Amendment to Employment Agreement of Nicholas A. Lopardo dated July 16, 2008
EXHIBIT 10.2
AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
This Amendment No. 1 to Employment Agreement (the “Agreement”), effective as of July __, 2008, is made and entered into by and between Myriad Entertainment and Resorts, Inc. (“Myriad”), a Delaware corporation, and Nicholas A. Lopardo (“Executive”).
WHEREAS, on or about August 9, 2006, Myriad and Executive entered into that certain Agreement, providing for the terms and conditions of Executive’s employment by Myriad (the “2006 Agreement”); and
WHEREAS, Myriad and Executive wish to amendment certain provisions of the 2006 Agreement.
In consideration of the mutual promises contained herein, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Myriad and the Executive intend to be legally bound and agree as follows.
1.
Employment and Agreement Term.
Myriad will employ the Executive under the terms and conditions set forth in this Agreement for an initial term beginning July __, 2008 (the “Effective Date”) and ending on June __, 2011 (the “Initial Term”). The Agreement shall automatically renew for successive terms of one (1) year (each a “Renewal Term”) unless notice not to renew is furnished by either party at least ninety (90) days prior to expiration of the Initial Term or then current Renewal Term. For purposes hereof, the Initial Term and each Renewal Term are collectively referred to as the “Term.” Notwithstanding anything in this paragraph 1, the Executive’s employment may be terminated at any time in accordance with paragraph 10.
2.
Position.
During the Term, Executive shall be nominated as a Member of the Board of Directors of Myriad, and, if elected, serve as its Chairman. The parties acknowledge that Executive presently serves as Chairman of the Board and Myriad agrees that it shall use its best efforts to cause Executive to be reelected as a Member of the Board and as Chairman during the Term and for so long as Executive is willing to serve in such capacity. In such capacity, Executive shall perform such duties and responsibilities as are normally related to such position in accordance with Myriad’s by-laws and applicable law, including those services described below (“Services”), and Executive hereby agrees to use his best efforts to provide the Services. Executive shall comply with the statutes, rules, regulations, and orders of any governmental or quasi-governmental authority, which are applicable to the performance of the Services, and Myriad’s rules, regulations, and practices as they may from time-to-time be adopted or modified.
3.
Services.
Executive shall have all of the responsibilities of a Member of Myriad’s Board and its Chairman, as imposed by Delaware or other applicable law, the certificate of incorporation, as amended, and the by-laws, as amended, of Myriad. These responsibilities shall include, but shall not be limited to, the following.
3.1
Attendance at Board Meetings. Executive shall use best efforts to attend scheduled meetings of Myriad’s Board.
3.2
Acting as Fiduciary. Executive shall represent the shareholders and the interests of Myriad as a fiduciary.
3.3
Participating on Myriad’s Board. Executive shall participate as a full voting member of Myriad’s Board in setting overall objectives, approving plans and programs of operation, formulating general policies, offering advice and counsel, serving on Board Committees, and reviewing management performance.
3.4
Working with CEO. Executive shall work with Myriad’s Chief Executive Officer in the following areas.
3.4.1
Corporate planning.
3.4.1.1
Define Myriad’s goals, administrative chart, and operating protocols;
3.4.1.2
Develop a yearly corporate business plan;
3.4.1.3
Present the corporate business plan to Myriad’s Board for approval;
3.4.1.4
Organize and set the agenda for the annual shareholder’s meeting;
3.4.1.5
Choose a Chief Operating Officer and Chief Financial Officer; and
3.4.1.6
Ensure full and complete compliance with all SEC reporting requirements.
3.4.2
Promotional efforts.
3.4.2.1
Promote the Resort, Club, and Leisure Real Estate Industry using the Myriad Development and the Myriad Operational Protocols based on “Personalized Club Level Experiences and Service”;
3.4.2.2
Develop global strategy to promote the “Personalized Club Level Experiences and Service” concepts currently being developed in Tunica; and
3.4.2.3
Globally position Myriad as a premier management firm for the resort and club industry for the purposes of increasing shareholder value.
