展品10.1
格式
(RSU獎勵--沒有績效標準)
(RSU獎勵--沒有績效標準)
美高梅國際
(對Katrina S. Lindsey的補償獎勵)
(對Katrina S. Lindsey的補償獎勵)
受限股單位數量：
本協議（包括其附件，「協議」）由美高梅國際公司（下稱「公司」）和 （「參與者」）於生效日期 （「生效日期」）
前言
A. 公司董事會（「董事會」）已通過了公司的2022年全面激勵計劃，經修改後（「計劃」），該計劃提供給選定的服務提供商發放受限制的股票單位（如本協議第1節中定義的術語）。本協議中使用但未定義的大寫字母術語應與計劃中的含義相同。
董事會認爲，授予限制性股票單位將激發選定僱員對公司、母公司或子公司（如下文所定義）的興趣，並加強他們留任下去的願望。
董事會人力資本與薪酬委員會（「委員會」）已經根據計劃和本協議的條款，授權向參與者授予限制性股票單位。
D. 委員會和參與者意圖是，計劃和本協議構成雙方就本協議所涉主題達成的整個協議，並取代任何其他協議、陳述或諒解（無論口頭還是書面，無論明示還是暗示，包括但不限於參與者與公司或其關聯公司（包括但不限於任何母公司或子公司）之間涉及本協議所涉主題的任何僱傭協議，無論此類協議是在此之前、目前有效或將來簽訂的）。
根據本協議中包含的雙方約定，各方如下同意：
1. 定義。
1.1「業務聯繫人」指任何人員、廣告商、供應商、賣方、獨立承包商、經紀人、合作伙伴、員工、實體、顧客或客戶的姓名、地址、聯繫信息或與僱主交易祕密無關的任何信息，根據下文第3.10節的規定，僱主受到保護，不得披露；這些人員、廣告商、供應商、獨立承包商、經紀人、合作伙伴、員工、實體、顧客或客戶可能是參與者在離開僱主工作的最後一天後的六個月內，參與者以任何方式、直接或間接地聯繫或試圖聯繫的人員，或者僱主合理預期參與者在僱主工作期間會聯繫或試圖聯繫的人員。
1.2 「代碼」指的是1986年修訂版的《內部稅收法典》。
1.3「競爭對手」指任何直接或間接通過關聯公司從事或擬從事發展、擁有、運營或管理（i）arvr遊戲設施；（ii）會議或會議設施；或（iii）一個或多個酒店，如果任何這樣的酒店在任何方面與遊戲場所以任何方式連接，無論是物理上還是通過業務聯營，並且，進一步，如果競爭對手的活動在距離僱主擁有的任何地點的任何上述設施、酒店或場所所在地的150英里半徑內進行，或擬由僱主擁有、運營、管理或開發。
1.4「保密信息」指所有交易祕密、業務聯繫人、業務慣例、業務流程、財務信息、合同關係、營銷慣例和程序、管理政策和程序、僱主或其他相關僱主運營的或交易祕密的信息，以及僱主成員的信息，以及所有保存或記錄在任何數據庫、文件或報告中的信息，如本合同或任何其他忠誠度、酒店、賭場或其他客戶數據庫或系統中的信息，無論參與者是否在僱主任職期間使用該信息。 附件B 不論參與者在僱主任期間是否使用，這裏或任何其他忠誠度、酒店、賭場或其他客戶數據庫或系統中的信息，均屬於保密信息的範疇。
1.5「當前僱傭協議」是指參與者與公司或其關聯公司（包括但不限於任何母公司或子公司）在確定日期生效的僱傭協議。
1.6 「殘疾」指參與者因任何可通過醫學確定的身體或精神缺陷而無法從事任何實質性盈利活動，預計將導致死亡或預計將持續不少於十二（12）個月，或因任何可通過醫學確定的身體或精神缺陷而無法從事任何實質性盈利活動，預計將導致死亡或預計將持續不少於十二（12）個月，而根據僱主的僱員事故和健康計劃，已連續不少於三（3）個月接受收入替代福利。
1.7 「僱主」指公司、子公司、任何母公司和關聯公司。
1.8「僱主正當理由」應具有《現行僱傭協議》中定義的含義或相應術語；但如果沒有《現行僱傭協議》，或者該協議不包含該術語或相應術語，則「僱主正當理由」指：
A. 參與者未遵守僱主的政策和程序，行爲不端、不順從，忽視僱主的業務，未能按照僱主高管制定的標準履行參與者所需履行的職責，或對現行就業協議進行實質性違約，該失敗或違約如未在僱主書面通知參與者指明所指的事實和情況後十（10）天內得到參與者的解決，則參與者未得到該期限內得到僱主書面通知的情況及出現的該失誤或違約的事實和情況解決後， 在每種情況下，該B類股東和/或該B類股東的家庭成員需獨立控制在此類帳戶、計劃或信託中持有的B類普通股實時；, 公司對於以下情況，不應承擔責任：根據第10（b）部分書面信息可靠地提供。，如果董事會憑良好信念判斷，該違約不可能在十（10）天內得到解決則無需提供此類通知和解決機會；
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b. 參與者未能或無法申請並獲得僱主或任何監管機構要求參與者獲得的任何許可證、資格、許可或其他類似批准。
僱主受內華達州、密歇根州、密西西比州、伊利諾伊州、澳門特別行政區或僱主參與arvr遊戲業務的其他司法管轄區的任何政府機構的指示，要求終止與參與者的業務。
僱主以其合理判斷認爲，參與者已經參與，正在參與或可能參與任何可能危及僱主業務、聲譽或從事業務的許可的活動、關係或情況；
E. 如果由於參與者受僱於僱主或由於參與者的行爲，僱主的任何遊戲業務許可證受到威脅被拒絕、受到限制、暫停或撤銷。
1.9 「公平市場價值」是指有關確定日期，紐約證交所（「紐交所」）或其他適用的成熟證券交易所或場外市場報告的一股股票的收盤價，或者如果在該日期沒有報告收盤價，則是在相關確定日期立即前的第一個交易日上報告的收盤價。如果要求確定其價值時，股票未公開交易，其公平市場價值的確定將由委員會以適當方式進行。
1.10「母公司」指《法典》第424(e)條中定義的母公司。
1.11「參與者的正當理由」應具有「現行僱傭協議」中規定的該術語或類似術語的含義；但是，如果沒有現行僱傭協議或者該協議不包括該術語或類似術語，則「參與者的正當理由」指：
