<PAGE>
As filed with the Securities and Exchange Commission on July 26, 1996
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Harveys Casino Resorts
(Exact Name of Registrant as Specified in Its Charter)
Nevada 88-0066882
(State or Other Jurisdiction of (I.R.S. Employer Identification
Incorporation or Organization) Number)
P.O. Box 128
Highway 50 & Stateline Avenue
Lake Tahoe, Nevada 89449
(702) 588-2411
(Address, Including Zip Code, and Telephone Number, Including Area Code,)
of Registrant's Principal Executive Offices)
HARVEYS CASINO RESORTS 1996 OMNIBUS INCENTIVE PLAN
(Full title of Plan)
------------------------------
Mr. John J. McLaughlin
Senior Vice President, Chief Financial Officer and Treasurer
Harveys Casino Resorts
P.O. Box 128
Lake Tahoe, Nevada 89449
(702) 588-2411
(Name, Address, Including Zip Code, and Telephone Number, Including
Area Code, of Agent For Service)
Copies to:
Peter P. Wallace, Esq.
Milbank, Tweed, Hadley & McCloy
601 South Figueroa Street
Los Angeles, California 90017
(213) 892-4000
CALCULATION OF REGISTRATION FEE
================================================================================
Title of Amount to be Proposed maximum Proposed Amount of
Securities registered (1) Offering price per maximun registration
to be share (2) aggregate fee (2)
Registered offering
price (2)
================================================================================
Common 500,000 $19.50 $9,750,000 $3,363.00
Stock, par
value $.01
per share
===============================================================================
(1) There are also registered hereby such indeterminate number of shares of
Common Stock as may become issuable by reason of operation of the
anti-dilution provisions of the Harveys Casino Resorts 1996 Omnibus
Incentive Plan of the Registrant described herein.
<PAGE>
(2) Pursuant to Rule 457 under the Securities Act of 1933, as amended, the
proposed maximum offering price per share and the proposed maximum
aggregate offering price are estimated solely for purposes of calculating
the registration fee and are based upon the following information: (1)No
options covering shares of Common Stock to be registered under this
Registration Statement have yet been issued; and (ii) the basis for
calculating the registration fee for the options covering 500,000 shares
registered hereby is the average of the high and low prices of the Common
Stock of the Registrant on the New York Stock Exchange on July 24, 1996.
<PAGE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10 PROSPECTUS
Item 1. Plan Information
Information required by Part I to be contained in the Section 10(a)
Prospectus is omitted from the Registration Statement in accordance with
Rule 428 promulgated pursuant to the Securities Act of 1933, as amended (the
Securities Act') and the Note to Part I on Form S-8. Harveys Casino Resorts
(the Registrant') has delivered or caused to be delivered to each offeree of
securities covered by this Registration Statement the Prospectus relating
thereto.
Item 2. Registrant Information and Employee Plan Annual Information
The Registrant will, upon written or oral request, provide without
charge to any person to whom the Prospectus relating to this Registration
Statement is delivered, a copy of any and all of the information which has been
incorporated by reference in such Prospectus and this Registration Statement
(pursuant to Item 3 of Part II below) as well as other documents required by
Rule 428(b) promulgated pursuant to the Securities Act. Such requests should be
directed to the Chief Financial Officer, Harveys Casino Resorts, P.O. Box 128,
Highway 50 & Stateline Avenue, Lake Tahoe, Nevada 89449
(telephone (702) 588-2411).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents filed by the Registrant with the Securities
and Exchange Commission (the Commission') are incorporated by reference in this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
November 30, 1995, filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934, as amended (the Exchange Act').
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended
February 29, 1996, filed pursuant to Section 13(a) of the Exchange Act.
(c) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended
May 31, 1996, filed pursuant to Section 13(a) of the Exchange Act.
(d) The description of the Registrant's common stock contained in the
Registration Statement on Form 8-A filed by the Registrant under Section 12
of the Exchange Act and declared effective by the Commission on February
14, 1994, including any amendment or report updating such description of
Common Stock.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment to the Registration Statement which indicates that
all of the shares of Common Stock registered hereunder have been sold or which
deregisters all of such shares of Common Stock then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
part hereof from the date of filing such documents.
Item 4. Description of Securities
Only securities registered under Section 12 of the Exchange Act are
being offered.
<PAGE>
Item 5. Interests of Named Experts and Counsel
The legality of the shares of Common Stock offered hereunder and by
the Prospectus to which this Registration Statement relates has been passed upon
by Scarpello & Alling, Ltd., Stateline, Nevada. Ronald D. Alling, a partner of
Scarpello & Alling, Ltd., owns 7,300 shares of Common Stock of the Registrant
through the Scarpello & Alling, Ltd. Profit-Sharing Plan and Trust. Peter P.
Adamco, an associate attorney of Scarpello & Alling, Ltd., directly owns 100
shares of Common Stock of the Registrant.
Item 6. Indemnification of Directors and Officers
Section 78.751 of the Nevada Revised Statutes and the Registrant's
Articles of Incorporation and Bylaws contain provisions for indemnification of
officers and directors and certain representatives of the Registrant. The
Bylaws require the Registrant to indemnify and hold harmless such persons to the
full extent permitted by Nevada law. Each such person will be indemnified in
any proceeding if he acted in good faith and in a manner which he reasonably
believed to be in, or not opposed to, the best interests of the Registrant.
Indemnification would cover expenses, including attorneys' fees, judgments,
fines and amounts paid or to be paid in settlement.
The Registrant's Bylaws also provide that the Registrant's Board of
Directors may cause the Registrant to purchase and maintain insurance on behalf
of any present or past director or officer insuring against any liability
asserted against such person incurred in the capacity of director or officer or
arising out of such status, whether or not the Registrant would have the power
to indemnify such person. The Registrant intends to obtain directors' and
officers' liability insurance.
The Registrant has entered into indemnification agreements (the
Indemnification Agreements') with its directors and certain officers. Each
Indemnification Agreement provides for, among other things: (i) indemnification
to the fullest extent permitted by law against any and all expenses, judgments,
fines, penalties and amounts paid in settlement of any claim against an
indemnified party (the "Indemnitee") unless it is determined, as provided in the
Indemnification Agreement, that indemnification is not permitted under law and
(ii) prompt advancement of expenses to any Indemnitee in connection with his or
her defense against any claim.
Item 8. Exhibits
4.1* Restated Articles of Incorporation of the Registrant.
4.2* Bylaws of the Registrant.
4.3* Specimen Common Stock Certificate for the Registrant.
4.4 1996 Omnibus Incentive Plan.