3.4.3
Financing.
3.4.3.1
Assist in the development of a financial strategy to raise capital through the sale of Myriad’s debt (“Debt Financing”) or equity (“Equity Financing”) that meet the objectives of Myriad for the physical construction and development of the approximately 500 acre Resort, Club and Leisure Real Estate business model in a manner that will allow Myriad to manage the business and have an equity position therein; and
3.4.3.2
Promote asset ownership through use of Executive’s global contacts to raise capital (debt and equity) through various means, including financial funds, lenders, equity funds, hedge funds.
4.
Executive’s Status.
4.1
Hours of Employment. The Executive will not always be employed on a full-time basis but shall devote such time, efforts, and energy to the performance of his duties under this Agreement as is reasonable and necessary under the circumstances. It shall not be a violation of this Agreement for the Executive to continue to (a) manage his personal investments and other business interests (including but not limited to the management and operation of the North Shore Spirit, a minor league professional baseball team, and Susquehanna Capital Management Group, an investment holding company), or engage in activities for, or serve, such civic, community, charitable, educational, or religious organizations as he may reasonably select, or (b) to serve on other corporate boards of directors or the advisory boards of other businesses, so long as any such engagement or service does not substantially interfere with the Executive’s performance of his duties hereunder.
4.2
Location of Employment. Myriad acknowledges that Executive performs his duties hereunder principally from his residences in Florida and Massachusetts, or during travel, with attendance as necessary at various Myriad offices or functions. Executive shall not be required to relocate his residence or establish a principal residence elsewhere at Myriad’s direction.
5.
Conflicts.
Executive represents that, to the best of his knowledge, Executive has no outstanding agreement or obligation that is in conflict with any of his obligations under the Agreement, and Executive agrees to use his best efforts to avoid or minimize any such conflict. Executive agrees not to enter into any agreement or obligation that would create such a conflict, without the approval of Myriad’s Chief Executive Officer or a majority of Myriad’s Board. Without limiting the generality of the foregoing, Executive will not, during the Term, engage in any activity that creates an actual conflict of interest
with Myriad, regardless of whether such activity is prohibited by Myriad’s conflict of interest guidelines or the Agreement, and Executive agrees to notify Myriad’s Board before engaging in any activity that creates a potential conflict of interest with Myriad. Specifically, Executive shall not, during the Term, engage in any activity that is in direct competition with Myriad or serve in any capacity (including, but not limited to, as an employee, consultant, advisor or director) in any entity that competes directly with Myriad, as reasonably determined by a majority of Myriad’s disinterested Board members, without the approval of the Chief Executive Officer or a majority of Myriad’s Board. Notwithstanding the foregoing, Myriad acknowledges that Executive’s interest and involvement in Susquehanna Capital Management Group shall not be deemed in conflict with Executive’s obligations und er the Agreement.
6.
Myriad’s Obligations,
Myriad shall make such efforts as are necessary to cooperate with Executive so that Executive can fulfill his obligations under paragraph 3 above. Myriad shall provide Executive with reasonable access to all books and records of Myriad.
7.
Compensation.
As compensation for the Executive’s services, Myriad hereby agrees to pay the Executive, and the Executive hereby agrees to accept, compensation as follows.
7.1
Base Salary. Myriad will pay to the Executive an initial base salary equal to $400,000 per annum, less applicable withholdings and deductions, payable quarterly. The first payment hereunder shall be due on _______. The Executive’s Base Salary may be increased on an annual basis, according to Myriad’s usual merit process, and also may be increased from time to time (but not decreased, other than in connection with a reduction that is part of a general cost reduction affecting at least ninety percent (90%) of the executive officers of Myriad and which does not exceed ten percent (10%) of the Executive’s then current Base Salary in the aggregate when combined with any prior reductions), with the approval of the Board based on relevant circumstances, including an increase in the value in Myriad’s stock or an increase in Myriad’s earnings or profits. Myriad ’s obligations to pay Executive his base salary pursuant to this Section 7.1, is contingent upon Myriad securing adequate financing; provided, however, that Executive’s base salary shall accrue until such time as Myriad secures any such adequate financing and such accrual shall be deemed to have commenced starting on October 1, 2006, the date specified in the 2006 Agreement.