A. The failure of the Employer to pay the Participant any compensation when due; or
B. A material reduction in the scope of duties or responsibilities of the Participant or any reduction in the Participant’s salary.
If a breach constituting Participant’s Good Cause occurs, the Participant shall give the Employer thirty (30) days’ advance written notice specifying the facts and circumstances of the alleged breach. During such thirty (30) day period, the Employer may either cure the breach (in which case such notice will be considered withdrawn) or declare that the Employer disputes that Participant’s Good Cause exists, in which case Participant’s Good Cause shall not exist until the dispute is resolved in accordance with the methods for resolving disputes specified in Exhibit A hereto.
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1.12 “Restricted Stock Unit” means an award granted to a Participant pursuant to Article 8 of the Plan, except that no shares of Stock are actually awarded or granted to the Participant on the date of grant.
1.13 “Restrictive Period” means the twelve (12) month period immediately following the Participant’s date of termination.
1.14 “Retirement” means termination of employment with the Employer at a time when Participant’s age plus years of service with the Employer is equal to or greater than 65; provided that, (i) Participant is at least age 55, (ii) Participant has at least 5 years of service with Employer and (iii) Participant has given the Employer at least ninety (90) days’ notice of termination.
1.15 “Section 409A” means Section 409A of the Code, and the regulations and guidance promulgated thereunder to the extent applicable.
1.16 “Stock” means the Company’s common stock, $.01 par value per share.
1.17「子公司」是指根據法典第424(f)條的規定定義的公司子公司，或公司或其他實體，無論是國內還是國外，在這些公司擁有或獲得超過百分之五十（50%）的所有權利或由於股權或其他方式。
1.18 「商業祕密」 a重新定義的方式符合對內華達州法律的最廣泛解釋。商業祕密應包括但不限於機密信息、配方、發明、模式、彙編、供應商名單、客戶名單、合同、商業計劃和慣例、營銷計劃和慣例、財務計劃和實踐、計劃、設備、方法、專有技術、技術或流程，其中任何一種可能或可能具有經濟價值的行爲都是由於其他可能或可能的人員不普遍知悉或無法通過適當手段輕易查明而獲得當前或潛在的經濟價值從其披露或使用中獲得任何經濟價值，包括但不是僅限於公衆。
1.19 「解禁期」是指本協議簽訂之日起至下文第3.1節描述的最後預定解禁日期之間的時間段。
2. 授予參與者公司特此根據計劃和本協議的條款和條件，授予參與者一定數量的限制性股票單位。 除非計劃或本協議另有規定，（i）每個限制性股票單位代表在該限制性股票單位獲得釋放後收到一（1）股股票的權利，（ii）除非並直到按照本協議的條款規定限制性股票單位獲得釋放，參與者將沒有任何權利要求交付該限制性股票單位基礎的股票或任何其他相關考慮，和（iii）獲得釋放的每個限制性股票單位應在限制性股票單位獲得釋放的日期後三十（30）天內支付給參與者，或適用的第3.1和3.2節規定的日期。
3. 條款和條件.