5 Opinion of Scarpello & Alling, Ltd.
23.1 Consent of Grant Thornton LLP.
23.2 Consent of Scarpello & Alling, Ltd. (included in Exhibit 5).
24 Power of Attorney (contained on the signature page hereof).
- ----------------
* Incorporated by reference to the Registrant's Registration Statement on Form
S-1 (File No. 33-70670)
<PAGE>
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement
to include any material information with respect to the plan of
distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(C) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than payment by the
Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
<PAGE>
<PAGE>
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of
1933, 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 its behalf by the undersigned, thereunto
duly authorized, in the City of Stateline, State of Nevada, on this 26 day of
July, 1996.
HARVEYS CASINO RESORTS
By: /s/ John J. McLaughlin
Name: John J. McLaughlin
Title: Chief Financial Officer
POWER OF ATTORNEY
The Registrant and each person whose signature appears below hereby
authorizes Charles W. Scharer and John J. McLaughlin, and each of them, his true
and lawful attorneys-in-fact and agents, with full power 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 Commission, granting unto
said attorneys-in-fact and agents full power and authority to do so and perform
each and every act and thing requisite or 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 or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof and the Registrant hereby confers like
authority on its behalf.
<PAGE>
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE TITLE DATE
/s/Thomas M. Yturbide Chairman of the Board July 25,1996
- -------------------------- and Director
/s/William B. Ledbetter Vice Chairman of the Board
- -------------------------- Secretary and Director July 25,1996
/s/Charles W. Scharer President, Chief Executive
- -------------------------- Officer and Director
(Principal Executive Officer) July 25,1996
/s/John J. McLaughlin Senior Vice President and
- -------------------------- Chief Financial Officer
(Principal Financial Officer) July 25,1996
/s/John P. Hewitt Corporate Controller
- -------------------------- (Principal Accounting Officer) July 25,1996
/s/Richard F. Kudrna, Sr. Chairman Emeritus and
- -------------------------- Director July 25,1996
Director July 25,1996
- --------------------------
Jessica L. Ledbetter
/s/Kirk B. Ledbetter Director July 25,1996
- --------------------------
/s/Luther Mack, Jr. Director July 25,1996
- --------------------------
/s/Franklin K. Rahbeck Director July 25,1996
- --------------------------
<PAGE>
EXHIBIT INDEX
EXHIBIT DESCRIPTION SEQUENTIALLY
NUMBER NUMBERED
PAGE
- --------------------------------------------------------------------------------
4.1 Restated Articles of Incorporation of the
Registrant.
4.2* Bylaws of the Registrant.
4.3* Specimen Common Stock Certificate for the
Registrant.
4.4 1996 Omnibus Incentive Plan.
5 Opinion of Scarpello & Alling, Ltd.
23.1 Consent of Grant Thornton LLP.
23.2 Consent of Scarpello & Alling, Ltd.
(included in Exhibit 5).
24 Power of Attorney (contained on the signature
page hereof).
- -----------------
* Incorporated by reference to the Registrant's Registration Statement on Form
S-1 (File No. 33-70670)
<PAGE>
Exhibit 4.4
<PAGE>
<PAGE>
HARVEYS CASINO RESORTS
1996 OMNIBUS INCENTIVE PLAN
1. PURPOSE. The purpose of the 1996 Omnibus Incentive Plan (the Plan') is to
further the interests of Harveys Casino Resorts ( Harveys'), its Subsidiaries
and its shareholders by enabling Harveys Board of Directors to award cash and
equity based incentives to key employees. It is intended that the Plan will
help secure, retain and motivate employees of the highest calibre and potential.
2. DEFINITIONS. For purposes of the Plan, the following terms shall have the
meanings set forth below:
(a) AWARD' means a grant of Stock Options, Stock Appreciation Rights,
Restricted Stock, Performance Awards, Dividend Equivalents or other forms of
incentives under this Plan.
(b) AGREEMENT' means a written agreement between Harveys and a
Participant setting forth the terms and conditions of an Award.
(c) BOARD' means the Board of Directors of Harveys.
(d) CAUSE' means (i) the willful and continued failure of a Participant
to perform his or her duties other than such failure resulting from the
Participant's incapacity due to physical or mental illness or injury; (ii) the
conviction of the Participant of a felony; or (iii) the willful engaging by the
Participant in misconduct which is materially injurious to Harveys.
(e) CODE' means the Internal Revenue Code of 1986, as in effect and as
amended from time to time, or any successor statute thereto, together with any
rules, regulations and interpretations promulgated thereunder or with respect
thereto.
(f) COMMITTEE' means the committee of the Board established to administer
the Plan, as described in Section 3 of the Plan.
(g) COMMON STOCK' means the common stock of Harveys or any security of
Harveys issued in substitution or exchange therefore.
(h) DIVIDEND EQUIVALENT' means an award granted pursuant to Section 11 of
the Plan.
(i) DISABILITY' means disability as defined in the Participant's
then-effective employment agreement, or if the Participant is not then a party
to an effective employment agreement with Harveys which defines disability,
Disability' means disability as determined by the Committee in accordance with
standards and procedures similar to those under Harveys' long-term disability
plan, if any. If disability is not defined in either an employment agreement or
a long-term disability program, Disability' means any physical or mental
disability which is determined to be total and permanent by a physician selected
in good faith by Harveys.
(j) EXCHANGE ACT' means the Securities Exchange Act of 1934, as in effect
and as amended from time to time, or any successor statute thereto, together
with any rules, regulations and interpretations promulgated thereunder.
(k) GAMING AUTHORITIES' means the Nevada Gaming Control Board and the
Gaming Commission of the State of Nevada.
(l) HARVEYS' means Harveys Casino Resorts, a Nevada corporation, or any
successor to Harveys Casino Resorts.
<PAGE>
(m) INCENTIVE STOCK OPTION' means an option granted pursuant to Section 7
of this Plan which is intended to be, and meets the requirements of, an
incentive stock option' under Section 422 of the Code.
(n) NON-QUALIFIED STOCK OPTION' means any option granted pursuant to the
provisions of this Plan which is not, and is designated as not being, an
Incentive Stock Option.
(o) PARTICIPANT' means any individual selected to receive an award under
this Plan.
(p) PERFORMANCE AWARD' means an Award granted pursuant to Section 10 of
this Plan.
(q) PLAN' means the Harveys Casino Resorts 1996 Omnibus Incentive Plan,
as set forth herein and as in effect and as amended from time to time (together
with any rules, regulations and guidelines promulgated thereunder).
(r) PROGRAM GUIDELINES' means the guidelines for granting and
administering Awards established pursuant to Section 3(c) of this Plan.
(s) RELOAD STOCK OPTION' means any Non-Qualified Stock Option granted
pursuant to the provisions of Section 7(g) of this Plan.
(t) RESTRICTED STOCK' means the restricted shares of Common Stock granted
pursuant to the provisions of Section 9 of this Plan.
