Amended and Restated
MONARCH CASINO & RESORT, INC.
1993 EXECUTIVE LONG TERM INCENTIVE PLAN
Amended by the Board of Directors May 14, 1997
1. Purpose
The 1993 Executive Long Term Incentive Plan (the "Plan") is intended to
promote the interest of Monarch Casino & Resort, Inc. and its subsidiaries
(collectively the "Corporation") by offering those executive officers and key
employees of the Corporation who are primarily responsible for the management,
growth and success of the business of the Corporation the opportunity to
participate in a long-term incentive plan designed to reward them for their
services and to encourage them to continue in the employ of the Corporation.
2. Definitions
For all purposes of this Plan, the following terms shall have the
following meanings:
"Common Stock" means Monarch Casino & Resort common stock, $.01 par
value.
"ISO" means incentive stock options qualified under Section 422A of the
Internal Revenue Code of 1954, as amended.
"Monarch" means Monarch Casino & Resort, Inc.
"Non-qualified Options" means stock options not qualified under Section
422A of the Internal Revenue Code of 1986, as amended.
"Restricted Shares" means shares of Common Stock which have not been
registered under federal securities law.
"Subsidiary" means any company of which Monarch Casino & Resort, Inc.
owns, directly or indirectly, the majority of the combined voting power of all
classes of stock.
3. Administration
The Plan shall be administered by a Committee (the "Committee") of not
less than two directors of Monarch selected by, and serving at the pleasure
of, Monarch's Board of Directors ("Monarch Board"). Except for Directors who
are ineligible to participate under this Plan, directors who are also
employees of Monarch or any Subsidiary, or who have been such employees within
one year, may not serve on the Committee.
Initially, the Subsidiary will recommend to the Committee persons to whom
awards may be granted. The Committee then shall have the authority, subject
to the terms of the Plan, to determine, based upon recommendations from the
Subsidiaries, the persons to whom awards shall be granted ("Participants"),
the number of shares covered by each award, the time or times at which awards
shall be granted, the timing of when awards shall vest, and the terms and
provisions of the instruments by which awards shall be evidenced; and to
interpret the Plan and make all determinations necessary or advisable for its
administration. The Committee shall notify the Monarch Board of all decisions
concerning awards granted to Participants under the Plan, the interpretation
thereof, and determinations concerning its administration.
4. Eligibility
Awards shall be granted only to employees who (a) serve as executives or
other key employees of the Corporation and (b) do not, at the time of grant,
own (within the meaning of Section 425(d) of the Code) stock possessing more
than 10% of the total combined voting power of all classes of stock of Monarch
or of any Subsidiary.
5. Stock Subject to the Plan
The stock from which awards may be granted shall be shares of Common
Stock. When Restricted Shares are vested or when options are exercised,
Monarch may either issue authorized but unissued Common Stock or Monarch, or
the Subsidiary which employs the Participant, may transfer issued Common Stock
held in its treasury. Each of the respective Boards of the Corporation will
fund the Plan to the extent so required to provide Common Stock for the
benefit of Participants employed by Monarch or the Subsidiary, respectively.
The total number of shares of Common Stock which may be granted as Restricted
Shares or stock options shall not exceed, in the aggregate, 250,000 shares in
total. Any Restricted Shares awarded and later forfeited are again subject to
award under the Plan. If an option expires, or is otherwise terminated prior
to its exercise, the shares of Common Stock covered by such an option
immediately prior to such expiration or other termination shall continue to be
available for grant under the Plan.
6. Granting of Options
The date of grant of options to Participants under the Plan will be the
date on which the options are awarded by the Committee. The grant of any
option to any Participant shall neither entitle nor disqualify such
Participant from participating in any subsequent grant of options.
