Exhibit 10.17
AMERISTAR CASINOS, INC.
CHANGE IN CONTROL SEVERANCE PLAN
Amended and Restated Effective December 4, 2007
ARTICLE 1
NAME, PURPOSE AND EFFECTIVE DATE
1.1 Name and Purpose of
Plan . The name of this plan is the Ameristar Casinos, Inc.
Change in Control Severance Plan (the “Plan”). The
purpose of the Plan is to provide compensation and benefits to
certain senior-level employees of Ameristar Casinos, Inc. (the
“Company”) and its subsidiaries upon certain Change in
Control events.
1.2 Effective Date
. The effective date of the Plan is October 26, 2007 (the
“Effective Date”). The compensation and benefits
payable under this Plan are payable upon Change in Control events
that occur after the Effective Date.
1.3 ERISA
Status . This Plan is intended to be an unfunded plan that
is maintained primarily to provide severance compensation and
benefits to a select group of “management or highly
compensated employees” within the meaning of
Sections 201, 301 and 401 of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), and
therefore to be exempt from the provisions of Parts 2, 3 and 4 of
Title I of ERISA.
ARTICLE 2
Definitions
For purposes of this Plan, in
addition to the terms defined elsewhere in this Plan, the following
words and phrases shall have the following meanings:
2.1 “ Base
Salary ” shall mean the annual base salary
payable to an Eligible Executive (as defined in Section 3.1)
at the time of a Change in Control or a Termination Date, whichever
is greater.
2.2 “
Board ” shall mean the Board of Directors of
the Company.
2.3 “
Cause, ” in the case of any Eligible
Executive, shall have the meaning ascribed to such term in or for
purposes of a written employment agreement in effect as of the
Termination Date between the Company or one of its subsidiaries and
the Eligible Executive, or if “cause” is not defined in
or for purposes of any such employment agreement or no such
employment agreement is in effect as of the Termination Date, shall
mean that the Eligible Executive:
(a) has
been formally charged with or convicted of a felony or any crime
involving fraud, theft, embezzlement, dishonesty or moral
turpitude;
(b) has
participated in fraud, embezzlement, or other act of dishonesty
involving the Company or one of its subsidiaries;
(c) has
been found unsuitable to hold a gaming license or has failed in a
timely manner to seek or obtain any finding of suitability or other
approval by any gaming regulatory authority whose license, finding
of suitability or other approval is legally required as a condition
of the Eligible Executive’s performance of his or her duties
and responsibilities to the Company or one of its
subsidiaries;
(d) has
failed to fulfill or maintain all suitability and character
requirements for continued employment by the Company as from time
to time may be imposed pursuant to the Company’s Gaming
Compliance Program, Company policies or gaming laws, regulations or
orders applicable to the Company or one of its subsidiaries;
(e) in
carrying out his or her duties to the Company or one of its
subsidiaries, has engaged in acts or omissions constituting gross
negligence or willful misconduct resulting in, or which, in the
good faith opinion of the Company, could be expected to result in,
material economic harm to the Company;
(f) has
failed for any reason, within ten (10) days of receipt by the
Eligible Executive of written notice thereof from the Company, to
correct, cease or alter any action or omission that (i) in the good
faith opinion of the Company does or may materially and adversely
affect its business or operations, (ii) violates or does not
conform with the Company’s policies, standards or regulations
or (iii) constitutes a material breach of any written
agreement between the Company and the Eligible Executive;
(g) has
through willful or grossly negligent conduct disclosed any
“confidential information” of the Company without
authorization except as otherwise permitted by the terms of any
confidentiality agreement between the Eligible Executive and the
Company, another agreement between the parties or any Company
policy in effect at the time of disclosure; or
(h) has
failed for any reason, within ten (10) days of receipt by the
Eligible Executive of written notice thereof from the Company, to
correct, cease or alter any action or omission by which the
Eligible Executive has breached his or her duty of loyalty to the
Company.
The Company shall have the burden of
proving Cause in any dispute or proceeding between the Company and
the Eligible Executive.
