITTEE
SHALL HAVE PROVIDED FOR AN ADJUSTMENT PURSUANT TO THE PROVISIONS
OF SECTION 7 OF THE PLAN OF THE SECURITIES OR OTHER PROPERTY
DELIVERABLE UPON EXERCISE OF THE OPTION.
8. Non-Transferability of Option. During the Consultant's
lifetime, this Option and any other rights hereunder may be
exercised only by the Consultant or the Consultant's duly
appointed guardian or legal representative. This Option and such
rights shall not be sold, transferred, assigned, pledged,
hypothecated or otherwise disposed of in any way (whether by
operation of law or otherwise); provided, however, that nothing
in this Section 7 shall prevent transfers by will or by the
applicable laws of descent and distribution or, effective
September 1, 1993 (or such later date as may be established by
the Committee) pursuant to a "qualified domestic relations
order") as defined by the Code.
9. Notices. Any notice to be given under the terms of this
Agreement shall be in writing and addressed to the Corporation at
its principal office, to the attention of the Corporate Secretary
and to the Consultant at the address given beneath the
Consultant's signature hereto, or at such other address as either
party may hereafter designate in writing to the other.
10. Consultant not a Shareholder. Neither the Consultant
nor any other person entitled to exercise the Option shall have
any of the rights or privileges of a shareholder of the
Corporation as to any shares of Common Stock not actually issued
and delivered to him prior to delivery of the exercise price and
satisfaction of all other conditions precedent to the due
exercise of the Option and delivery of shares.
11. Effect of Award Agreement. This Agreement shall be
binding upon and inure to the benefit of any successor or
successors of the Corporation except to the extent the Committee
determines otherwise.
12. Laws Applicable to Construction. The Option has been
granted as of the Award Date, and the interpretation, performance
and enforcement of the Option and this Agreement shall be
governed by the laws of the State of Nevada.
13. Plan. The Option and all rights of Consultant
thereunder are subject to, and the Consultant agrees to be bound
by, all of the terms and conditions of the provisions of the
Plan, incorporated herein by this reference. The Consultant
acknowledges receipt of a copy of the Plan and agrees to be bound
by the terms thereof. Unless otherwise expressly provided in
other Sections of this Agreement, provisions of the Plan that
confer discretionary authority on the Committee do not (and shall
not be deemed to) create any rights in the Consultant unless such
rights are expressly set forth herein or are otherwise in the
sole discretion of the Committee so conferred by appropriate
action of the Committee under the Plan after the date hereof.
IN WITNESS WHEREOF, the Corporation has caused this
Agreement to be executed on its behalf by a duly authorized
officer and the Consultant has hereunto set his hand.
PRIMADONNA RESORTS, INC.
(a Nevada corporation)
By __________________________
Gary E. Primm
President
Chairman of the Board
Chief Executive Officer
CONSULTANT
Name
_______________________________
(Signature)
_______________________________
(Address)
_______________________________
(CITY, STATE, ZIP CODE)
<PAGE>
[O'MELVENY & MYERS LLP LETTERHEAD]
August
8th
1 9 9 7
Primadonna Resorts, Inc.
P.O. Box 95997
I-15 at the Southern California/Nevada Border
Las Vegas, Nevada 89193-5997
Re: Registration on Form S-8 of Primadonna Resorts, Inc. (the
"Company")
Ladies and Gentlemen:
You have advised us that you propose to file a
Registration Statement on Form S-8 with the Securities
and Exchange Commission in connection with registration
under the Securities Act of 1933, as amended, of an
additional 1,500,000 shares (the "Shares") of Common
Stock, $.01 par value of the Company (the "Common Stock"),
to be issued pursuant to the Company's Amended and
Restated 1993 Incentive Plan (the "Plan"), under which
Plan, previously called the 1993 Stock Incentive Plan, 1,500,000
shares of Common Stock were initially registered pursuant to
the Company's Registration Statement on Form S-8, filed
with the Securities and Exchange Commission
on October 26, 1993.
At your request, we have examined the proceedings
heretofore taken and to be taken in connection with the
authorization of the Plan and the Common Stock to
be issued pursuant to and in accordance with the
Plan. Based upon such examination and upon such
matters of fact and law as we have deemed relevant,
we are of the opinion that the Shares have been
duly authorized by all necessary corporate action on
the part of the Company and, when issued in accordance
with such authorization and appropriate Committee
action under the Plan, the provisions of the Plan
and relevant agreements duly authorized by and in
accordance with the terms of the Plan, will be
validly issued, fully paid and nonassessable shares of
Common Stock.
We consent to the use of this opinion as an
exhibit to the Registration Statement.
Respectfully submitted,
O'Melveny & Myers LLP
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to
the incorporation by reference in this Form S-8 Registration
Statement of our report dated January 29, 1997 included in
Primadonna Resorts, Inc.'s Annual Report on Form 10-K for the
year ended December 31, 1996 and to all references to our Firm
included in this Registration Statement.
ARTHUR ANDERSEN LLP
Las Vegas, Nevada
July 29, 1997