7.2
Bonuses.
7.2.1
Financing Bonus. In the event Myriad secures Debt Financing during the Term, Executive will be entitled to receive a Financing Bonus equal to two percent (2%) of the total amount of proceeds received from such Debt Financing. In addition, in the event that Myriad secures Equity Financing during the Term, Executive will be entitled to receive a Financing Bonus equal to three percent (3%) of the total amount of proceeds received from such Equity Financing. In this context, “secure”
shall mean the closing and receipt of funds by Myriad from the applicable Debt or Equity Financing. Any bonus due hereunder shall be paid from the proceeds of said Debt or Equity Financing to Myriad at or about the time the proceeds of said financing are paid to Myriad.
7.2.2
Stock Incentive Price Bonus. Executive shall receive a Stock Incentive Price Bonus during the Term as follows.
For each $5.00 per share increase (“Benchmark”) in Myriad’s common stock beginning on the Effective Date of this Agreement, Executive shall receive a bonus of $200,000, provided that the average closing price equals or exceeds the Benchmark over any period of six consecutive months after the stock price reaches the Benchmark.
7.2.3
Annual Bonus Performance Plan. Myriad shall also pay Executive any bonuses earned under Myriad’s Annual Bonus Performance Plan for Directors and Officers (“Annual Bonus Performance Plan”). The Annual Bonus Performance Plan, together with any successor plans of Myriad is intended to comply with Section 162(m) of the Internal Revenue Code of 1986, as amended (“IRC Code”).
7.2.4
Timing of Bonus Payments. The bonuses owed Executive under paragraphs 7.2.2 and 7.2.3 shall be paid no later than March 15 following the year in which the bonus is earned. The bonus described in paragraph 7.2.4 shall be paid no later than March 15, 2008.
7.3
Restricted Stock Award.
7.3.1
Stock Award. Within thirty (30) days of the Effective Date, Myriad shall grant Executive three million (3,000,000) shares of common stock in Myriad. The certificate representing said shares shall bear appropriate transfer restriction legends as required by the Securities Act of 1933 and other applicable law. Executive acknowledges that he is acquiring said shares for investment and not with a view to the distribution thereof and that he is fully aware and able to understand the inherent risks involved with owning restricted stock. Subject to termination of Executive as provided herein, Executive shall be granted one million (1,000,000) shares of restricted common stock on each of the first, second and third anniversaries of the date of this Agreement.
7.3.2
Right of First Refusal – Sale by Executive. In the event Executive chooses to sell or otherwise liquidate or dispose of all of any part of the restricted stock granted under paragraph 7.3.1 at any time prior to that date which is two years after the date the stock was granted (and such sale or disposition is to be made in accordance with applicable securities laws), the following conditions shall apply:
7.3.2.1
Written notice of the Executive’s intent to sell his stock and the number of shares he intends to sell shall be given to the Board (“Notice of Intent”); and
7.3.2.2
For a period of thirty (30) days following the date of the Notice of Intent, Myriad shall have the right to repurchase the stock at its closing price on the actual date of purchase.
7.3.2.3
The obligations created under this paragraph 7.3.2 shall survive termination of this Agreement.
7.3.3
Right of First Refusal – Termination of Executive. In the event Myriad terminates Executive’s employment for Cause (as defined in paragraph 10.2.2 hereof), and/or in the event Executive voluntarily terminates his employment, Myriad shall have the right, for a period of thirty (30) days following the date of such termination, to repurchase all of the restricted shares granted to Executive under paragraph 7.3.1 on the following conditions:
7.3.3.1
Written notice of Myriad’s intention to repurchase the stock shall be given to Executive within thirty (30) days following the date of Executive’s termination (“Notice to Purchase”);
7.3.3.2
Myriad shall repurchase the shares within thirty (30) days following the Notice to Purchase at their closing price on the date of Executive’s termination; and
7.3.3.3
For purposes of this paragraph 7.3.3, the date of Executive’s termination shall be Executive’s last day of active employment by Myriad.