7. Terms and Conditions of Options
Options shall be designated Non-qualified Options or Incentive Stock
Options qualified under Section 422A of the Internal Revenue Code of 1986, as
amended (the "Code"), and shall be evidenced by written instruments approved
by the Committee. Such instruments shall conform to the following terms and
conditions:
7.1 Option price
The option price per share for Incentive Stock Options shall be the
fair market value of the Common Stock under option on the day the option is
granted, which shall be an amount equal to the last reported sale price of the
Common Stock on such date on the NASDAQ National Market System, or such other
stock exchange on which the Common Stock may be listed from time to time. The
price for Non-qualified Options shall be an amount equal to the price of the
Common Stock under option as determined above. The option price shall be paid
(i) in cash or (ii) in Common Stock having a fair market value equal to such
option price or (iii) in a combination of cash and Common Stock. The fair
market value of Common Stock delivered to the Corporation pursuant to the
immediately preceding sentence shall be determined on the basis of the last
reported sale price of the Common Stock on the NASDAQ National Market System
on the day of exercise or, if there was no such sale price on the day of
exercise, on the day next preceding the day of exercise on which there was
such a sale.
7.2 Term and exercise of options
Unless the Committee specifies otherwise, and except as otherwise
provided in this Plan, each option shall expire on the tenth anniversary of
the date of its grant and shall be exercisable according to a vesting schedule
to be determined by the Committee. However the Committee may include in any
option instrument, initially or by amendment at any time, a provision making
any installment or installments exercisable at such earlier date, if the
Committee deems such provision to be in the interests of the Corporation or
necessary to realize the reasonable expectation of the optionee.
After becoming exercisable, each installment shall remain
exercisable until expiration or termination of the option. After becoming
exercisable an option may be exercised by the optionee from time to time, in
whole or part, up to the total number of shares with respect to which it is
then exercisable. The Committee may provide that payment of the option
exercise price may be made following delivery of the certificate for the
exercised shares.
Upon the exercise of a stock option, the purchase price will be
payable in full in cash or its equivalent in property acceptable to Monarch or
the Subsidiary which employs the Participant. In the discretion of the
Subsidiary which employs the Participant grantee, the purchase price may be
paid by the assignment and delivery to Monarch or Subsidiary who employs the
Participant of shares of Common Stock or a combination of cash and such shares
equal in value to the purchase price. Any shares of Common Stock so assigned
and delivered to Monarch or the Subsidiary, as applicable, in payment or
partial payment of the purchase price will be valued at Fair Market Value on
the exercise date. Upon the exercise of a Non-qualified Option, Monarch or
the employing Subsidiary shall withhold from the shares of Common Stock to be
issued to the Participant the number of shares necessary to satisfy Monarch's
or the Subsidiary's, as applicable, obligation to withhold Federal taxes, such
determination to be based on the shares Fair Market Value on the date of
exercise.
7.3 Termination of employment
In the event the employment of an optionee terminates, for whatever
reason, prior to the date upon which options become exercisable, then such
options shall terminate and lapse on the date upon which the employment of
such optionee terminates.
If the employment of an optionee terminates for a reason other than
for cause, retirement (as defined and determined under any of the Company's
pension plans), disability (as defined and determined by the Committee) or
death, then all options granted to the optionee and exercisable on the date of
such termination shall expire on the earlier of the tenth anniversary of the
date of grant or the first anniversary of the day of such optionee's
termination of employment due to such reasons; provided, however, such
options, to the extent unexercised, expire on the date that such optionee (i)
uses for profit or discloses to unauthorized persons, confidential information
or trade secrets of the Company, or (ii) breaches any contract with or
violates any fiduciary obligation to the Company, or (iii) engages in unlawful
trading in the Company's securities or the securities of another Company based
on information gained as a result of that optionee's employment with the
Company, or (iv) violates (as determined by the Committee) any covenant not to
compete in effect between the Company and the optionee.
In the event that an optionee is or has been terminated for cause,
such cause including, but not limited to, (i) use for profit or disclosure to
unauthorized persons of confidential information or trade secrets of the
Company, or (ii) breach of any contract with or violation of any fiduciary
obligation to the Company, or (iii) unlawful trading in the Company's
securities or the securities of another Company based on information gained as
a result of that optionee's employment with the Company, or (iv) violation (as
determined by the Committee) of any covenant not to compete in effect between
the Company and the optionee, then that optionee shall forfeit all rights to
any unexercised options granted under the Plan and all of that optionee's
outstanding options shall automatically terminate and lapse, unless the
Committee shall determine otherwise.