2.4 “ Change in
Control ” shall mean the occurrence of any of
the following events:
(a) Individuals
who, as of the Effective Date, constitute the entire Board
(“Incumbent Directors”) cease for any reason to
constitute a majority of the Board; provided, however, that any
individual becoming a director subsequent to such date whose
election, or nomination for election by the Company’s
stockholders, was approved by the vote of a majority of the then
Incumbent Directors (other than an election or nomination of an
individual whose
2
assumption of office is the result of an actual or threatened
election contest relating to the election of directors of the
Company), also shall be an Incumbent Director;
(b) Any
Person other than a Permitted Holder shall become the beneficial
owner (as defined in Rules 13d-3 and 13d-5 under the
Securities Exchange Act of 1934, as amended), directly or
indirectly, of securities of the Company representing in the
aggregate fifty percent (50%) or more of either (i) the then
outstanding shares of common stock of the Company or (ii) the
Combined Voting Power of all then outstanding Voting Securities of
the Company; provided, however, that notwithstanding the foregoing,
a Change in Control shall not be deemed to have occurred for
purposes of this clause (b) solely as the result of:
(i) An
acquisition of securities by the Company which, by reducing the
number of shares of common stock of the Company or other Voting
Securities outstanding, increases (A) the proportionate number
of shares of common stock of the Company beneficially owned by any
Person to fifty percent (50%) or more of the shares of
Company’s common stock then outstanding or (B) the
proportionate voting power represented by the Voting Securities
beneficially owned by any Person to fifty percent (50%) or more of
the Combined Voting Power of all then outstanding voting
securities; or
(ii) An
acquisition of securities directly from the Company, except that
this paragraph (ii) shall not apply to: (A) any conversion of
a security that was not acquired directly from the Company; or
(B) any acquisition of securities if the Incumbent Directors
at the time of the initial approval of such acquisition would not
immediately after (or otherwise as a result of) such acquisition
constitute a majority of the Board;
(c) Any
merger, consolidation or recapitalization of the Company (or, if
the capital stock of the Company is affected, any subsidiary of the
Company), or any sale, lease or other transfer (in one transaction
or a series of transactions contemplated or arranged by any party
as a single plan) of all or substantially all of the assets of the
Company (each of the foregoing being an “Acquisition
Transaction”) where (i) the stockholders of the Company
immediately prior to such Acquisition Transaction would not
immediately after such Acquisition Transaction beneficially own,
directly or indirectly, shares representing in the aggregate more
than fifty percent (50%) of (A) the then outstanding common
stock of the corporation surviving or resulting from such merger,
consolidation or recapitalization or acquiring such assets of the
Company, as the case may be (the “Surviving
Corporation”) (or of its ultimate parent corporation, if any)
and (B) the Combined Voting Power of the then outstanding
Voting Securities of the Surviving Corporation (or of its ultimate
parent corporation, if any) or (ii) the Incumbent Directors at
the time of the initial approval of such Acquisition Transaction
would not immediately after such Acquisition Transaction constitute
a majority of the board of directors of the Surviving Corporation
(or of its ultimate parent corporation, if any); or
(d) The
liquidation or dissolution of the Company.
2.5 “ Combined
Voting Power ” shall mean the aggregate votes
entitled to be cast generally in the election of directors of a
corporation by holders of the then outstanding Voting Securities of
such corporation.
3
2.6 “
Disability ” shall mean a physical or
mental incapacity that prevents the Eligible Executive from
performing, with reasonable accommodation if necessary, the
essential functions of his or her position with the Company for a
period of ninety (90) consecutive days as determined:
(a) in accordance with any long-term disability plan provided
by the Company of which the Eligible Executive is a participant; or
(b) by a licensed healthcare professional selected by the
Company, in its sole discretion, to determine whether a Disability
exists, to whom the Eligible Executive hereby agrees to submit to
medical examinations. In addition, the Eligible Executive may
submit to the Company documentation of a Disability, or lack
thereof, from a licensed healthcare professional of his or her
choice. Following a determination of a Disability or lack of
Disability by the Company’s or the Eligible Executive’s
licensed healthcare professional, the other party may submit
subsequent documentation relating to the existence of a Disability
from a licensed healthcare professional selected by such other
party. In the event that the medical opinions of such licensed
healthcare professionals conflict, such licensed healthcare
professionals shall appoint a third licensed healthcare
professional to examine the Eligible Executive, and the opinion of
such third licensed healthcare professional shall be
dispositive.