(u) RETIREMENT' means the voluntary retirement by the Participant from
active employment with Harveys and its Subsidiaries (i) on or after attaining
age 65, or (ii) on or after attaining age 60, with the consent of the Board and
subject to such rules or requirements as may be established for such purpose.
(v) STOCK APPRECIATION RIGHT' means an Award granted pursuant to Section
8 of this Plan.
(w) SUBSIDIARY' means any corporation (other than Harveys) in an unbroken
chain of corporations, including and beginning with Harveys, if each of such
corporations, other than the last corporation in the unbroken chain, owns,
directly or indirectly, more than fifty percent of the voting stock of one of
the other corporations in such chain.
3. ADMINISTRATION. The Plan shall be administered by a Committee appointed
by the Board to administer the Plan.
(a) Committee Membership. The Committee shall consist of not less than
three disinterested' directors within the meaning of Rule 16b-3 as promulgated
by the Securities and Exchange Commission under the Exchange Act or any
successor rule or regulation thereto. No member of the Committee shall be
eligible to receive Awards under the Plan. The Board may from time to time
remove members from the Committee, fill vacancies in the Committee and may
select one of the members of the Committee as its chairman.
(b) Plan Administration. The Committee shall have full and final
authority in its discretion to interpret the provisions of the Plan and to
decide all questions of fact arising in its application; to determine the
employees to whom Awards shall be made under the Plan; to determine the type of
Award to be made and the amount, size, timing, and terms of each such Award; and
to make all other determinations necessary or advisable for the effective
administration of the Plan. The Committee may designate persons other than
members of the Committee to carry out the day-to-day ministerial administration
of the Plan and may seek independent advice and counsel from such professional
advisors as it deems necessary; provided that the Committee may not delegate
<PAGE>
its authority regarding the selection of Participants and granting of Awards
under the Plan. The Committee shall report all actions taken by it to the
Board.
(c) Program Guidelines. Without limiting the foregoing, Awards shall be
determined and administered pursuant to Program Guidelines, not inconsistent
with the provisions of this Plan, established from time to time by the Committee
considering recommendations made by Harveys Chief Executive Officer and subject
to confirmation by the Board. Program Guidelines shall be designed to further
the purpose of the Plan and to ensure the administration of an effective and
competitive incentive program based on Harveys needs and requirements from time
to time.
(d) Limitation of Liability. Neither the Board nor the Committee, nor any
member of either or other employees designated to help administer the Plan,
shall be liable for any act, omission, interpretation, construction or
determination made in good faith in connection with the Plan and the members of
the Board and the Committee and such other employees shall be entitled to
indemnification and reimbursement by Harveys in respect of any claim, loss,
damage or expense (including, without limitation, attorney's fees) arising or
resulting therefrom to the fullest extent permitted by law and/or any directors
and officer's liability insurance coverage which may be in effect from time to
time.
4. COMMON SHARES SUBJECT TO AWARD. The maximum aggregate number of shares
of Common Stock with respect to which Awards may be granted from time to time
under the Plan to any or all Participants is 500,000 shares, subject to
adjustment as provided in Section 15 of the Plan. The Common Stock issued under
the Plan may be either previously authorized but unissued shares or treasury
shares acquired by Harveys. In the event that any Award expires, lapses, is
forfeited, is settled in cash in lieu of Common Stock or otherwise terminates,
any shares of Common Stock allocable to the terminated portion of such Award may
again be made subject to an Award under the Plan; provided, however, if a
Participant has received the benefits of ownership with respect to the
securities underlying an Award, including without limitation, the right to
receive dividends or Dividend Equivalents, such shares may not again be made
subject to an Award under the Plan.
5. ELIGIBILITY. Persons eligible to receive Awards under the Plan are
limited to those officers and other key employees of Harveys and its
Subsidiaries who are determined to be in positions in which their decisions,
actions and counsel significantly impact the profitability and success of
Harveys.
6. FORM OF AWARDS. Awards may be made from time to time under the Plan and
pursuant to established Program Guidelines in the form of Stock Options, Stock
Appreciation Rights, Restricted Stock, Performance Awards, Dividend Equivalents
or such other forms as the Committee may in its discretion deem appropriate,
including, without limitation, any combination of the above. Awards shall be
evidenced by written Award Agreements.
7. STOCK OPTIONS. Options for the purchase of Common Stock of Harveys shall be
evidenced by Agreements in such form and not inconsistent with the Plan as the
Committee shall approve from time to time, which Agreements shall contain in
substance the following terms and conditions:
(a) TYPE OF OPTION. Options granted under the Plan may be in the form
of Incentive Stock Options, Non-Qualified Stock Options or Reload Stock Options
(sometimes referred to collectively as Option(s)', and each Option Agreement
shall identify the type of Option represented thereby.
(b) OPTION PRICE. The exercise price per share of the Common Stock
subject to an Option shall be determined by the Committee, including without
<PAGE>
limitation, a determination based on a formula determined by the Committee;
provided, however, that the exercise price of an Incentive Stock Option or a
Reload Stock Option shall not be less than one hundred percent of the Fair
Market Value of the Common Stock on the date of grant of the Option , and,
provided, further that no exercise price shall be less than the par value of
Common Stock.
(c) EXERCISE TERM. Each Option Agreement shall state the period or periods
of time within which the Option may be exercised, in whole or in part, which
shall be such period or periods of time as may be determined by the Committee,
provided that no Option shall be exercisable prior to six months nor after ten
years from the date of grant thereof. The Committee may, in its discretion,
provide in the Agreement circumstances under which the Option shall become
immediately exercisable, and may, notwithstanding the foregoing, accelerate the
exercise of any outstanding Option at any time.
(d) PAYMENT FOR SHARES. Options may be exercised, in whole or in part, by
giving written notice to Harveys in such form as may be prescribed for such
purpose. The purchase price of the shares with respect to which an Option is
exercised shall be payable in full at the time of exercise in cash, by certified
check, bank draft or money order payable to the order of Harveys or, if
permitted by the Committee and applicable law, by delivery of, alone or in
conjunction with a partial cash or instrument payment (i) a fully secured
promissory note or notes, (ii) shares of Common Stock already owned by the
Participant for at least six (6) months, or, (iii) some other form of payment
acceptable to the Committee. The Committee may also permit Participants to
simultaneously exercise Options and sell the shares of Common Stock thereby
acquired, pursuant to a cashless exercise' arrangement or program, selected by
and approved in all respects in advance by the Committee. Payment instruments
shall be received by Harveys subject to collection.
