AMERISTAR CASINOS, INC.
2009 STOCK INCENTIVE PLAN
(Effective as of June 3,
2009)
The purposes of
the Ameristar Casinos, Inc. 2009 Stock Incentive Plan (the
“Plan”) are to (i) enable Ameristar Casinos, Inc. (the
“Company”) and Related Companies (as defined below) to
attract, motivate and retain top-quality directors, officers,
employees, consultants, advisers and independent contractors
(including without limitation dealers, distributors and other
business entities or persons providing services on behalf of the
Company or a Related Company), (ii) provide substantial
incentives for Participants (as defined in Section 5) to act
in the best interests of the stockholders of the Company and
(iii) reward extraordinary effort by Participants on behalf of
the Company or a Related Company. For purposes of the Plan, a
“Related Company” means any corporation, partnership,
limited liability company, joint venture or other entity in which
the Company owns, directly or indirectly, at least a fifty percent
(50%) beneficial ownership interest.
SECTION 2.
Types of Awards . Awards under the Plan may be in the form
of (i) Stock Options, (ii) Restricted Stock,
(iii) Restricted Stock Units, or (iv) Performance Share
Units.
SECTION 3.
Administration .
3.1 Except as
otherwise provided herein, the Plan shall be administered by the
Compensation Committee of the Board of Directors of the Company
(the “Board”) or such other committee of directors as
the Board shall designate. If no such committee has been appointed
by the Board, the Plan shall be administered by the Board, and the
Plan shall be administered by the Board to the extent provided in
the last sentence of this Section. Such committee as shall be
designated to administer the Plan, if any, or the Board, as the
case may be, is referred to herein as the “Committee.”
Notwithstanding any other provision of the Plan to the contrary,
all actions with respect to the administration of the Plan in
respect of the non-employee directors shall be taken by the
Board.
3.2 The Committee
shall have the following authority with respect to awards under the
Plan to Participants: to grant awards to eligible Participants
under the Plan; to adopt, alter and repeal such administrative
rules, guidelines and practices governing the Plan as it shall deem
advisable; to interpret the terms and provisions of the Plan and
any award granted under the Plan; to make all factual and other
determinations necessary or advisable for administration of the
Plan; and to otherwise supervise the administration of the Plan. In
particular, and without limiting its authority and powers, the
Committee shall have the authority:
(a) to determine
whether and to what extent any award or combination of awards will
be granted hereunder;
(b) to select the
Participants to whom awards will be granted;
(c) to determine
the number of shares of the common stock of the Company, $0.01 par
value (the “Stock”), to be covered by each award
granted hereunder, provided that (i) no Participant will be
granted Stock Options on or with respect to more than 2,000,000
shares of Stock in any calendar year and (ii) no Participant
will be granted Performance Share Units, or any other award (other
than Stock Options) intended to qualify as
“performance-based” within the meaning of Section
162(m) of the Internal Revenue Code and Treasury Regulations
thereunder (“Section 162(m)”, on or with respect
to more than 500,000 shares of Stock in any calendar
year;
(d) to determine
the terms and conditions of any award granted hereunder, including,
but not limited to, any vesting or other restrictions based on
completion of a specified period of service, attainment of
specified performance goals or such other criteria as the Committee
may determine, and to determine whether the terms and conditions of
the award are satisfied;
(e) to determine
the treatment of awards upon a Participant’s retirement,
disability, death, termination for cause or other termination of
employment or other qualifying relationship with the Company or a
Related Company;
(f) to determine
that amounts equal to the amount of any dividends declared with
respect to the number of shares covered by an award (i) will
be paid to the Participant currently or (ii) will be deferred
and deemed to be reinvested or (iii) will otherwise be credited to
the Participant, or that the Participant has no rights with respect
to such dividends (in each case, subject to any restrictions
imposed by Section 409A of the Internal Revenue Code and
Treasury Regulations thereunder
(“Section 409A”));
(g) to determine
whether, to what extent, and under what circumstances Stock and
other amounts payable with respect to an award will be deferred
either automatically or at the election of a Participant, including
providing for and determining the amount (if any) of deemed
earnings on any deferred amount during any deferral period (in each
case, subject to any restrictions imposed by
Section 409A);
(h) to provide
that the shares of Stock received as a result of an award shall be
subject to a right of first refusal, pursuant to which the
Participant shall be required to offer to the Company any shares
that the Participant wishes to sell, subject to such terms and
conditions as the Committee may specify;
(i) subject to any
restrictions imposed by Section 409A, to amend the terms of
any award, prospectively or retroactively; provided, however, that
no amendment shall impair the rights of the award holder without
his or her consent;
(j) subject to any
restrictions imposed by Section 409A, to substitute new Stock
Options for previously granted Stock Options, or for options
granted
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under other
plans, in each case including previously granted options having
higher option prices; and
(k) to correct
defects, supply omissions and reconcile inconsistencies with
respect to any awards made under the Plan in the manner and to the
extent it shall deem desirable to carry out the purpose of the
Plan.