7.3.3.4
The obligations created under this section 7.3.3 shall survive termination of this Agreement.
7.4
Intentionally Deleted.
7.5
Benefits: During the Term, Executive shall be entitled to benefits as follows.
7.5.1
Medical/Dental/Vision/Disability. Executive shall receive family plan medical, dental, and vision insurance and short-term and long-term disability insurance in accordance with the benefit plans established by Myriad for its senior executives (as may be amended from time to time in Myriad’s sole discretion) to the extent allowed under the terms of such plans and Myriad shall pay all premiums for coverage of Executive and his family under said plans.
7.5.2
Senior Executive Benefits. Executive shall also be eligible to participate in any additional benefit plans generally available to Myriad’s senior executives to the extent allowed by the benefit plans established by Myriad, which may be amended or terminated at any time in Myriad’s sole discretion, except that Executive shall not be entitled to any paid vacation leave.
7.5.3
Life Insurance. Myriad shall maintain and pay all premiums on life insurance policies on Executive’s life in the aggregate amount of $2,000,000. Myriad shall designate the Executive’s estate (or such other individual(s) or entities as may be directed by Executive) as beneficiary with respect to fifty percent (50%) of the death benefits, and Myriad as beneficiary with respect to the remaining fifty percent (50%) of the death benefits.
7.5.4
Automobile. Myriad will pay to Executive on the first day of each month during the Term, a monthly automobile allowance of $1,000 to help defray the costs associated with Executive’s acquisition (by lease or otherwise) of an automobile and the insurance and maintenance thereof.
7.5.5
Reimbursement of Expenses. Executive is authorized to incur various business expenses customarily incurred by persons holding like positions, including but not limited to those for travel (to include the use of corporate jets at an hourly rate not to exceed $3,500) and entertainment and similar expenses (with total expenses not to exceed $50,000 per month for all expenses) in connection with the promotion of Myriad’s business and the performance of Executive’s Services. Myriad shall reimburse Executive for all allowable expenses from time-to-time, at Executive’s request, and Executive shall account to Myriad for such expenses. In the event that Executive mistakenly submits and Myriad pays for expenses that are properly classified as a personal expense, Executive agrees to reimburse Myriad for such personal expenses paid on Executive’s beh alf.
8.
Confidential Information.
Except in the performance of his Services hereunder, at no time shall Executive divulge, furnish, or make accessible to any person any information of a confidential or propriety nature, outside of information normally made available to the public (brochures, web-site literature, SEC reports, etc.) obtained by him while serving as a Member of the Board and/or its Chairman. Upon the termination of the Agreement, Executive shall return to Myriad all confidential information which exists in written or other physical form and all copies thereof in his possession or under his control, and shall otherwise continue to protect all confidential or proprietary information of Myriad.
9.
Indemnification.
Myriad shall indemnify and defend Executive to the fullest extent authorized in Myriad’s certificate of incorporation, as amended, its by-laws, as amended, and applicable law and shall advance expenses to Executive as provided therein and shall not alter, modify, or amend any provisions of Myriad’s certificate of incorporation or by-laws related to indemnification of officers and directors or the advancement of expenses so as to materially or adversely affect Executive’s rights hereunder without Executive’s prior written consent. Myriad confirms that its certificate of incorporation, as amended, provides for the advancement of expenses to directors and officers with respect to claims covered by section 145 of the General Corporation Law of the State of Delaware, as amended. Myriad will have purchased and shall maintain in full force and effect during the Term, Director’s and Officer’s liability insurance, and Executive shall be entitled to the protection of any insurance policies that Myriad maintains for the benefit of its Directors and Officers against all costs, charges and expenses in connection with any action, suit or proceeding to which he may be made a party by reason of his affiliation with Myriad, its subsidiaries, or affiliates. The provisions of this paragraph shall survive the termination of the Agreement.
10.
Termination.