(e) RIGHTS UPON TERMINATION OF EMPLOYMENT. In the event that a
Participant ceases to be an employee of Harveys or its Subsidiaries for any
reason other than death, Disability, Retirement or termination by Harveys for
Cause, the Participant shall have the right to exercise an Option during its
term within a period of ninety days after such termination to the extent that
the Option was exercisable at the time employment was terminated, or within such
other period, and subject to such terms and conditions, as may be prescribed by
the Committee. In the event that a Participant ceases to be an employee of
Harveys or its Subsidiaries due to death, Disability or Retirement, the
Participant or his or her successor shall have the right to exercise the Option
during its term within a period of one year after such termination to the extent
that the Option was exercisable at the time employment was terminated, or within
such other period, and subject to such terms and conditions, as may be
prescribed by the Committee. In the event of a Participant's termination by
Harveys for Cause, all unexercised Options shall be forfeited and canceled.
(f) NON-TRANSFERABILITY. No right or interest of a Participant in any
Award shall be pledged, encumbered or hypothecated to or in favor of any party,
or shall be subject to any lien, obligation, or liability of such Participant to
any party. Unless otherwise determined by the Committee (subject to the
requirements of Section 7(i) below, no Award shall be assignable or transable by
a Participant otherwise than by will or the laws of descent and distribution
(except to the Corporation under the terms of the Plan); provided, however, that
a Participant may, in accordance with Section 14 of the Plan, designate a
beneficiary or beneficiaries to exercise the rights of the Participant, and to
receive any distribution, with respect to any Award, upon the death of the
Participant. A beneficiary, guardian, legal representative, or other person
claiming any rights under the Plan from or through any Participant shall be
subject to all terms and conditions of the Plan and any Agreement applicable to
such Participant, except to the extent the Plan and such Award Agreement
otherwise provide with respect to such person, and to any additional
restrictions deemed necessary or appropriate by the Committee.
<PAGE>
(g) RELOAD STOCK OPTIONS. The Committee may, in its sole discretion,
provide in an Option Agreement relative to a Non-Qualified Stock Option that if
a Participant delivers shares of Harveys Common Stock already owned by the
Participant for at least six months in full or partial payment of the exercise
price, the Participant shall automatically and immediately be granted a Reload
Stock Option to purchase that number of shares of Common Stock delivered by the
Participant to Harveys, on such terms as the Committee may prescribe not
inconsistent with the Plan.
(h) INCENTIVE STOCK OPTIONS. In the case of an Incentive Stock Option,
each Option Agreement shall contain such other terms, conditions and provisions
as the Committee determines necessary or desirable in order to qualify such
option as a tax-favored Option (within the meaning of Section 422 of the Code,
or any amendment thereof, substitute therefore, or regulation thereunder,
including without limitation, the following: (i) The aggregate Fair Market Value
(determined as of the time the Option is granted) of the Common Stock with
respect to which the Incentive Stock Options are exercisable for the first time
in any calendar year (under all plans of Harveys and its Subsidiaries) shall not
exceed $100,000; and, (ii) No Incentive Stock Options shall be granted to any
individual if at the time the Option is granted the individual owns stock
possessing more than ten percent of the total combined voting power of all
classes of stock of Harveys or its Subsidiaries unless at the time such Options
are granted the exercise price is at least 110 percent of the Fair Market Value
of the Common Stock subject to Option and such Incentive Stock Option by its
terms is not exercisable after five years from the date of grant.
(i) DERIVATIVE SECURITIES. Awards which constitute derivative securities
(including any option, Stock Appreciation Right, or similar right; shall not be
transferable by a Participant except by will or the laws of descent and
distribution (except pursuant to a beneficiary designation authorized under
Section 7(f) above; or, if then permitted under Rule 16b-3, pursuant to a
qualified or other domestic relations order as defined under the Code or Title I
of the Employee Retirement Income Security Act of 1974, as amended, or the rules
thereunder, and, in the case of an Incentive Stock Option or, if then required
by Rule 16b-3, any other derivative security granted under the Plan, shall be
exercisable during the lifetime of a Participant only by such Participant or his
legal representative.
8. STOCK APPRECIATION RIGHTS. Stock Appreciation Rights shall be evidenced
by Agreements in such form and not inconsistent with this Plan as the Committee
shall approve from time to time, which Agreements shall contain in substance the
following terms and conditions:
(a) AWARD. Stock Appreciation Rights shall entitle a Participant,
subject to such terms and conditions prescribed by the Committee, to receive
upon exercise thereof all or a portion of the excess of: (i) the Fair Market
Value of a specified number of shares of Common Stock at the time of exercise,
above; (ii) a specified base value which shall not be less than 100 percent of
the Fair Market Value of Harveys Common Stock at the time the right is granted,
or, if connected with a previously issued Option, not less than 100 percent of
the Fair Market Value of Harveys Common Stock at the time such Option was
granted. Stock Appreciation Rights may be granted in connection with a
previously or contemporaneously granted Option, or independent of any Option.
(b) EXERCISE TERM. Each Agreement shall state the period or periods of
time within which the Stock Appreciation Right may be exercised, in whole or in
part, which shall be such period or periods of time as may be determined by the
Committee, provided that no Stock Appreciation Right shall be exercisable prior
to six months nor after ten years from the date of grant thereof. The Committee
may, in its discretion, provide in the Agreement circumstances under which the
Stock Appreciation Right shall become immediately exercisable, and may,
notwithstanding the foregoing, accelerate the exercise of any Stock Appreciation
Right at any time.
<PAGE>
(c) RIGHTS UPON TERMINATION OF EMPLOYMENT. In the event that a
Participant ceases to be an employee of Harveys or its Subsidiaries for any
reason other than death, Disability, Retirement or termination by Harveys for
Cause, the Participant shall have the right to exercise a Stock Appreciation
Right during its term within a period of ninety days after such termination to
the extent that the Stock Appreciation Right was exercisable at the time
employment was terminated, or within such other period, and subject to such
terms and conditions, as may be prescribed by the Committee. In the event that
a Participant ceases to be an employee of Harveys or its Subsidiaries due to
death, Disability or Retirement, the Participant or his or her successor shall
have the right to exercise a Stock Appreciation Right during its term within a
period of one year after such termination to the extent that the Stock
Appreciation Right was exercisable at the time employment was terminated, or
within such other period, and subject to such terms and conditions, as may be
prescribed by the Committee. In the event of a Participant's termination by
Harveys for Cause, all unexercised Stock Appreciation Rights shall be forfeited
and canceled.
(d) PAYMENT. Upon exercise of a Stock Appreciation Right, payment shall
be made in cash, in the form of Common Stock at Fair Market Value on the date of
exercise, or in a combination thereof, as the Committee may determine.
(e) OTHER TERMS. Stock Appreciation Rights shall be granted in such
manner and such form, and subject to such additional terms and conditions as the
Committee in its sole discretion deems necessary or desirable in order to comply
with any regulation or to further the purpose of the Plan, including without
limitation to avoid insider trading liability or comply with other requirements
under the Securities Exchange Act of 1934, as amended.