3.1 分配時間表根據第3.2節規定，受限股票單位將根據以下(i)至(iii)規定的方式獲得，前提是參與者在以下(i)至(iii)所指定的日期繼續受僱於公司或任何子公司或母公司：
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(i) 第一期應包括受限制股票單位的三分之一股份，並應在生效日期一週年後生效生效日期的第一個週年（「倉庫服務期」）。初始歸屬日期”).
（ii）第二期股票分期付款將由限制性股票單位佔股的三分之一組成，並將於初始分期日期的第一週年解禁。
（iii）第三期應包括限制性股票單位所屬股票的三分之一，並應在初始認股日期的第二週年成熟；
在每種情況下，該B類股東和/或該B類股東的家庭成員需獨立控制在此類帳戶、計劃或信託中持有的B類普通股實時；根據第3.1節規定的時間表，任何受限股票單位在其約定的時間表下獲得後，應在適用分期獲得後的30天內支付給參與者。
3.2 終止時的分配終止與僱主的僱傭關係後，受限股票單位的未分配部分將被沒收，且不予任何補償； 在每種情況下，該B類股東和/或該B類股東的家庭成員需獨立控制在此類帳戶、計劃或信託中持有的B類普通股實時；, 公司對於以下情況，不應承擔責任：根據第10（b）部分書面信息可靠地提供。如果，（i）僱主無正當理由終止僱傭關係或參與者有正當理由終止僱傭關係，根據本文第3.1節確定的計劃，在終止僱傭關係之日起十二（12）個月內應成爲有效的限制股票單位應繼續存在，且按照本文第3.1節確定的相同計劃支付；（ii）參與者因退休而終止僱傭關係，只要終止日期距離生效日期至少六個月，則所有未分配的限制股票單位應繼續存在，且按照本文第3.1節確定的相同計劃支付；（iii）參與者因死亡或傷殘而終止僱傭關係，所有未分配的限制股票單位應立即變爲有效，並在終止日期後三十（30）天內支付給參與者。如果參與者在公司或其關聯方就業協議或以下第3.10節所載明的任何終止後契約中違反任何規定後，前述句子中規定的任何繼續分配應立即停止，未分配的限制股票單位應被沒收（考慮到任何適用的糾正期）。
儘管本協議中有任何相反規定，如果參與者在解僱時符合既定的退休解僱資格（不考慮90天通知要求），並且僱主不基於僱主無正當理由的解僱，參與者將被允許指定是否參與者的僱傭是由於參與者的退休還是僱主無正當理由的解僱。
3.3 委員會有自行決定權委員會可以自行決定，隨時加快解禁參與者未解限制股票單位餘額的速度，或者某個更小的部分，但須遵守計劃和本協議的條款。如果加快解禁，未解限制股票單位將被視爲已於委員會指定的日期或適用書面協議之日期解鎖，但如果此加快使本協議不符合第409A條，則委員會無權加快任何款項的支付。
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3.4 股東權利和股利等同權益.
（i）參與者在受限制股票單位所涉及的股票股份獲得解禁併發行並被公司或其過戶代理商或註冊員記錄之前，將不享有任何股東權利。
(ii) 儘管前述規定，每個受限制的股票單位應當積累股息等同於在授予日期到交付該等受限制的股票單位的日期間將否則支付給基礎股票的股息。 任何此類股息等同應被視爲立即在相關股息支付日期以基於當時的公允市值的額外完整和碎股的形式再投資，並應受制於適用於支付此類股息等同的受限制的股票單位的相同獲授權、結算和其他條件。 任何碎股應在這類受限制的股票單位成熟時以現金支付。
3.5 轉讓限制根據本協議授予的受限制股票單位只能轉讓給由參與者或參與者的配偶控制資產管理的信託。就已經轉讓給信託的受限制股票單位而言，本協議中提到與此類受限制股票單位相關的歸屬一詞應被視爲包括該信託。任何受限制股票單位的轉讓應受計劃和本協議的條款和條件約束，受讓人應受相同的條款和條件，就好像它是參與者。參與者在本協議項下的任何權益均不得受到附着、執行、扣押、扣押、破產法律或任何其他法律或衡平程序的約束。
3.6 Adjustments. If there is any change in the Stock by reason of any stock dividend, recapitalization, reorganization, merger, consolidation, split-up, combination or exchange of shares of Stock, or any similar change affecting the Stock the Committee will make appropriate and proportionate adjustments (including relating to the Stock, other securities, cash or other consideration which may be acquired upon vesting of the Restricted Stock Units) that it deems necessary to the number and class of securities subject to the Restricted Stock Units and any other terms of this Agreement. Any adjustment so made shall be final and binding upon the Participant.