The Executive’s employment with Myriad may terminate as follows:
10.1
Termination By Executive.
10.1.1
Voluntary Termination. During the Term, the Executive may voluntarily terminate his employment upon not less than thirty (30) days written notice to Myriad; provided, that Myriad may accelerate the Executive’s employment termination date to the date on which the Executive gives Myriad notice of termination or on any date between the date of such notice and the termination date stated in such notice. Notwithstanding any such acceleration, Executive shall continue to be paid his Base Salary pursuant to the terms of the Agreement for the full thirty (30) day period following such written notice.
10.1.2
Good Reason Termination. Notwithstanding paragraph 10.1.1, the Executive may terminate his employment for “Good Reason” at any time upon not less than thirty (30) days written notice to Myriad. For this purpose, “Good Reason” shall be deemed to exist if there is a material negative change to Executive in his relationship with Myriad, including (i) a material diminution in the duties, and/or responsibilities, and/ or authority of the Executive, or Myriad determines that the Executive should report to a person or group other than the Board (“Material Diminution”); (ii) Myriad requires the Executive to move to any location of Myriad (“Relocation”); (iii) there is a willful failure or refusal by Myriad to perform any material obligation under the Agreement; or (iv) there is a reduction in the Executive’s Base Salary other t han a reduction that is part of a general cost reduction affecting at least ninety percent (90%) of the
executive officers of Myriad and which does not exceed ten percent (10%) of the Executive’s then current Base Salary in the aggregate when combined with any such prior reductions. In the case of any alleged event under subsections (i) through (iv) hereof, Executive shall provide Myriad with written notice of the grounds for a Good Reason termination, as set forth above, within ninety (90) days of the initial existence of the condition, and Myriad shall have a period of thirty (30) days to cure after receipt of the written notice. In the absence of timely cure, Executive’s employment shall be deemed to terminate at the conclusion of the thirty (30) day cure period. Resignation by Executive following Myriad’s cure or before the expiration of the thirty (30) day cure period shall constitute a voluntary termination and not a termination for Good Reason.
10.2
Termination by Myriad.
10.2.1
Without Cause Termination. Myriad may terminate the Executive’s employment without cause upon not less than thirty (30) days prior written notice to the Executive. In the event Executive is not reelected to the Board of Directors and designated as Chairman as provided in paragraph 2 of this Agreement, or Executive shall be removed as Chairman or Director as provided in Myriad’s certificate of incorporation, as amended, its by-laws, as amended, or applicable law (other than for Cause as defined in paragraph 10.2.2 below), Executive’s employment under this Agreement shall be deemed terminated by Myriad without Cause under this paragraph 10.2.1.
10.2.2
For Cause Termination. Notwithstanding paragraph 10.2.1, Myriad may terminate the Executive’s employment for “Cause” at any time upon written notice to the Executive. For this purpose, “Cause” shall be deemed to exist if (i) Myriad determines in good faith and following a reasonable investigation that the Executive has committed fraud, theft, or embezzlement from Myriad or any of its affiliates; (ii) the Executive pleads guilty or nolo contendere to or is convicted of any felony or other crime involving moral turpitude, fraud, theft, or embezzlement; or (iii) the Executive willfully fails or refuses to perform any material obligation under the Agreement or to carry out the reasonable directives of the Board consistent with his duties under paragraph 3, and the Executive fails to cure the same within a period of thirty (30) days after w ritten notice of such failure is provided the Executive by Myriad.
10.2.3
Death/Permanent Disability. The Executive’s employment under this Agreement shall terminate upon the Executive’s death. In addition, the Executive’s employment under this Agreement shall terminate in the event of the Executive’s permanent disability. Permanent disability shall occur if the Executive is unable to perform his duties for a period of three (3) months in any six (6) month period, as determined by a doctor or doctors selected by the Board and Executive, supported by the completion of a
medical certification form by such doctor or doctors that outlines the disability and treatment.
11.
Compensation and Benefits Upon Termination.