If an optionee retires, all options granted to such optionee, and
exercisable on the date of such optionee's retirement shall expire on the
earlier of (i) the tenth anniversary after the date of grant or (ii) the
second anniversary of the day of such optionee's retirement. Any installment
not exercisable on the date of such termination or retirement shall expire and
be thenceforth unexercisable. Whether authorized leave of absence or absence
in military or governmental service may constitute employment for the purposes
of the Plan shall be conclusively determined by the Committee. The Committee
can increase or reduce the amount of options that are exercisable up to but
not exceeding the tenth anniversary of the date of grant, in the event of
optionee termination for other than death or retirement.
7.4 Exercise upon death of optionee
If an optionee dies, the option may be exercised, to the extent of
the number of shares that the optionee could have exercised on the date of
such death, by the optionee's estate, personal representative or beneficiary
who acquires the option by will or by the laws of descent and distribution.
Such exercise may be made at any time prior to the earlier of (i) the tenth
anniversary after the date of grant or (ii) the second anniversary of such
optionee's death. On the earlier of such dates, the option shall terminate.
The Committee may approve all cash payments to the estate of an optionee if
circumstances warrant such a decision.
7.5 Assignability
No option shall be assignable or transferable by the optionee except
by will or by the laws of descent and distribution and during the lifetime of
the optionee the option shall be exercisable only by such optionee.
7.6 Limitation on Incentive Stock Options
During a calendar year, the aggregate fair market value of the
option stock (determined at the time of the ISO grant) for which ISOs are
exercisable for the first time under the Plan, cannot exceed $100,000.
8. Restricted Share Awards
8.1 Grant of Restricted Share Awards
The Committee will determine for each Participant the time or times
when Restricted Shares shall be awarded and the number of shares of Common
Stock to be covered by each Restricted Share Award.
8.2 Restrictions
Shares of Common Stock issued to a Participant as a Restricted Share
Award will be subject to the following restrictions ("Share Restrictions"):
(a) Except as set forth in Sections 8.4 and 8.5, all of the
Restricted Shares subject to a Restricted Award will be forfeited and returned
to Monarch or, in the event such Restricted Shares were provided to the
Participant from shares of Common Stock purchased by the Subsidiary, then the
Restricted Shares will be returned to the Subsidiary. In either case, all
rights of the Participant to such Restricted Shares will terminate without any
payment of consideration by Monarch or the employing Subsidiary unless the
Participant remains in the continuous employment (employment may include
consulting agreements) of Monarch or a Subsidiary for a period of time
determined by the Committee.
(b) During the Restriction Period relating to a Restricted Share
Award, none of the Restricted Shares subject to such award may be sold,
assigned, bequeathed, transferred, pledged, hypothecated or otherwise disposed
of in any way by the Participant.
(c) The Committee may require the Participant to enter into an
escrow agreement providing that the certificates representing Restricted
Shares sold or granted pursuant to the Plan will remain in the physical
custody of Monarch or the employing Subsidiary or an escrow holder during the
Restriction Period.
(d) Each certificate representing a Restricted Share sold or granted
pursuant to the Plan will bear a legend making appropriate reference to the
restrictions imposed on the Restricted Share.
(e) The Committee may impose other restrictions on any Restricted
Shares sold pursuant to the Plan as it may deem advisable, including without
limitation, restrictions under the Securities Act of 1933, as amended, under
the requirements of any stock exchange upon which such share or shares of the
same class are then listed and under any state securities laws or other
securities laws applicable to such shares.
8.3 Rights as a Stockholder
Except as set forth in Section 8.2(b), the recipient of a Restricted
Share Award will have all of the rights of a stockholder of Monarch with
respect to the Restricted Shares, including the right to vote the Restricted
Shares and to receive all dividends or other distributions made with respect
to the Restricted Shares.