3.7 No Right to Continued Performance of Services. The grant of the Restricted Stock Units does not confer upon the Participant any right to continue to be employed by the Company or any of its affiliates (including, without limitation, any Parent or Subsidiary) nor may it interfere in any way with the right of the Company or any of its affiliates (including, without limitation, any Parent or Subsidiary) for which the Participant performs services to terminate the Participant’s employment at any time.
3.8 Compliance With Law and Regulations. The grant and vesting of Restricted Stock Units and the obligation of the Company to issue shares of Stock under this Agreement are subject to all applicable federal and state laws, rules and regulations, including those related to disclosure of financial and other information to the Participant and to approvals by any government or regulatory agency as may be required. The Company shall not be required to issue or deliver any certificates for shares of Stock prior to (A) the listing of such shares on any
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stock exchange on which the Stock may then be listed and (B) the completion of any registration or qualification of such shares under any federal or state law, or any rule or regulation of any government body which the Company shall, in its sole discretion, determine to be necessary or advisable.
3.9 Corporate Transaction. Upon the occurrence of a reorganization, merger, consolidation, recapitalization, or similar transaction, unless otherwise specifically prohibited under applicable laws or by the applicable rules and regulations of any governing governmental agencies or national securities exchanges, the Committee is authorized (but not obligated) to make adjustments in the terms and conditions of the Restricted Stock Units, including without limitation the following (or any combination thereof): (i) continuation or assumption of the Restricted Stock Units by the Company (if it is the surviving company or corporation) or by the surviving company or corporation or its parent; (ii) substitution by the surviving company or corporation or its parent of an award with substantially the same terms for the Restricted Stock Units; (iii) accelerated vesting with respect to the Restricted Stock Units immediately prior to the occurrence of such event and payment to the Participant within thirty (30) days thereafter; and (iv) cancellation of all or any portion of the Restricted Stock Units for fair value (in the form of cash or its equivalent (e.g., by check), other property or any combination thereof) as determined in the sole discretion of the Committee and which value may be zero (if the value of the underlying stock is zero), and payment to the Participant within thirty (30) days thereafter.
3.10 Participant Covenants. The Participant acknowledges that, in the course of performing his or her responsibilities to the Employer, the Participant will form relationships and become acquainted with Confidential Information. The Participant further acknowledges that such relationships and the Confidential Information are valuable to the Employer, and the restrictions on his or her future employment contained in this Section 3.10, if any, are reasonably necessary in order for the Employer to remain competitive in its various businesses. In consideration of the benefits provided under this Agreement (including, but not limited to, the potential vesting continuation or acceleration under Section 3.2 hereof), and in recognition of the Employer’s heightened need for protection from abuse of relationships formed or Confidential Information garnered during the Participant’s employment with the Employer, Participant hereby agrees to the following covenants as a condition of receipt of the benefits provided under this Agreement:
(i) Non-Competition. During the entire Restrictive Period, the Participant shall not directly or indirectly be employed by, provide consultation or other services to, engage in, participate in or otherwise be connected in any way with any “Competitor” in any capacity that is the same, substantially the same or similar to the position or capacity (irrespective of title or department) as that held at any time during Participant’s employment with the Company. During the entire Vesting Period, if the Participant directly or indirectly becomes employed by, provides consultation or other services to, engages in, participates in or otherwise becomes connected in any way with any “Competitor”, the continued vesting provided for under Section 3.2 of this Agreement will immediately terminate and all of such Participant’s then outstanding Restricted Stock Units will immediately terminate and be forfeited as of the date Participant becomes employed by or otherwise associated in any way with a Competitor.
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(ii) Non-Solicitation. In addition, during the Restrictive Period under this Section 3.10: (A) the Participant will not call on, solicit, induce to leave and/or take away, or attempt to call on, solicit, induce to leave and/or take away, any Business Contacts of Employer, and (B) the Participant will not approach, solicit, contract with or hire any current Business Contacts of Employer or entice any Business Contact to cease his/her/its relationship with Employer or end his/her employment with Employer, without the prior written consent of Company, in each and every instance, such consent to be within Company’s sole and absolute discretion. During the entire Vesting Period, if the Participant (x) calls on, solicits, induces to leave and/or takes away, or attempts to call on, solicit, induce to leave and/or take away, any Business Contacts of Employer or (y) approaches, solicits, contracts with or hires any current Business Contacts of Employer or entices any Business Contact to cease his/her/its relationship with Employer or end his/her employment with Employer, without the prior written consent of Company, the continued vesting provided for under Section 3.2 of this Agreement will immediately terminate and all of such Participant’s then outstanding Restricted Stock Units will immediately terminate and be forfeited as of the date of such action.
