Exhibit 2.1
Premier Entertainment Biloxi
LLC
2004 Membership Interest
Appreciation Rights Plan
1.
Purpose of
this Plan.
In order to
attract and maintain the services of certain senior level Employees
who are or will be providing services
to the Company, the Company desires to establish the Premier
Entertainment Biloxi LLC 2004 Membership Interest Appreciation
Rights Plan (this “Plan”) in which Participants will
have the opportunity to receive a cash award based on the increase
in value of the
Company.
2.
Definitions.
The following
words and phrases as used herein have the following meanings,
unless a different meaning is
plainly required by the context:
(a)
“
Board ” or “ Board of Managers ”
means the individuals serving on the Board of Managers of the Company
pursuant to the Operating Agreement.
(b)
“
Change in Control ” For purposes of this Plan, a
“Change in Control” of the Company is deemed to have
occurred as of the first day that any one or more of the
following conditions shall have been
satisfied:
(i)
the “Beneficial Ownership” of securities representing
more than fifty percent (50%) of the
combined voting power of the Company is acquired by any
“person” as defined in Section 13(d) and 14(d) of the
Exchange Act (other than the equity holders of the
Company on the
date hereof, the Company, any trustee or other fiduciary holding
securities under an employee benefit plan of the Company, or any
corporation owned, directly or indirectly, by the members
of the Company in substantially the same proportions as
their ownership of stock of the
Company);
(ii)
the Company sells or otherwise disposes of all or substantially all
of its assets, or adopts a plan
of liquidation; or
(iii)
during any period of three consecutive years, individuals who at
the beginning of such period
were members of the Board cease for any reason to constitute at
least a majority thereof (unless the election, or the nomination
for election by the Company’s members, of each new manager was
approved by a vote of at least a majority of the managers then
still in office who were managers
at the beginning of such period or whose election or nomination was
previously so approved).
(c)
“
Committee ” means a committee appointed by the Board
in accordance with Section 3 of this Plan.
(d)
“
Company
” means
Premier Entertainment Biloxi LLC, a Delaware limited liability
company.
(e)
“
Employee
” means
any person, including managers and officers, employed by the
Company.
(f)
“
Fair Market
Value Per
Membership Unit ” means, as of any
date, the value of a Membership Unit of the Company determined by a
majority of the Board of Managers in good faith in its sole and
absolute discretion, with reference to the Company’s Class C
membership interests. It is the intent of the Company that the Fair
Market Value Per Membership Unit mirrors the fair market value of
the Company’s Class C membership interests.
(g)
“
Good Reason ” means without the
Participant’s written consent:
(i)
a reduction by the Company in the Participant’s annual base
salary as in effect on the date hereof;
(ii)
if the Participant performed his principal duties at the
Company’s executive offices
immediately before the Change in Control, the relocation of the
Company’s principal executive
offices to a location outside of the metropolitan area of the
executive offices (which consists of all
counties which are contiguous to the executive offices), or if
the Participant performed his
principal duties at a location other than the Company’s
executive offices immediately before
the Change in Control, the Company’s requiring the
Participant to be based at any place more than sixty (60) miles
distance from the location which the Participant
performed his
principal duties prior to a Change in Control, except for required
travel on the Company’s business to
an extent substantially consistent with the Participant’s
business travel obligations at the time of
a Change in Control; or
(iii)
the failure by the Company to continue to provide the Participant
with benefits substantially
similar to, or of substantially the same aggregate value to the
Participant, as those enjoyed by other
similarly-situated individuals employed by the Company, as the case
may be,
from time to time after a Change in Control.
(h)
“ Grant Date ” means the date the Board grants
Membership Interest Appreciation Rights to a
Participant.
(i)
“ Membership Interest Appreciation Right ” means
a single unit of value granted under this
Plan.
(j)
“ Operating Agreement ” means the
Company’s Limited Liability Company Operating Agreement
effective as of January 23, 2004, as amended and restated from time
to time.
(k)
“ Participant ” means a senior level Employee of
the Company to whom Membership Interest Appreciation Rights are
granted.
(1)
“ Payment Event ” means:
2
(i)
A recapitalization event resulting in the repayment of the Class
A Preferred Membership
Interests of the Company by which such membership interests
are redeemed, exchanged, or
refinanced and all amounts due thereunder (including all interest
and equity amounts) are paid
in full (“Type A Payment Event”); or
(ii)
Within thirty (30) days after the date of a Change in Control event
(“Type B Payment Event”).
(m)
“ Vested Membership Interest Appreciation Rights
” means Membership Interest Appreciation Rights that
are vested pursuant to Section 5 hereof.
(n)
“ Termination With Cause, ” with respect to a
Participant, means the termination by the Company of such
Participant’s employment or engagement for (i)
misappropriation of funds, (ii) conviction of a felony or crime,
(iii) failure to comply with the lawful directions of the superiors
of the Participant or the Board of Managers, (iv) gross negligence
or willful misconduct in connection
with Participant’s performance of services for the Company,
or (v) any other reason or
determination of the Board of Managers of the Company.
3.
Administration.
This Plan shall
be administered by (A) the Board, or (B) a Committee designated by
the Board to administer this
Plan. Once appointed, the Committee shall continue to serve in its
designated capacity until otherwise directed by the Board. From
time to time the Board may, in the Board’s sole discretion,
increase the size of the Committee and appoint additional members,
remove members (with or without cause) and substitute new members,
fill vacancies, and remove all members of the
Committee and thereafter directly administer this Plan. All actions
of the
Committee shall be undertaken with the approval of a majority of
the members of the Committee. References in this Plan to the Board
shall include the Committee if it has been established by the
Board.
Subject to the
provisions of this Plan, the Board shall have exclusive power to
select Participants and to
determine t