11.1
Payment Obligations. Upon voluntary termination of the Executive’s employment or termination of the Executive’s employment by Myriad for Cause, not later than thirty (30) days after the date of such termination, Myriad will pay to the Executive the following (collectively, the “Accrued Obligations”): (i) all Base Salary, at the rate then in effect, through the date of the Executive’s termination of active employment; (ii) all bonuses owed under paragraphs 7.2.1, and 7.2.2; (iii) any unpaid bonus earned under paragraph 7.2.3 for any previous completed fiscal year; (iv) unpaid or unreimbursed expenses owed under paragraphs 7.5.4 and 7.5.5; and (v) all other accrued and vested benefits under any applicable Myriad employee benefit plans in which the Executive participates (which benefits shall be paid at such time or times as set forth in the governing plan or arrangement and any election by the Executive permitted under such governing plan or arrangement, to the extent permitted without penalty under applicable tax law), including any other accrued and unpaid or unreimbursed benefits provided under paragraphs 7.5.1, 7.5.2, or 7.5.3.
11.2
Adjusted Payments – Good Reason Termination by Executive or Termination by Myriad Without Cause. Upon the termination of the Executive’s employment by the Executive for Good Reason or by Myriad without Cause, Myriad will continue to pay Executive his Base Salary through the greater of (i) the balance of the Term and (ii) one (1) year following the date of termination. Said Base Salary will accrue from and after termination and be paid on the next quarterly period established for payment of Executive’s Base Salary, but in all events not prior to the date that is six months after termination. In addition, Myriad will pay to the Executive, not later than thirty (30) days following termination, all Accrued Obligations as well as a pro rata portion of any bonus due under paragraph 7.2.3, based upon the proportionate number of full weeks actuall y worked during the year in which Executive’s employment was terminated. The Executive shall remain eligible for payment of the financing bonus and the stock incentive price bonus under paragraphs 7.2.1 and 7.2.2 for the remainder of the Term as fully as if Executive had not terminated his employment for Good Reason or been terminated without Cause. All bonuses, to the extent due, shall be paid in accordance with the provisions of paragraph 7.2.5.
11.3
Additional Payments – Termination for Death or Disability. In the event of a termination by Myriad due to the Executive’s death or disability, the Executive or his designated beneficiary or estate, if applicable, shall receive all amounts due pursuant to paragraph 11.1.
11.4
Termination – Medical Benefits – COBRA Rights. Upon the termination of the Executive’s employment for any reason, to the extent that the Executive qualifies at the time and to the extent that such coverage is available to any qualified beneficiary at the time, the Executive will be allowed to elect individual and dependent continuation group health and dental coverage, as provided under Section 4980B(f) of the Internal Revenue Code (“COBRA”), for the maximum COBRA coverage period available, subject to all conditions and limitations (including payment of premiums and cancellation of coverage upon obtaining duplicate coverage or Medicare entitlement). The Executive (or dependents, as applicable) shall be responsible for paying the full cost of the COBRA coverage.
11.5
Miscellaneous. The Agreement shall not be deemed to abridge the pertinent requirements of Delaware law or Myriad’s corporate governing documents. Accordingly, Executive may be removed as Chairman or Director as provided in Myriad’s certificate of incorporation, as amended, its by-laws, as amended, or applicable law. Similarly, Executive may resign as Chairman or as Myriad Director, as provided in Myriad’s Certificate of Incorporation, as amended, its by-laws, as amended, and applicable law. Notwithstanding anything to the contrary contained in or arising from the Agreement or any statements, policies, or practices of Myriad, neither Executive nor Myriad shall be required to provide any advance notice or any reason or cause for termination of Executive’s status as Chairman or a Director, except as provided in Myriad’s certificate of incorporation, as amended, its by-laws, as amended, or applicable law. The removal or resignation of Executive as Chairman or Director, however, shall not abridge any rights of the parties under this Agreement as a consequence of any such action.
12.
Executive’s Obligations Upon Termination.