(iii) Non-Disclosure and Confidentiality. The Participant will not make known to any Competitor and/or any member, manager, officer, director, employee or agent of a Competitor, the Business Contacts of Employer. The Participant further covenants and agrees that at all times during Participant’s employment with the Company, and at all times thereafter, Participant shall not, without the prior written consent of the Company’s Chief Executive Officer, Chief Operating Officer or General Counsel in each and every instance—such consent to be within the Company’s sole and absolute discretion—use, disclose or make known to any person, entity or other third party outside of the Employer any Confidential Information belonging to Employer or its individual members. Notwithstanding the foregoing, the provisions of this paragraph shall not apply to Confidential Information: (A) that is required to be disclosed by law or by any court, arbitrator, mediator or administrative or legislative body (including any committee thereof) in any litigation, arbitration, mediation or legislative hearing, with jurisdiction to order Participant to disclose or make accessible any information, provided, however, that Participant provides Company with ten (10) days’ advance written notice of such disclosure to enable Company to seek a protective order or other relief to protect the confidentiality of such Confidential Information; (B) that becomes generally known to the public or within the relevant trade or industry other than due to Participant’s or any third party’s violation of this Section 3.10 or other obligation of confidentiality; or (C) that becomes available to Participant on a non-confidential basis from a source that is legally entitled to disclose it to Participant.
(iv) Forfeiture. It is a condition to the receipt of any benefits under this Agreement that, in the event of any breach of the Participant’s obligations under this Section 3.10, the continued vesting provided for under Section 3.2 of this Agreement will immediately terminate and all of the Participant’s then outstanding Restricted Stock Units will immediately terminate and be forfeited as of the date the Company determines that such a breach has occurred.
Nothing contained in this Section 3.10 limits or otherwise prohibits the Participant from filing a charge or complaint with the Equal Employment Opportunity Commission, the National Labor
8
Relations Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission or any other federal, state or local governmental agency or commission (“Government Agencies”). Further, this Section 3.10 does not limit the Participant’s ability to communicate with any Government Agencies or otherwise participate in any investigation or proceeding that may be conducted by any Government Agency, including providing documents or other information (subject to the paragraph below), without notice to the Company. This Section 3.10 does not limit the Participant’s right to receive an award for information provided to any Government Agencies.
Notwithstanding anything to the contrary in this Section 3.10 or otherwise, pursuant to the Defend Trade Secrets Act of 2016, the Company hereby advises the Participant as follows: (A) an individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (i) is made (a) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (b) solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal; and (B) an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (i) files any document containing the trade secret under seal; and (ii) does not disclose the trade secret, except pursuant to court order.
The Participant agrees to notify the Company immediately of any other persons or entities for whom he or she works or provide services within the Vesting Period (excluding occasional consulting services for a non-Competitor, and similar activities), and to provide such information as the Company may reasonably request regarding such work or services during the Vesting Period within a reasonable time following such request. If the Participant fails to provide such notice or information, which failure is not cured by you within thirty (30) days after written notice thereof from the Company, any right to continued vesting under Section 3.2 shall immediately cease. The Participant further agrees to promptly notify the Company, within the Vesting Period, of any contacts made by any Competitor which concern or relate to an offer to employ the Participant or for the Participant to provide consulting or other services during the Vesting Period.
4. Investment Representation. The Participant must, within five (5) days of demand by the Company furnish the Company an agreement satisfactory to the Company in which the Participant represents that the shares of Stock acquired upon vesting are being acquired for investment. The Company will have the right, at its election, to place legends on the certificates representing the shares of Stock so being issued with respect to limitations on transferability imposed by federal and/or state laws, and the Company will have the right to issue “stop transfer” instructions to its transfer agent.
5. Participant Bound by Plan. The Participant hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all the terms and provisions thereof as amended from time to time.
6. Withholding. The Company or any Parent or Subsidiary shall have the right and is hereby authorized to withhold, any applicable withholding taxes in respect of the Restarted Stock
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Units awarded by this Agreement, their grant, vesting or otherwise, and to take such other action as may be necessary in the opinion of the Company to satisfy all obligations for the payment of such withholding taxes, which may include, without limitation, reducing the number of shares otherwise distributable to the Participant by the number of shares of Stock whose Fair Market Value is equal to the amount of tax required to be withheld by the Company or a Parent or Subsidiary as a result of the vesting or settlement or otherwise of the Restricted Stock Units.