3.3 All
determinations made by the Committee pursuant to the provisions of
the Plan shall be final and binding on all persons, including the
Company and all Participants.
3.4 The Committee
may from time to time delegate to one or more officers of the
Company any or all of its authority granted hereunder except with
respect to awards granted to persons subject to Section 16 of
the Securities Exchange Act of 1934 (the “Exchange
Act”). The Committee shall specify the maximum number of
shares that the officer or officers to whom such authority is
delegated may award, and the Committee may in its discretion
specify any other limitations or restrictions on the authority
delegated to such officer or officers.
SECTION 4.
Stock Subject to Plan .
4.1 The total
number of shares of Stock reserved and available for distribution
under the Plan shall be 6,000,000 (subject to adjustment as
provided in Section 4.3), any or all of which may be issued
with respect to Incentive Stock Options under the Plan. Shares of
Stock issued in connection with any award under the Plan may
consist of authorized but unissued shares or treasury
shares.
4.2 To the extent
a Stock Option terminates without having been exercised, or shares
awarded are forfeited or a Restricted Stock Unit award or
Performance Share Unit award terminates without shares having been
delivered to the Participant, the shares subject to such award
shall again be available for distribution in connection with future
awards under the Plan, subject to the limitations set forth in
Section 4.1.
4.3 In the event
of any merger, reorganization, consolidation, sale of all or
substantially all assets, recapitalization, Stock dividend, Stock
split, reverse Stock split, spin-off, split-up, split-off,
extraordinary cash dividend, distribution of assets or other change
in corporate structure affecting the Stock, a substitution or
adjustment, as may be determined to be appropriate by the Committee
in its sole discretion, shall be made in the aggregate number and
kind of shares reserved for issuance under the Plan, the number and
kind of shares or other property subject to outstanding awards and
the amounts to be paid by award holders or the Company, as the case
may be, with respect to outstanding awards; provided, however, that
no such adjustment shall increase the aggregate value of any
outstanding award. In the event any change described in this
Section 4.3 occurs and an adjustment is made in the
outstanding awards, a similar adjustment shall be made in the
maximum number and kind of shares covered by Stock Options and
other awards that may be granted to any Participant pursuant to
Section 3.2(c).
4.4 No fractional
shares shall be issued or delivered under the Plan. The Committee
shall determine whether the value of fractional shares shall be
paid in cash or other property, or whether such fractional shares
and any rights thereto shall be cancelled without
payment.
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Persons who are or
who agree to become directors, officers, employees, consultants,
advisers or independent contractors of the Company or a Related
Company (including without limitation dealers, distributors and
other business entities or persons providing services on behalf of
the Company or a Related Company) are eligible to participate in
the Plan. All employees of the Company or a Related Company are
eligible to be granted Incentive Stock Options. Persons who are
granted awards under the Plan (“Participants”) shall be
selected from time to time by the Committee, in its sole
discretion, from among those eligible.
SECTION 6.
Stock Options .
6.1 The Stock
Options awarded to officers and employees under the Plan may be of
two types: (i) Incentive Stock Options within the meaning of
Section 422 of the Internal Revenue Code or any successor
provision thereto (“Section 422”); and
(ii) Non-Qualified Stock Options. If any Stock Option does not
qualify as an Incentive Stock Option, or the Committee at the time
of grant determines that any Stock Option shall be a Non-Qualified
Stock Option, it shall constitute a Non-Qualified Stock Option.
Stock Options awarded to any Participant who is not an officer or
employee of the Company or a Related Company shall be Non-Qualified
Stock Options.
6.2 Subject to the
following provisions, Stock Options awarded to Participants under
the Plan shall be in such form and shall have such terms and
conditions as the Committee may determine:
(a) Option
Price . The option price per share of Stock purchasable under a
Stock Option shall be determined by the Committee, but shall not be
less than the Fair Market Value of the Stock on the date of award
of the Stock Option. For purposes of the Plan, Fair Market Value in
relation to a share of the Stock means (i) if the Stock is
publicly traded, the mean between the highest and lowest quoted
selling prices of the Stock on the date in question or, if not
available, on the trading date immediately following such date or
(ii) if the Stock is not publicly traded, the fair market
value as determined by the Committee in accordance with
Section 409A.
(b) Option
Term . The term of each Stock Option shall be fixed by the
Committee, but shall in no event be longer than one hundred twenty
(120) months after the date of grant of such Stock
Option.
(c)
Exercisability . Stock Options shall be exercisable at such
time or times and subject to such terms and conditions as shall be
determined by the Committee. The Committee may waive any exercise
or vesting provisions contained in an award or accelerate the
exercisability or vesting of outstanding Stock Options at any time
in whole or in part.
(d) Method of
Exercise . Stock Options may be exercised in whole or in part
at any time during the option period by giving written notice of
exercise to
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the Company
specifying the number of shares to be purchased, accompanied by
payment of the purchase price. Payment of the purchase price shall
be made in such manner as the Committee may provide in the award,
which may include cash (including cash equivalents), delivery of
shares of Stock acceptable to the Committee already owned by the
optionee or subject to awards hereunder, any other manner permitted
by law as determined by the Committee, or any combination of the
foregoing. The Committee may provide that all or part of the shares
received upon the exercise of a Stock Option which are paid for
using Restricted Stock shall be restricted in accordance with the
original terms of the award in question.