2.7 “ Good
Reason, ” in the case of any Eligible
Executive, shall mean and exist if, without the Eligible
Executive’s prior written consent, one or more of the
following events occurs upon or following a Change in
Control:
(a) a
material diminution in the Eligible Executive’s authority,
duties or responsibilities, including without limitation, a
material diminution in the authority, duties or responsibilities of
the person to whom the Eligible Executive is required to
report;
(b) the
Eligible Executive is required to relocate from, or maintain his or
her principal office outside of, a twenty-five (25) mile
radius of his or her principal office location at the time of the
Change in Control;
(c) the
Eligible Executive’s Base Salary is decreased by the
Company;
(d) during
the first twelve (12) months following the Change in Control,
the failure of the Company to award the Eligible Executive an
annual bonus equal to at least seventy-five percent (75%) of the
average amount of the annualized bonus paid to the Eligible
Executive for the two (2) full years immediately preceding the
Change in Control;
(e) the
Eligible Executive is excluded from participation in any employee
benefit or incentive plan or program or his or her benefits under
such plans or programs are materially reduced in violation of any
employment or other agreement to which the Eligible Employee is a
party;
(f) the
Company fails to pay the Eligible Executive any payments that have
become payable under the Company’s Deferred Compensation Plan
or any similar Company plan in which the Eligible Executive is a
participant;
(g) the
Company fails to reimburse the Eligible Executive for any business
expenses properly incurred in accordance with the Company’s
policies, procedures or practices;
4
(h) the
Company fails to obtain a written agreement from any assignee of
the Company to assume the Company’s obligations under this
Plan and any employment agreement, indemnification agreement or
stock option, restricted stock or other agreement to which the
Eligible Executive is a party upon an assignment of this Plan or
any such agreement in a sale of assets constituting a Change in
Control; or
(i) a
material breach by the Company of its obligations to the Eligible
Executive under this Plan, any employment agreement or
indemnification agreement to which the Eligible Executive is a
party or any written plan documents or agreements of the Company
defining stock option rights, restricted stock rights, incentive
compensation or employee benefit plan rights of the Eligible
Executive;
provided, however, in each case that the Company fails for any
reason, within thirty (30) days of receipt by the Company of
written notice thereof from the Eligible Executive (which notice
must be given within ninety (90) days following the initial
occurrence of any such event), to correct, cease or alter any
action or omission causing any such event(s) and the Eligible
Executive resigns from employment within ninety (90) days
after the expiration of the cure period. If the Company disputes
the existence of Good Reason, the Company shall have the burden of
proving the absence of Good Reason.
2.8 “ Permitted
Holder ” shall mean (a) the Company or
any trustee or other fiduciary holding securities under an employee
benefit plan of the Company, (b) to the extent they hold
securities in any capacity whatsoever, the Estate of Craig H.
Neilsen, deceased, and the heirs, ancestors, lineal descendants,
stepchildren, legatees and legal representatives of Craig H.
Neilsen or his Estate, and the trustees from time to time of any
bona fide trusts of which Craig H. Neilsen or one or more of the
foregoing are the sole beneficiaries or grantors thereof, including
but not limited to The Craig H. Neilsen Foundation, Ray H. Neilsen
and his estate, spouse, heirs, ancestors, lineal descendants,
stepchildren, legatees and legal representatives, and the trustees
from time to time of any bona fide trusts of which one or more of
the foregoing are the sole beneficiaries or grantors thereof and
(c) any Person controlled, directly or indirectly, by one or
more of the foregoing Persons referred to in the immediately
preceding clause (b), whether through the ownership of voting
securities, by contract, in a fiduciary capacity, through
possession of a majority of the voting rights (as directors and/or
members) of a not-for-profit entity, or otherwise.
2.9 “
Person ” shall mean any individual,
entity (including, without limitation, any corporation (including,
without limitation, any charitable corporation or private
foundation), partnership, limited liability company, trust
(including, without limitation, any private, charitable or
split-interest trust), joint venture, association or governmental
body) or group (as defined in Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder); provided, however, that
“Person” shall not include the Company, any of its
subsidiaries, any employee benefit plan of the Company or any of
its majority-owned subsidiaries or any entity organized, appointed
or established by the Company or such subsidiary for or pursuant to
the terms of any such plan.
2.10 “ Protection
Period ” shall mean the one-year period
commencing with the date of the Change in Control.
5
2.11 “ Target
Bonus ” shall mean the Eligible Executive’s
target annual incentive bonus for the year in which the Change in
Control or the Termination Date occurs, whichever is greater.
2.12 “
Termination Date ” shall mean the date
the Company or the Eligible Executive delivers written notice of
termination to the other party.
2.13 “ Voting
Securities ” shall mean all securities of a
corporation having the right under ordinary circumstances to vote
in an election of the board of directors of such corporation.
ARTICLE 3
ELIGIBILITY AND BENEFITS
3.1 Eligible
Executives . All Corporate- and property-level employees of
the Company or its subsidiaries in the position of Vice President
or higher (including any property General Manager, Interim or
Acting General Manager, Assistant General Manager or Interim or
Acting Assistant General Manager) at the time of a Change in
Control are eligible for benefits under this Plan (the
“Eligible Executives”), excepting solely those Eligible
Executives who have elected, on or prior to August 31, 2007,
not to participate in the Plan. All compensation and benefits
provided under the Plan shall be in lieu of, and not in addition
to, any severance or other termination pay or benefits payable
specifically as a result of a Change in Control or a termination of
employment following a Change in Control and within the Protection
Period provided for in any written employment agreement between the
Company or one of its subsidiaries and a participating Eligible
Executive. Participation in this Plan shall not affect any other
compensation or benefits provided for in any written employment
agreement between the Company or one of its subsidiaries and an
Eligible Executive and shall not affect an Eligible
Executive’s right to vested benefits such as accrued salary,
accrued vacation or paid time off or vested retirement plan
benefits. If an Eligible Executive has elected not to participate
in this Plan as provided hereinabove, such Eligible Executive shall
not be entitled to any compens
| 