7. Notices. Any notice hereunder to the Company must be addressed to: MGM Resorts International, 3600 Las Vegas Boulevard South, Las Vegas, Nevada 89109, Attention: 2022 Omnibus Incentive Plan Administrator, and any notice hereunder to the Participant must be addressed to the Participant at the Participant’s last address on the records of the Company, subject to the right of either party to designate at any time hereafter in writing some other address. Any notice shall be deemed to have been duly given on personal delivery or three (3) days after being sent in a properly sealed envelope, addressed as set forth above, and deposited (with first class postage prepaid) in the United States mail.
8. Entire Agreement. This Agreement and the Plan constitute the entire agreement between the parties hereto with regard to the subject matter hereof and shall supersede any other agreements, representations or understandings (whether oral or written and whether express or implied, and including, without limitation, any employment agreement between the Participant and the Company or any of its affiliates (including, without limitation, any Parent or Subsidiary) whether previously entered into, currently effective or entered into in the future that includes terms and conditions regarding equity awards) which relate to the subject matter hereof.
9. Waiver. No waiver of any breach or condition of this Agreement shall be deemed a waiver of any other or subsequent breach or condition whether of like or different nature.
10. Participant Undertaking. The Participant agrees to take whatever additional action and execute whatever additional documents the Company may deem necessary or advisable to carry out or effect one or more of the obligations or restrictions imposed on either the Participant or the Restricted Stock Units pursuant to this Agreement.
11. Successors and Assigns. The provisions of this Agreement shall inure to the benefit of, and be binding upon, the Company and its successors and assigns and upon the Participant, the Participant’s assigns and the legal representatives, heirs and legatees of the Participant’s estate, whether or not any such person shall have become a party to this Agreement and agreed in writing to be joined herein and be bound by the terms hereof.
12. Governing Law. The parties hereto agree that the validity, construction and interpretation of this Agreement shall be governed by the laws of the state of Nevada.
13. Arbitration. Except as otherwise provided in Exhibit A to this Agreement (which constitutes a material provision of this Agreement), disputes relating to this Agreement shall be resolved by arbitration pursuant to Exhibit A hereto.
14. Clawback Policy. By accepting this award the Participant hereby agrees that this award and any other compensation paid or payable to the Participant is subject to Company’s recoupment, recovery or clawback policy or policies as in effect from time to time, and that this award shall be considered a bonus for purposes of the Policy on Recovery of Incentive
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Compensation in Event of Financial Restatement. In addition, the Participant agrees that such policy or policies may be amended from time to time by the Board in a manner designed to comply with applicable law and/or stock exchange listing requirements.
15. Amendment. This Agreement may not be altered, modified, or amended except by written instrument signed by the parties hereto; provided that the Company may alter, modify or amend this Agreement unilaterally if such change is not materially adverse to the Participant or to cause this Agreement to comply with applicable law.
16. Severability. The provisions of this Agreement are severable and if any portion of this Agreement is declared contrary to any law, regulation or is otherwise invalid, in whole or in part, the remaining provisions of this Agreement shall nevertheless be binding and enforceable.
17. Execution. Each party agrees that an electronic, facsimile or digital signature or an online acceptance or acknowledgment will be accorded the full legal force and effect of a handwritten signature under Nevada law. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
18. Variation of Pronouns. All pronouns and any variations thereof contained herein shall be deemed to refer to masculine, feminine, neuter, singular or plural, as the identity of the person or persons may require.
19. Tax Treatment; Section 409A. The Participant shall be responsible for all taxes with respect to the Restricted Stock Units. Notwithstanding the forgoing or any provision of the Plan or this Agreement:
19.1 The parties agree that this Agreement shall be interpreted to comply with or be exempt from Section 409A, and all provisions of this Agreement shall be construed in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A. If any provision of this Agreement or the Plan contravenes Section 409A or could cause the Participant to incur any tax, interest or penalties under Section 409A, the Committee may, in its sole discretion and without the Participant’s consent, modify such provision in order to comply with the requirements of Section 409A or to satisfy the conditions of any exception therefrom, or otherwise to avoid the imposition of the additional income tax and interest under Section 409A, while maintaining, to the maximum extent practicable, the original intent and economic benefit to the Participant, without materially increasing the cost to the Company, of the applicable provision. However, the Company makes no guarantee regarding the tax treatment of the Restricted Stock Units and none of the Company, its Parent, Subsidiaries or affiliates, nor any of their employees or representatives shall have any liability to the Participant with respect thereto.