(f) STOCK OPTIONS AND SARS. Notwithstanding anything to the contrary in
Sections 7 or 8 of the Plan and subject to (i) adjustment under Section 15 of
the Plan and (ii) the Plan maximum under Section 4, all Participants in the
aggregate may not receive in any calendar year Awards of options and Stock
Appreciation Rights, in the aggregate, exceeding 200,000 underlying Shares.
Each individual Participant may not receive in any calendar year Awards of
options or Stock Appreciation Rights exceeding 66,667 underlying Shares.
9. RESTRICTED STOCK AWARDS. Restricted Stock awards under the Plan shall
consist of shares of Common Stock free of any purchase price or in consideration
of such purchase price established by the Committee, restricted against
transfer, subject to forfeiture, and subject to any other terms and conditions
intended to further the purpose of the Plan, and shall be evidenced by
Restricted Stock Agreements in such form and not inconsistent with this Plan as
the Committee shall approve from time to time, which Agreements shall contain in
substance the following terms and conditions:
(a) RESTRICTION PERIOD. Restricted Stock awarded pursuant to this Plan
shall be subject to such terms, conditions, and restrictions, including without
limitation prohibitions against transfer, substantial risks of forfeiture and
attainment of performance objectives, and for such period or periods as shall be
determined by the Committee. The Committee may, in its sole discretion, provide
in the Agreement circumstances under which the Restricted Stock shall become
immediately transferable, and may, notwithstanding the foregoing, accelerate the
expiration of the restriction period imposed on any Restricted Stock at any
time.
(b) RESTRICTIONS ON TRANSFER. Restricted Stock and the right to vote
such stock and to receive dividends thereon, may not be sold, assigned,
transferred, exchanged, pledged, hypothecated, or otherwise encumbered, except
as herein provided, during the restriction period applicable to such shares.
Notwithstanding the foregoing, and except as otherwise provided in the Plan, the
Participant shall have all the other rights of a stockholder including, but not
limited to, the right to receive dividends and the right to vote such stock.
<PAGE>
(c) CERTIFICATES. Each certificate issued in respect of Restricted Stock
awarded to a Participant shall be held in escrow by Harveys or its designee and
shall bear the following legend:
This certificate and the shares of stock represented hereby are
subject to the terms and conditions (including, without limitation,
forfeiture provisions and restrictions upon transfer) contained in the
Harveys Casino Resorts 1996 Omnibus Incentive Plan and an Award
Agreement entered into between the registered owner hereof and Harveys
Casino Resorts. Release from such terms and conditions shall obtain
only in accordance with the provisions of the Plan and relevant Award
Agreement, a copy of each of which is on file in the office of the
Secretary of Harveys Casino Resorts.'
(d) LAPSE OF RESTRICTIONS. The Agreement shall specify the terms and
conditions upon which any restrictions shall lapse, as determined by the
Committee. The Committee may, notwithstanding the foregoing, accelerate the
lapse of restrictions at any time. Upon the lapse of restrictions, shares of
Common Stock free of any restrictive legend shall be issued to the Participant
or his or her legal representative.
(e) RIGHTS UPON TERMINATION OF EMPLOYMENT. In the event of a
Participant's termination of employment with Harveys or its Subsidiaries prior
to the lapse of restrictions as provided in the relevant award Agreement, or as
otherwise determined pursuant to the provisions of the preceding sub-paragraph
(d), all shares of Restricted Stock as to which there still remains non-lapsed
restrictions shall be forfeited by the Participant without payment of any
consideration by Harveys, and neither the Participant nor any successors, heirs,
assigns or personal representatives of the Participant shall thereafter have
further rights or interest in such shares or certificates.
10. PERFORMANCE AWARDS. Performance Awards shall entitle Participants to future
payments subject to requirements for continued employment and contingent upon
the level of achievement of pre-established long-term performance objectives and
shall be evidenced by written Performance Award Agreements in such form and not
inconsistent with this Plan as the Committee shall approve from time to time,
which Agreements shall contain in substance the following terms and conditions:
(a) AWARD LEVELS. Individual award levels shall reflect (i) the relative
ability of each Participant to impact the long-term performance and success of
Harveys and its Subsidiaries, and (ii) competitive practice.
(b) PERFORMANCE PERIOD. The Committee shall establish with respect to each
Performance Award a performance period of not less than two years nor more than
five years.
(c) PERFORMANCE TARGETS. A range of performance targets incorporating
specified threshold and maximum levels shall be established with respect to each
Performance Award. Recipients of Performance Awards shall be entitled to
payment relative to all or a portion of Performance Awards based on the level of
results achieved between threshold and maximum targets. No payment shall be
made if established thresholds are not achieved.
(d) PERFORMANCE MEASURE. Until otherwise determined by the Committee,
performance targets shall relate to corporate, subsidiary, division or business
unit performance and may be established in terms of return on equity, return on
assets, return on capital employed, net income, market price per share, cash
flow, earnings per share, ratios of net income or cash flow to equity or
assets. Multiple targets may be used and may have the same or different
weighting, and may relate to absolute performance or relative performance
measured against other companies or businesses. Once established, performance
targets shall not be changed relative to the current performance period.
<PAGE>
(e) PAYMENT. Following the conclusion of each performance period, the
Committee shall determine and certify the extent to which established
performance targets have been attained, and any other terms and conditions
satisfied, for such period. The Committee shall determine what, if any, payment
is due relative to a Performance Award and whether such payment shall be made in
cash, Common Stock, or a combination thereof. Payment shall be made in a lump
sum or installments commencing as soon as practicable following the end of a
performance period, unless deferred subject to such terms and conditions and in
such form as may be prescribed by the Committee for such purpose.
(f) RIGHTS UPON TERMINATION OF EMPLOYMENT. In the event that a
Participant ceases to be employed by Harveys or a Subsidiary prior to the end of
a performance period by reason of death or Disability, any Performance Award,
to the extent earned under the applicable performance targets, shall be payable
following the end of the performance period pursuant to the provisions of the
Plan on a pro-rated basis according to the portion of the full performance
period the Participant was employed by Harveys or a Subsidiary. Upon any other
termination of employment, participation shall terminate forthwith and all
outstanding Performance Awards shall be canceled.
(g) PERFORMANCE AWARDS. Notwithstanding anything to the contrary in this
Section 10, Performance Awards subject to performance criteria are intended to
be qualified performance-based compensation' within the meaning of Section
162(m) of the Code and shall be paid solely on account of the attainment of one
or more preestablished, objective performance goals within the meaning of
Section 162(m) and the regulations thereunder. The payout of any such Award to
a Participant subject to Section 162(m) of the Code may be reduced, but not
increased, at the discretion of the Committee.