(e) No
Stockholder Rights . An optionee shall have no rights to
dividends or other rights of a stockholder with respect to shares
subject to a Stock Option until the optionee has given written
notice of exercise and has paid for such shares, and the optionee
has been duly recorded as the owner of the shares on the books of
the Company.
(f) Surrender
Rights . The Committee may provide that Stock Options may be
surrendered for cash upon any terms and conditions set by the
Committee.
(g)
Non-Transferability; Limited Transferability . A Stock
Option agreement may permit an optionee to transfer the Stock
Option to his or her children, grandchildren or spouse
(“Immediate Family”), to one or more trusts for the
benefit of such Immediate Family members, or to one or more
partnerships or limited liability companies in which such Immediate
Family members are the only partners or members if (i) the
agreement setting forth such Stock Option expressly provides that
such Stock Option may be transferred only with the express written
consent of the Committee and (ii) the optionee does not
receive any consideration in any form whatsoever for such transfer
other than the receipt of an interest in the trust, partnership or
limited liability company to which the Stock Option is transferred.
Any Stock Option so transferred shall continue to be subject to the
same terms and conditions as were applicable to such Stock Option
immediately prior to the transfer thereof. Any Stock Option not
(x) granted pursuant to any agreement expressly allowing the
transfer of such Stock Option or (y) amended expressly to
permit its transfer shall not be transferable by the optionee
otherwise than by will or by the laws of descent and distribution,
and such Stock Option shall be exercisable during the
optionee’s lifetime only by the optionee.
(h) Termination
of Relationship . If an optionee’s employment or other
qualifying relationship with the Company or a Related Company
terminates by reason of death, disability, retirement, voluntary or
involuntary termination or otherwise, the Stock Option shall be
exercisable to the extent determined by the Committee; provided,
however, that unless employment or such other qualifying
relationship is terminated for cause (as may be defined by the
Committee in connection with the grant of any Stock Option), the
Stock Option shall remain exercisable (to the extent that it was
otherwise exercisable on the date of
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termination)
for (A) at least six (6) months from the date of
termination if termination was caused by death or disability or
(B) at least ninety (90) days from the date of
termination if termination was caused by other than death or
disability, but in no event beyond the option term fixed pursuant
to Section 6.2(b). To the extent permitted under
Section 409A, the Committee may provide that, notwithstanding
the option term fixed pursuant to Section 6.2(b), a Stock
Option which is outstanding on the date of an optionee’s
death shall remain outstanding for an additional period after the
date of such death.
(i) Option
Grants to Participants Subject to Section 16 . If for any
reason any Stock Option granted to a Participant subject to
Section 16 of the Exchange Act is not approved in the manner
provided for in clause (d)(1) or (d)(2) of Rule 16b-3 under
the Exchange Act or any successor rule
(“Rule 16b-3”), neither the Stock Option (except
upon its exercise) nor the Stock underlying the Stock Option may be
disposed of by the Participant until six months have elapsed
following the date of grant of the Stock Option, unless the
Committee otherwise specifically permits such
disposition.
6.3
Notwithstanding the provisions of Section 6.2, no Incentive
Stock Option shall (i) have an option price which is less than
one hundred percent (100%) of the Fair Market Value of the Stock on
the date of the award of the Stock Option (or less than one hundred
ten percent (110%) of the Fair Market Value of the Stock on the
date of award of the Stock Option if the Participant owns, or would
be considered to own by reason of Section 424(d) of the Internal
Revenue Code or any successor provision thereto, more than ten
percent (10%) of the total combined voting power of all classes of
stock of the Company or any parent or subsidiary of the Company at
the time of the grant of the Stock Option), (ii) be
exercisable more than ten (10) years after the date such
Incentive Stock Option is awarded (five (5) years after the
date of award if the Participant owns, or would be considered to
own by reason of Section 424(d) of the Internal Revenue Code or any
successor provision thereto, more than ten percent (10%) of the
total combined voting power of all classes of stock of the Company
or any parent or subsidiary of the Company at the time of the grant
of the Stock Option), (iii) be awarded more than ten
(10) years after the effective date of the Plan or
(iv) be transferable other than by will or by the laws of
descent and distribution. In addition, the aggregate Fair Market
Value (determined as of the time a Stock Option is granted) of
Stock with respect to which Incentive Stock Options are exercisable
for the first time by a Participant in any calendar year (under the
Plan and any other plans of the Company or any subsidiary or parent
corporation) shall not exceed $100,000.
SECTION 7.
Restricted Stock .
Subject to the
following provisions, all awards of Restricted Stock to
Participants shall be in such form and shall have such terms and
conditions as the Committee may determine:
(a) The Restricted
Stock award shall specify the number of shares of Restricted Stock
to be awa
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