19.2 A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits considered “nonqualified deferred compensation” under Section 409A upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” If the Participant is deemed on the date of termination to be a
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“specified employee” within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is considered nonqualified deferred compensation under Section 409A payable on account of a “separation from service,” such payment or benefit shall be made or provided at the date which is the earlier of (i) the expiration of the six (6)-month period measured from the date of such “separation from service” of the Participant, and (ii) the date of the Participant’s death (the “Delay Period”). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 19.2 (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed on the first business day following the expiration of the Delay Period to the Participant in a lump sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
19.3 For purposes of Section 409A, the Participant’s right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company.
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IN WITNESS WHEREOF, the parties hereto have executed this Restricted Stock Units Agreement as of the date first written above.
| MGM RESORTS INTERNATIONAL | ||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| PARTICIPANT | ||
| By: | ||||||||
| Name: | ||||||||
[Signature Page to Restricted Stock Units Agreement]
EXHIBIT A
ARBITRATION
This Exhibit A sets forth the methods for resolving disputes should any arise under the Agreement, and accordingly, this Exhibit A shall be considered a part of the Agreement.
1. Except for a claim by either Participant or the Company for injunctive relief where such would be otherwise authorized by law, any controversy or claim arising out of or relating to the Agreement or the breach hereof including without limitation any claim involving the interpretation or application of the Agreement or the Plan, shall be submitted to binding arbitration in accordance with the employment arbitration rules then in effect of the Judicial Arbitration and Mediation Service (“JAMS”), to the extent not inconsistent with this paragraph. This Exhibit A covers any claim Participant might have against any officer, director, employee, or agent of the Company, or any of the Company’s subsidiaries, divisions, and affiliates, and all successors and assigns of any of them. The promises by the Company and Participant to arbitrate differences, rather than litigate them before courts or other bodies, provide consideration for each other, in addition to other consideration provided under the Agreement.
2. Claims Subject to Arbitration. This Exhibit A contemplates mandatory arbitration to the fullest extent permitted by law. Only claims that are justiciable under applicable state or federal law are covered by this Exhibit A. Such claims include any and all alleged violations of any state or federal law whether common law, statutory, arising under regulation or ordinance, or any other law, brought by any current or former employees.
3. Non-Waiver of Substantive Rights. This Exhibit A does not waive any rights or remedies available under applicable statutes or common law. However, it does waive Participant’s right to pursue those rights and remedies in a judicial forum. By signing the Agreement and the acknowledgment at the end of this Exhibit A, the undersigned Participant voluntarily agrees to arbitrate his or her claims covered by this Exhibit A.
4. Time Limit to Pursue Arbitration; Initiation: To ensure timely resolution of disputes, Participant and the Company must initiate arbitration within the statute of limitations (deadline for filing) provided for by applicable law pertaining to the claim. The failure to initiate arbitration within this time limit will bar any such claim. The parties understand that the Company and Participant are waiving any longer statutes of limitations that would otherwise apply, and any aggrieved party is encouraged to give written notice of any claim as soon as possible after the event(s) in dispute so that arbitration of any differences may take place promptly. The parties agree that the aggrieved party must, within the time frame provided by this Exhibit A, give written notice of a claim pursuant to Section 7 of the Agreement. In the event such notice is to be provided to the Company, the Participant shall provide a copy of such notice of a claim to the Company’s Executive Vice President and General Counsel. Written notice shall identify and describe the nature of the claim, the supporting facts and the relief or remedy sought.
5. Selecting an Arbitrator: This Exhibit A mandates Arbitration under the then current rules of the Judicial Arbitration and Mediation Service (JAMS) regarding employment disputes. The arbitrator shall be either a retired judge or an attorney experienced in employment law and licensed to practice in the state in which arbitration is convened. The parties shall select one arbitrator from among a list of three qualified neutral arbitrators provided by JAMS. If the parties are unable to agree on the arbitrator, each party shall strike one name and the remaining named arbitrator shall be selected.
6. Representation/Arbitration Rights and Procedures:
a. Participant may be represented by an attorney of his/her choice at his/her own expense.
b. The arbitrator shall apply the substantive law (and the law of remedies, if applicable) of Nevada (without regard to its choice of law provisions) and/or federal law when applicable. In all cases, this Exhibit A shall provide for the broadest level of arbitration of claims between the Company and Participant under Nevada or applicable federal law. The arbitrator is without jurisdiction to apply any different substantive law or law of remedies.
c. The arbitrator shall have no authority to award non-economic damages or punitive damages except where such relief is specifically authorized by an applicable state or federal statute or common law. In such a situation, the arbitrator shall specify in the award the specific statute or other basis under which such relief is granted.
d. The applicable law with respect to privilege, including attorney-client privilege, work product, and offers to compromise must be followed.