(h) MAXIMUM YEARLY AWARDS. Subject to adjustment under Section 15 and
subject to the Plan maximum under Section 4, all Participants in the aggregate
may not receive in any calendar year stock-based Performance Awards exceeding,
in the aggregate, 200,000 underlying shares of Common Stock. The maximum
amount payable in respect of such Awards in any calendar year may not exceed
400,000 shares of Common Stock (or the then equivalent fair market value
thereof) in the aggregate to all Participants and 133,333 Shares (or the then
equivalent fair market value thereof) in the case of any individual
Participant. In respect of cash-based Performance Awards, the aggregate amount
of compensation to be paid to any Participant for such Awards granted in any
calendar year shall not exceed $775,000.
11. DIVIDEND EQUIVALENTS. Dividend Equivalent Awards shall entitle
Participants to payments in an amount equal to the amount of cash or stock
dividends declared on shares of Common Stock subject to Dividend Equivalent
Awards during the period the Awards are outstanding for purposes of the Plan.
The Committee shall establish such rules and procedures governing the crediting
of Dividend Equivalents, including, without limitation, the amount, timing, form
of payment and payment contingencies and/or restrictions on such Awards as it
deems appropriate or necessary.
12. LOANS AND SUPPLEMENTAL CASH. Subject to applicable law and to further the
purpose of the Plan, the Committee may provide, pursuant to the Plan and any
Program Guidelines established for such purpose, supplemental cash payments or
loans to Participants in connection with any or any part of an Award under the
Plan.
13. VOLUNTARY DEFERRAL. Program Guidelines may be established which permit a
Participant to elect to defer receipt of any payment of cash or any delivery of
shares of Common Stock that would otherwise be due to such Participant by virtue
of the exercise, earn out or settlement of any Award made under the Plan. If
any such election is permitted, rules and procedures for such deferrals shall be
established, including, without limitation, the payment or crediting of
reasonable interest or dividend equivalents.
<PAGE>
14. DESIGNATION OF BENEFICIARY. Each Participant to whom an Award has been
made under the Plan may designate a beneficiary or beneficiaries to exercise any
option or to receive any payment which under the terms of the Plan and the
relevant Award Agreement may become exercisable or payable on or after the
Participant's death. At any time, and from time to time, any such designation
may be changed or canceled by the Participant without the consent of any such
beneficiary. Any such designation, change or cancellation must be on a form
provided for that purpose by the Committee and shall not be effective until
received by Harveys. If no beneficiary has been designated, or if the
designated beneficiaries have predeceased the Participant, the beneficiary shall
be the Participant's estate. If the Participant designates more than one
beneficiary, any payments under the Plan to such beneficiaries shall be made in
equal shares unless the Participant has expressly designated otherwise.
15. RECAPITALIZATION ADJUSTMENTS. In the event of any change in the outstanding
Common Stock, including, without limitation, by reason of a stock dividend or
distribution, stock split, reverse stock split, recapitalization, consolidation,
subdivision, split-up, spin-off, split-off, combination, exchange of shares or
the like, the Board shall adjust the number of shares of Common Stock which may
be issued under the Plan and shall provide for an equitable adjustment of any
outstanding Awards or shares issuable pursuant to outstanding Awards in order
to preserve the value, rights and benefits of such Awards, including, without
limitation, the aggregate number of shares of Common Stock for which Awards may
be granted under the Plan, the number of shares covered by outstanding Awards
and the exercise price or other price per share of Common Stock in respect of
outstanding Awards.
16. CERTAIN MERGERS.
(a) Harveys as Surviving Corporation. If Harveys enters into or is
involved in any merger, reorganization or other business combination with any
person or entity (such merger, reorganization or other business combination to
be referred to herein as a Merger Event') and as a result of any such Merger
Event Harveys will be or is the surviving corporation, a Participant shall be
entitled, as of the date of the execution of the agreement evidencing the Merger
event (the Execution Date') and with respect to both exercisable and
non-exercisable Options and/or Stock Appreciation Rights (but only to the
extent not previously exercised), to receive substitute stock options and/or
stock appreciation rights in respect of the shares of the surviving corporation
on such terms and conditions, as to the number of shares, pricing and otherwise,
which shall substantially preserve the value, rights and benefits of any
affected Options or Stock Appreciation Rights granted hereunder as of the date
of the consummation of the Merger Event. Notwithstanding anything to the
contrary in this Section, if any Merger Event occurs, Harveys shall have the
right, but not the obligation, to pay to each affected Participant an amount in
cash or certified check equal to the excess of the Fair Market Value of the
Common Stock underlying any affected unexercised Options or Stock Appreciation
Rights as of the Execution Date (whether then exercisable or not) over the
aggregate exercise price of such unexercised Options and/or Stock Appreciation
Rights, as the case may be.
(b) HARVEYS NOT THE SURVIVING CORPORATION. If, in the case of a Merger
Event in which Harveys will not be, or is not, the surviving corporation, and
Harveys determines not to make the cash or certified check payment described in
Section 16(a) of the Plan, Harveys shall compel and obligate, as a condition of
the consummation of the Merger Event, the surviving or resulting corporation
and/or the other party to the Merger Event, as necessary, or any parent,
subsidiary or acquiring corporation thereof, to grant, with respect to both
exercisable and non-exercisable Options and/or Stock Appreciation Rights (but
only to the extent not previously exercised), substitute options or stock
appreciation rights in respect of the shares of common or other capital stock of
such surviving or resulting corporation on such terms and conditions, as to the
number of shares, pricing and otherwise, which shall substantially preserve the
<PAGE>
value, rights and benefits of any affected Options and/or Stock Appreciation
Rights previously granted hereunder as of the date of the consummation of the
Merger Event.
(c) CANCELLATION OF PREVIOUS AWARDS. Upon receipt by an affected
Participant of any such cash, certified check, or substitute options or stock
appreciation rights as a result of any such Merger Event, such Participant's
affected Options and/or Stock Appreciation Rights for which such cash, certified
check or substitute awards was received shall be thereupon canceled without the
need for obtaining the consent of any such affected Participant.
(d) ADMINISTRATION. The foregoing adjustments and the manner of
application of the foregoing provisions, including, without limitation, the
issuance of any substitute stock options and/or stock appreciation rights, shall
be determined in good faith by the Committee in its sole discretion. Any such
adjustment may provide for the elimination of fractional shares.
17. CHANGE OF CONTROL.
(a) ACCELERATION OF AWARDS. Anything in the Plan to the contrary
notwithstanding, if a Change of Control of Harveys occurs (i) all Options and/or
Stock Appreciation Rights then unexercised and outstanding shall become fully
vested and exercisable as of the date of the Change of Control, (ii) all
restrictions, terms and conditions applicable to all Restricted Stock then
outstanding shall be deemed lapsed and satisfied as of the date of the Change of
Control, and (iii) the performance period shall be deemed completed, all
performance goals shall be deemed attained at the highest levels and all
Performance Awards shall be deemed to have been fully earned as of the date of
the Change of Control. The immediately preceding sentence shall apply to only
those Participants (A) who are employed by Harveys and/or one of its
Subsidiaries as of the date of the Change of Control, or (B) to whom Section
17(c) below is applicable.