12.1
Return of Property. Executive agrees that all property, including, without limitation, all equipment, tangible proprietary information, documents, records, notes, contracts, and computer generated materials provided to or prepared by Executive incident to his services belong to Myriad and shall be promptly returned at the request of Myriad.
12.2
Resignation from Office. Upon termination of this Agreement, Executive shall be deemed to have resigned from all offices then held with Myriad (except that Executive shall continue to serve as a Member of the Board, if so elected). Executive agrees that following any termination of this Agreement, he shall cooperate with Myriad in the winding up or
transferring to other directors of any pending work and shall also cooperate with Myriad (to the extent allowed by law, and at Myriad’s expense) in the defense of any action brought by any third party against Myriad that relates to Executive’s Services.
13.
Change in Control Benefits.
13.1
Definition of Change of Control. A “Change of Control” shall mean any of the following events: (i) the dissolution or liquidation of Myriad, (ii) any merger or consolidation of Myriad with one or more corporations where immediately following the close of such transaction, the stockholders of Myriad immediately prior to such transaction do not own at least fifty percent (50%) of Myriad’s (or the surviving or resulting entity’s) outstanding capital stock immediately after such transaction, (iii) a sale of substantially all of the assets of Myriad or fifty percent (50%) or more of the then outstanding shares of capital stock of Myriad to another corporation or entity, or (iv) the election of a Board of Directors, the majority of which is not supported by the management of Myriad.
13.2
Acceleration of Options upon a Change in Control. In the event that (i) Executive’s employment is terminated without Cause at any time following a Change in Control or (ii) Executive resigns for Good Reason at any time following a Change of Control, then all Options issued to Executive in connection with the Agreement and any other options, or shares of restricted stock, or other equity incentives then held by Executive that have not yet vested shall immediately vest. All other terms and conditions set forth in the Options, the Plan, and applicable notices of stock option grant, stock option agreements, and restricted stock agreements, if applicable, shall remain in full force and effect.
14.
Myriad’s Representations.
Myriad represents to Executive that as of the date of execution of the Agreement, and during all times prior to the execution of the Agreement, it has acted, and its business operations have been undertaken, in full compliance with Myriad’s certificate of incorporation, as amended, and its by-laws, as amended, and with the statutes, both state and federal, rules, regulations, and orders of any governmental or quasi governmental authority, that are applicable to Myriad’s business operations.
15.
Binding Agreement.
This Agreement shall be binding upon and inure to the benefit of Executive, his heirs, and assigns, and to Myriad, its successors and assigns. This Agreement contains the entire agreement of the parties with respect to Executive’s service as Chairman and/or a member of Myriad’s Board, and this Agreement supersedes all prior agreements or understandings among the parties related to said services. In furtherance of the foregoing, the parties affirm that the agreement dated as of August 10,
2006 between them is hereby terminated, and that its terms, to the extent they had any prospective application beyond the date of this Agreement, are null and void.
16.
Entire Agreement; Amendment; Waiver
No amendment or modification of this Agreement shall be valid unless evidenced by a written instrument executed by the parties hereto. No waiver by either party of any breach by the other party of any provision or condition of this Agreement shall be deemed a waiver of any similar or dissimilar provision or condition at the same or any prior or subsequent time.
17.
Governing Law.
This Agreement shall be governed by and construed under and in accordance with the laws of the State of Delaware without regard to principles of conflicts of laws; and the laws of that state shall govern all of the rights remedies, liabilities, powers, and duties of the parties hereunder. Any legal action or proceeding with respect to the Agreement shall be brought exclusively in the federal or state courts of the State of Delaware, and by execution and delivery of this Agreement, Executive and Myriad irrevocably consent to the jurisdiction of those courts. Executive and Myriad irrevocably waive any objection, including any objection to the venue or based on the grounds of forum non conveniens, that either may now or hereafter have to the bringing of any action or proceeding in such jurisdiction in respect of this Agreement or any transaction related hereto.
18.
Notices.