8.4 Lapse of Restrictions at Termination of Employment
In the event of the termination of employment of a Participant
during the Restriction Period by reason of death, total and permanent
disability, retirement as determined under any of the Corporation's pension
plans, or discharge from employment other than a discharge for cause, the
Committee may, at its discretion, remove Share Restrictions on Restricted
Shares subject to a Restricted Share Award.
Restricted Shares to which the Share Restrictions have not so lapsed
will be forfeited and returned to the Corporation as provided in Section
8.2(a).
8.5 Lapse of Restrictions at Discretion of the Committee
The Committee may shorten the Restriction Period or remove any or
all Share Restrictions if, in the exercise of its absolute discretion, it
determines that such action is in the best interests of the Corporation and
equitable to the Participant.
8.6 Listing and Registration of Shares
Monarch may, in its discretion, postpone the issuance and/or
delivery of Restricted Shares until completion of stock exchange listing, or
registration, or other qualification of such Restricted Shares under any law,
rule or regulation.
8.7 Designation of Beneficiary
A Participant may, with the consent of the Committee, designate a
person or persons to receive, in the event of death, any Restricted Shares to
which such Participant would then be entitled. Such designation will be made
upon forms supplied by and delivered to the Committee and may be revoked in
writing by the Participant. If a Participant fails effectively to designate a
beneficiary, then such Participant's estate will deemed to be the beneficiary.
8.8 Withholding of Taxes for Restricted Shares
When the Participant, as holder of the Restricted Shares, recognizes
income, either on the Date of Grant or the date the restrictions lapse,
Monarch or the Subsidiary, as applicable, shall withhold from the shares of
Common Stock, the number of shares necessary to satisfy Monarch's or the
Subsidiary's, as applicable, obligation to withhold Federal taxes, such
determination to be based on the shares' Fair Market Value as of the date
income is recognized.
9. Capital Adjustments
The number and price of Common Stock covered by each award of options
and/or Restricted Shares and the total number of shares that may be granted or
sold under the Plan shall be proportionally adjusted to reflect, as deemed
equitable and appropriate by the Committee and subject to any required action
by stockholders, any stock dividend or split, recapitalization, merger,
consolidation, spin-off, reorganization, combination or exchange of shares or
other similar corporate change.
10. Change of Control
Notwithstanding the provisions of Section 9, in the event of a change of
control, all share restrictions on all Restricted Shares will lapse and
vesting on all unexercised stock options will accelerate to the change of
control date. For purposes of this plan, a "Change of Control" of Monarch
shall be deemed to have occurred at such time as (a) any "person" (as that
term is used in Section 13(d) and 14(d) of the Exchange Act) becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of Monarch representing 25.0% or more of the
combined voting power of Monarch's outstanding securities ordinarily having
the right to vote at the election of directors; or (b) individuals who
constitute the Board of Directors of Monarch on the date hereof (the
"Incumbent Board") cease for any reason to constitute at least a majority
thereof, provided that any person becoming a director subsequent to the date
hereof whose election was approved by at least a majority of the directors
comprising the Incumbent Board, or whose nomination or election was approved
by a majority of the Board of Directors of Monarch serving under an Incumbent
Board, shall be, for purposes of this clause (b), considered as if he or she
were a member of the Incumbent Board; or (c) merger, consolidation or sale of
all or substantially all the assets of Monarch occurs, unless such merger or
consolidation shall have been affirmatively recommended to Monarch's
stockholders by a majority of the Incumbent Board; or (d) a proxy statement
soliciting proxies from stockholders of Monarch, by someone other than the
current management of Monarch seeking stockholder approval of a plan or
reorganization, merger or consolidation of Monarch with one or more
corporations as a result of which the outstanding shares of Monarch's
securities are actually exchanged for or converted into cash or property or
securities not issued by Monarch unless the reorganization, merger or
consolidation shall have been affirmatively recommended to Monarch's
stockholders by a majority of the Incumbent Board.
11. Approvals
The issuance of shares pursuant to this Plan is expressly conditioned
upon obtaining all necessary approvals from the Nevada Gaming Commission and
upon obtaining stockholder approval of the Plan.
12. Effective Date of Plan
The effective date of the Plan is June 14, 1993.