(b) PAYMENT AFTER CHANGE OF CONTROL. Notwithstanding anything to the
contrary in the Plan, within thirty (30) days after a Change of Control occurs,
(i) the holder of an Award of Restricted Stock vested under Section 17(a)(ii)
above shall receive a new certificate for such shares without the legend set
forth in Section 9 of the Plan (and, in the case only of a Change of Control
under Section 17(d)(i) of the Plan, such holder shall have the right, but not
the obligation, to elect, within ten (10) business days after the Participant
has actual or constructive knowledge of the occurrence of such Change of
Control, to require Harveys to purchase such shares from the Participant at
their then Fair Market Value, (ii) the holder of Performance Awards shall
receive payment of the value of such grants in cash at the highest levels, and
(iii) in the case only of a Change of Control under Section 17(d)(i) of the
Plan, the holders of any Options and/or Stock Appreciation Rights shall have
the right, but not the obligation, to elect, within ten (10) business days after
the Participant has actual or constructive knowledge of the occurrence of such
Change of Control, to require Harveys to purchase such Options and/or Stock
Appreciation Rights from the Participant for an aggregate amount equal to the
then aggregate Fair Market Value of the Common Stock underlying such Awards
tendered, less the aggregate exercise price of such tendered Awards.
(c) TERMINATION AS A RESULT OF A CHANGE OF CONTROL. Anything in the Plan
to the contrary notwithstanding, if a Change of Control occurs and if the
Participant's employment is terminated before such Change of Control and it is
reasonably demonstrated by the Participant that such employment termination (i)
was at the request, directly or indirectly, of a third party who has taken steps
reasonably calculated to effect the Change of Control, or (ii) otherwise arose
in connection with or in anticipation of the Change of Control, then for
purposes of this Section 17, the Change of Control shall be deemed to have
occurred immediately prior to such Participant's employment termination (for all
purposes other than those set forth in Section 17(b)(iii) of the Plan).
<PAGE>
(d) Change of Control. For the purpose of this Plan, Change of Control'
shall mean:
(i) The acquisition by an individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act),
other than Harveys or any person who on the effective date of this Plan is an
officer or director of Harveys, of 25% or more of either (A) the shares of the
Common Stock, or (B) the combined voting power of the voting securities of
Harveys entitled to vote generally in the election of directors (the voting
Securities'); provided, however, that the following acquisitions shall not
constitute a Change of Control: (x) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by Harveys or any Subsidiary, or
(y) any acquisition by any corporation if, immediately following such
acquisition, more than 80% of the outstanding shares of common stock of such
corporation and the combined voting power of the then outstanding voting
securities of such corporation (entitled to vote generally in the election of
directors), is beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who, immediately prior to such
acquisition, were the beneficial owners of the Common Stock and the Voting
Securities in substantially the same proportions, respectively, as their
ownership, immediately prior to such acquisition, of the Common Stock and Voting
Securities; or
(ii) Individuals who, as of the effective date of the Plan, constitute
the Board (the Incumbent Board') cease thereafter for any reason to constitute
at least a majority of the Board; provided, however, that any individual
becoming a director subsequent to the effective date of the Plan whose election,
or nomination for election by Harveys shareholders, was approved by at least a
majority of the directors then serving and comprising the Incumbent Board shall
be considered as though such individual were a member of the Incumbent Board,
but excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of either an actual or threatened election contest (as
such terms are used in Rule 14a-11 of Regulations 14A promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies or consents;
or
(iii) Approval by the shareholders of Harveys of a reorganization,
merger or consolidation, other than a reorganization, merger of consolidation
with respect to which all or substantially all of the individuals and entities
who were the beneficial owners, immediately prior to such reorganization, merger
or consolidation, of the Common Stock and Voting Securities beneficially own,
directly or indirectly, immediately after such reorganization, merger or
consolidation more than 80% of the then outstanding common stock and voting
securities (entitled to vote generally in the election of directors) of the
corporation resulting from such reorganization, merger or consolidation in
substantially the same proportions as their respective ownership, immediately
prior to such reorganization, merger or consolidation, of the Common Stock and
the Voting Securities; or
(iv) Approval by the shareholders of Harveys of (A) a complete
liquidation or substantial dissolution of Harveys, or (B) the sale or other
disposition of all or substantially all of the assets of Harveys, other than to
a Subsidiary, wholly-owned, directly or indirectly, by Harveys.
18. TAX WITHHOLDING. Harveys shall have the right to deduct from any payment
or settlement under the Plan, including, without limitation, the exercise of any
Option, Stock Appreciation Right or Dividend Equivalent, or the delivery,
transfer or vesting of any Common Stock or Restricted Stock, any federal, state,
local or other taxes of any kind which the Committee, in its sole discretion,
deems necessary to be withheld to comply with the Code and/or any other
applicable law, rule or regulation. If the Committee in its sole discretion,
permits shares of Common Stock to be used to satisfy any such tax withholding,
<PAGE>
such Common Stock shall be valued based on the Fair Market Value of such stock
as of the date the tax withholding is required to be made, such date to be
determined by the Committee. The Committee may establish rules limiting the use
of Common Stock to meet withholding requirements by Participants who are subject
to Section 16 of the Exchange Act.
19. RIGHT TO TERMINATE EMPLOYMENT. Neither the adoption of the Plan, the
granting of any Award, nor the execution of any Award Agreement, shall confer
upon any employee of Harveys or any Subsidiary any right to continued employment
with Harveys or any subsidiary, as the case may be, nor shall it interfere in
any way with the right, if any, of Harveys or any Subsidiary to terminate the
employment of any employee at any time for any reason.
20. UNFUNDED PLAN. The Plan shall be unfunded and Harveys shall not be required
to segregate any assets in connection with any Awards under the Plan. Any
liability of Harveys to any person with respect to any Award under the Plan or
any Award Agreement shall be based solely upon the contractual obligations that
may be created as a result of the Plan or any such Award or Agreement. No such
obligation of Harveys shall be deemed to be secured by any pledge of,
encumbrance on, or other interest in, any property or asset of Harveys or any
Subsidiary. Nothing contained in the Plan or any Award Agreement shall be
construed as creating in respect of any Participant (or beneficiary thereof or
any other person) any equity or other interest of any kind in any assets of
Harveys or any Subsidiary or creating a trust (except as provided in Section 21)
or a fiduciary relationship of any kind between Harveys, any Subsidiary and/or
any such Participant, any beneficiary thereof or any other person.