All notices and other communications hereunder shall be in writing and shall be deemed to have been given if delivered personally, by registered or certified mail (return receipt requested), postage prepaid, or by overnight courier to the parties to this Agreement at the following addresses or at such other address for a party as shall be specified by like notice:
If to Executive:
Nicholas A. Lopardo
47B Dana Road
Boxford, Massachusetts 01921
With a copy to:
Russell F. Conn, Esq.
Conn Kavanaugh Rosenthal Peisch & Ford, LLP
Ten Post Office Square
Boston, MA 02109
and
Roger Wade
G.W. Wade & Company
93 Worcester Road
Wellesley, MA 02481
If to Myriad:
Myriad Entertainment and Resorts, Inc.
987 Harris Street
Tunica, Mississippi 38676
Attn: Senior Director Vice President and Chief of Operations
With a copy to:
Peter Gennuso, Esq.
Gersten Savage LLP
600 Lexington Avenue, 9th Floor
New York, NY 10022
All such notices and communications shall be deemed to been received on the date of personal delivery or delivery by overnight courier, as the case may be.
19.
Miscellaneous.
19.1
Withholdings. All amounts payable hereunder shall be subject to the withholding of all applicable taxes and deductions required by any applicable law.
19.2
Headings. The descriptive headings in the Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of the Agreement. The use of the word “including” shall be by way of example rather than by limitation.
19.3
Counterparts. The Agreement may be executed in two or more counterparts, all of which taken together shall constitute one instrument.
19.4
Severability. If any portion of the Agreement is held unenforceable or inoperative for any reason, such portion will not affect any other portion of the Agreement, and the remainder will be as effective as though the ineffective portion had not been contained in the Agreement.
19.5
Professional Fees. The Executive shall be entitled to be reimbursed for the costs and expenses of his counsel and his tax/financial advisors incurred in the preparation of the Agreement, up to a maximum amount of $50,000.
19.6
Golden Parachute Excise Tax Gross-Up. If it shall be determined that any payment to the Executive pursuant to the Agreement or any other payment or benefit from Myriad, any affiliate, any shareholder of Myriad, or any other person would require the Executive to pay the excise tax imposed by Section 4999 (the “Excise Tax”) of the Internal Revenue Code of 1986, as amended (the “Code”) on such payment or benefit, Myriad will pay the Executive a Tax Gross-Up Payment (as defined below) with respect to such Excise Tax. “Tax Gross-Up Payment” means an amount payable to the Executive such that, after payment of Taxes (as defined below) on such amount, there remains as balance sufficient to pay the Excise Tax being reimbursed. “Taxes” means the incremental United States federal, state, and local income, excise and other taxes payable by the Execu tive as a result of the Executive’s receipt of the Tax Gross-Up Payment. All legal and accounting fees (including, without limitation, such reasonable fees incurred by the Executive in retaining counsel and/or other advisors for this purpose) for the determination of the imposition of the Excise Tax, enforcement, the calculation of the Tax Gross-Up Payment, review of such calculations, or related matters shall be paid by Myriad.
19.7
Code Section 409A. It is intended that this Agreement, any amounts payable under the Agreement, and Myriad’s and the Executive’s exercise of authority or discretion under the Agreement shall comply with Section 409A of the Code (including the Treasury regulations and other published guidance relating thereto) so as not to subject the Executive to the payment of any penalty, interest, or additional tax imposed under Section 409A of the Code. To the extent the Agreement, any operations under the Agreement or any amount payable under the Agreement would trigger any obligation imposed by Code Section 409A and notwithstanding anything in this Agreement to the contrary, this Agreement shall be modified first to avoid such obligation and second, to the extent permitted by the first objective, in such a manner as to preserve the economic benefit of the Agreement for Executive.
19.8
Executive Acknowledgment. Executive acknowledges that Executive has had the opportunity to consult legal counsel concerning the Agreement, that he has read and understands the Agreement, that Executive is fully aware of its legal effect, and that he has entered into it freely based on his own judgment and not on any representations or promises other than those contained in the Agreement.
IN WITNESS WHEREOF, the parties have executed the Agreement as of the date first written above.
Myriad Entertainment and Resorts, Inc. |
| Nicholas A. Lopardo | |
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