13. Term: Amendment of Plan
This Plan shall expire on June 13, 2003 (except to options outstanding on
that date). Monarch's Board may terminate or amend the Plan in any respect at
any time, except that, without the approval of the holders of a majority of
the outstanding Common Stock: the total number of shares that may be sold,
issued or transferred under the Plan may not be increased (except by
adjustment pursuant to Section 9); the provisions of Section 4 regarding
eligibility may not be modified; the purchase price at which shares may be
offered pursuant to options may not be reduced (except by adjustment pursuant
to Section 9); and the expiration date of the Plan may not be extended and no
change may be made which would cause the Plan not to comply with Rule 16(b)3
of the Securities Exchange Act of 1934, as amended from time to time. No
action of the Monarch Board or Monarch's stockholders, however, may, without
the consent of an optionee, alter or impair such optionee's rights under any
option previously granted.
14. No Right of Employment
Neither the action of the Corporation in establishing this Plan, nor any
action taken by any Board of Monarch or any Subsidiary or the Committee under
the Plan, nor any provision of the Plan itself, shall be construed to limit in
any way the right of the Corporation to terminate a Participant's employment
at any time; nor shall it be evidence of any agreement or understanding,
expressed or implied, that the Corporation will employ an employee in any
particular position nor ensure participation in any future compensation or
stock purchase program.
15. Withholding Taxes
Monarch or the Subsidiary, as applicable, shall have the right to deduct
withholding taxes from any payments made pursuant to the Plan or to make such
other provisions as it deems necessary or appropriate to satisfy its
obligations to withhold Federal, state or local income or other taxes incurred
by reason of payments or the issuance of Common Stock under the Plan.
Whenever under the Plan, Common Stock is to be delivered upon vesting of
Restricted Shares or exercise of an option, the Committee shall be entitled to
require as a condition of delivery that the Participant remit an amount
sufficient to satisfy all Federal, state and other government withholding tax
requirements related thereto.
16. Plan not a Trust
Nothing contained in the Plan and no action taken pursuant to the Plan
shall create or be construed to create a trust of any kind, or a fiduciary
relationship, between the Corporation and any Participant, the executor,
administrator or other personal representative, or designated beneficiary of
such Participant, or any other persons. Any reserves that may be established
by the Corporation in connection with the Plan shall continue to be part of
the general funds of the Corporation and no individual or entity other than
the Corporation shall have any interest in such funds until paid to a
Participant. If and to the extent that any Participant of such Participant's
executor, administrator or other personal representative, as the case may be,
acquires a right to receive any payment from the Corporation pursuant to the
Plan, such right shall be no greater than the right of an unsecured general
creditor of the Corporation.
17. Notices
Each Participant shall be responsible for furnishing the Committee with
the current and proper address for the mailing of notices and delivery of
agreements, Common Stock and cash pursuant to the Plan. Any notices required
or permitted to be given shall be deemed given if directed to the person to
whom addressed at such address and mailed by regular United States mail,
first-class and prepaid. If any item mailed to such address is returned as
undeliverable to the addressee, mailing will be suspended until the
Participant furnishes the proper address. This provision shall not be
construed as requiring the mailing of any notice or notification if such
notice is not required under the terms of the Plan or any applicable law.
18. Separability of Provisions
If any provision of this Plan shall be held invalid or unenforceable,
such invalidity or unenforceability shall not affect any other provisions
hereof, and this Plan shall be construed and enforced as if such provisions
had not been included.
19. Payment to Minors, etc.
Any benefit payable to or for the benefit of a minor, an incompetent
person or other person incapable of receipting therefor shall be deemed paid
when paid to such person's guardian or to the party providing or reasonably
appearing to provide for the care of such person, and such payment shall fully
discharge the Committee, the Corporation and other parties with respect
thereto.
20. Headings and Captions
The headings and captions herein are provided for reference and
convenience only, shall not be considered part of the Plan, and shall not be
employed in the construction of the Plan.
21. Controlling Law
This Plan shall be construed and enforced according to the laws of the
State of Nevada to the extent not preempted by Federal law, which shall
otherwise control.