21. PAYMENTS TO A TRUST. The Committee may cause to be established a
grantor trust agreement or several grantor trust agreements or similar
arrangements from which the Committee may make payments of amounts due or to
become due to any Participants under the Plan.
22. OTHER PLANS. Participation in this Plan shall not affect a Participant's
eligibility to participate in any other compensation or benefit plan of Harveys
or its Subsidiaries and any Awards made pursuant to this Plan shall not be used
in determining any benefits or payments provided under any other plan unless
specifically provided to the contrary.
23. LISTING, REGISTRATION AND OTHER LEGAL COMPLIANCE. No Awards or shares of
Common Stock shall be required to be issued or granted under the Plan unless
legal counsel for Harveys shall be satisfied that such issuance or grant will be
in compliance with all applicable federal and state securities laws and
regulations and any other applicable laws or regulations. The Committee may
require, as a condition of any payment or share issuance, that certain
agreements, undertakings, representations, certificates, and/or information as
the Committee may deem necessary or advisable, be executed or provided to
Harveys to assure compliance with all such applicable laws or regulations.
Certificates for shares of Restricted Shares and/or Common Stock delivered under
the Plan may be subject to such stock transfer orders and such other
restrictions as the Committee may deem advisable under the rules, regulations,
or other requirements of the Securities and Exchange Commission, or any stock
exchange upon which the Common Stock is then listed, and any applicable federal
or state securities law. In addition, if, at any time specified herein (or in
any Award Agreement or otherwise) for, (i) the making of any Award, or the
making of any determination, (ii) the issuance or other distribution of
Restricted Shares and/or Common Stock, or (iii) the payment of amounts to or
through a Participant with respect to any Award, any law, rule, regulation or
other requirement of any governmental authority or agency shall require either
Harveys, any Subsidiary or any Participant (or any estate, designated
beneficiary or other legal representative thereof) to take any action in
connection with any such determination, any such shares to be issued or
distributed, any such payment, or the making of any such determination, as the
<PAGE>
case may be, shall be deferred until such required action is taken. With
respect to persons subject to Section 16 of the Exchange Act, transactions under
the Plan are intended to comply with all applicable conditions of SEC Rule
16b-3. To the extent any provision of the Plan or any action by the
administrators of the Plan fails to so comply with such rule, it shall be deemed
null and void, to the extent permitted by law and deemed advisable by the
Committee.
24. AMENDMENT AND TERMINATION.
(a) In General. The Board may suspend or terminate the Plan (or any
portion thereof) at any time and may amend the Plan at any time and from time to
time in such respects as the Board may deem advisable to insure that any and all
Awards conform to or otherwise reflect any change in applicable laws or
regulations, or to permit Harveys or the Participants to benefit from any change
in applicable laws or regulations, or in any other respect the Board may deem to
be in the best interests of Harveys or any Subsidiary; provided, however, that
no such amendment to the Plan shall, without shareholder approval (i) except as
provided in Section 15 of the Plan, materially increase the number of shares of
Common Stock which may be issued under the Plan, (ii) materially modify the
requirements as to eligibility for participation in the Plan, (iii) materially
increase the benefits accruing to Participants under the Plan (other than
amendments which would not require shareholder approval under SEC Rule 16b-3),
or (iv) extend the termination date of the Plan. No such amendment, suspension
or termination shall materially adversely affect the rights of any Participant
under any outstanding Awards.
(b) OUTSTANDING AWARDS. The Committee may, in its discretion, amend or
modify at any time and from time to time, and not inconsistent with this Plan,
the terms and provisions of any outstanding Award; provided, however, that no
such amendment or modification shall materially adversely affect the rights of
any Participant without the consent of such Participant.
25. GOVERNING LAW. The Plan and all actions taken thereunder shall be governed
by and construed in accordance with the laws of the State of Nevada, without
reference to the principles of conflict of laws thereof. Any titles and
headings herein are for reference purposes only, and in no way shall limit,
define or otherwise affect the meaning, construction or interpretation of any
provisions of the Plan.
26. EFFECTIVE DATE AND TERM. The Plan shall be effective upon its adoption by
the Board, subject to (i) the approval of the Plan by Harveys shareholders in
accordance with SEC Rule 16b-3 and Section 422 of the Code; and (ii) all
necessary approvals of the Gaming Authorities. The Plan shall remain in effect
until all Awards made thereunder have been satisfied by the issuance of Common
Stock or the payment of cash; provided, that no further Award shall be granted
after ten years from the date the Plan is first adopted.
IN WITNESS WHEREOF, this Plan is adopted by Harveys on this 22nd day of
February, 1996.
HARVEYS CASINO RESORTS
By:/s/ Thomas M. Yturbide
Title: Chairman of the Board
<PAGE>
Exhibit 5
<PAGE>
<PAGE> Exhibit 5
[Letterhead of Scarpello & Alling, Ltd.]
July 26, 1996
Harveys Casino Resorts
P.O. Box 128
Highway 50 & Stateline Avenue
Lake Tahoe, Nevada 89449
Re: 1996 Omnibus Incentive Plan/ Form S-8
under the Securities Act of 1933
Ladies and Gentlemen:
We have acted as counsel for Harveys Casino Resorts (the Company') in
connection with the registration by the Company under the Securities Act of
1933, as amended (the Securities Act'), of 500,000 shares of Common Stock, par
value $.01 per share, of the Company (the Common Stock') issuable under the
Company's 1996 Omnibus Incentive Plan (the Plan'), under a Registration
Statement on Form S-8 (the Registration Statement') to be filed with the
Securities and Exchange Commission.
We have examined originals, or copies certified to our satisfaction, of all such
corporate records of the Company, agreements and other instruments, certificates
of public officials and officers and representatives of the Company and such
other documents as we have deemed necessary as a basis for the opinions
hereafter expressed.
Based on the foregoing and having regard to legal considerations that we deem
relevant, we are of the opinion that, when said shares of Common Stock have been
registered under the Securities Act and when the Company has received the
consideration to be received for said shares in accordance with the provisions
of the Plan and said shares of Common Stock have been issued by the Company as
provided under the Plan, said shares of Common Stock will be duly authorized,
validly issued and outstanding, fully paid and nonassessable, with no personal
liability attaching to the ownership thereof.
We hereby consent to the inclusion of this opinion in the Registration Statement
and to the reference to our firm under the caption "Interests of Named Experts
and Counsel" in Item 5 of Part II of the Registration Statement.
Very truly yours,
SCARPELLO & ALLING, LTD.
PAGE
<PAGE>
Exhibit 23.1
<PAGE>
<PAGE> Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANT
We hereby consent to the incorporation by reference in this registration
statement on Form S-8 of our report dated January 12, 1996, included in Harveys
Casino Resorts Form 10-K for the year ended November 30, 1995.
Reno, Nevada
July 25, 1996