e. The parties shall have the right to conduct reasonable discovery, including written and oral (deposition) discovery and to subpoena and/or request copies of records, documents and other relevant discoverable information consistent with the procedural rules of JAMS. The arbitrator shall decide disputes regarding the scope of discovery and shall have authority to regulate the conduct of any hearing and/or trial proceeding. The arbitrator shall have the right to entertain a motion to dismiss and/or motion for summary judgment.
f. The parties shall exchange witness lists at least 30 days prior to the trial/hearing procedure. The arbitrator shall have subpoena power so that either Participant or the Company may summon witnesses. The arbitrator shall use the Federal Rules of Evidence. Both parties have the right to file a post hearing brief. Any party, at its own expense, may arrange for and pay the cost of a court reporter to provide a stenographic record of the proceedings.
g. Any arbitration hearing or proceeding shall take place in private, not open to the public, in Las Vegas, Nevada.
7. Arbitrator’s Award: The arbitrator shall issue a written decision containing the specific issues raised by the parties, the specific findings of fact, and the specific conclusions of law. The award shall be rendered promptly, typically within 30 days after conclusion of the arbitration
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hearing, or the submission of post-hearing briefs if requested. The arbitrator may not award any relief or remedy in excess of what a court could grant under applicable law. The arbitrator’s decision is final and binding on both parties. Judgment upon an award rendered by the arbitrator may be entered in any court having competent jurisdiction.
a. Either party may bring an action in any court of competent jurisdiction to compel arbitration under this Exhibit A and to enforce an arbitration award.
b. In the event of any administrative or judicial action by any agency or third party to adjudicate a claim on behalf of Participant which is subject to arbitration under this Exhibit A, Participant hereby waives the right to participate in any monetary or other recovery obtained by such agency or third party in any such action, and Participant’s sole remedy with respect to any such claim shall be any award decreed by an arbitrator pursuant to the provisions of this Exhibit A.
8. Fees and Expenses: The Company shall be responsible for paying any filing fee and the fees and costs of the arbitrator; provided, however, that if Participant is the party initiating the claim, Participant will contribute an amount equal to the filing fee to initiate a claim in the court of general jurisdiction in the state in which Participant is (or was last) employed by the Company. Participant and the Company shall each pay for their own expenses, attorney’s fees (a party’s responsibility for his/her/its own attorney’s fees is only limited by any applicable statute specifically providing that attorney’s fees may be awarded as a remedy), and costs and fees regarding witness, photocopying and other preparation expenses. If any party prevails on a statutory claim that affords the prevailing party attorney’s fees and costs, or if there is a written agreement providing for attorney’s fees and/or costs, the arbitrator may award reasonable attorney’s fees and/or costs to the prevailing party, applying the same standards a court would apply under the law applicable to the claim(s).
9. The arbitration provisions of this Exhibit A shall survive the termination of Participant’s employment with the Company and the expiration of the Agreement. These arbitration provisions can only be modified or revoked in a writing signed by both parties and which expressly states an intent to modify or revoke the provisions of this Exhibit A.
10. The arbitration provisions of this Exhibit A do not alter or affect the termination provisions of this Agreement.
11. Capitalized terms not defined in this Exhibit A shall have the same definition as in the Agreement to which this is Exhibit A.
12. If any provision of this Exhibit A is adjudged to be void or otherwise unenforceable, in whole or in part, such adjudication shall not affect the validity of the remainder of Exhibit A. All other provisions shall remain in full force and effect.
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ACKNOWLEDGMENT
BOTH PARTIES ACKNOWLEDGE THAT: THEY HAVE CAREFULLY READ THIS EXHIBIT A IN ITS ENTIRETY, THEY UNDERSTAND ITS TERMS, EXHIBIT A CONSTITUTES A MATERIAL TERM AND CONDITION OF THE RESTRICTED STOCK UNITS AGREEMENT BETWEEN THE PARTIES TO WHICH IT IS EXHIBIT A, AND THEY AGREE TO ABIDE BY ITS TERMS.
The parties also specifically acknowledge that by agreeing to the terms of this Exhibit A, they are waiving the right to pursue claims covered by this Exhibit A in a judicial forum and instead agree to arbitrate all such claims before an arbitrator without a court or jury. It is specifically understood that this Exhibit A does not waive any rights or remedies which are available under applicable state and federal statutes or common law. Both parties enter into this Exhibit A voluntarily and not in reliance on any promises or representation by the other party other than those contained in the Agreement or in this Exhibit A.
Participant further acknowledges that Participant has been given the opportunity to discuss this Exhibit A with Participant’s private legal counsel and that Participant has availed himself/herself of that opportunity to the extent Participant wishes to do so.
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Exhibit B
| Name of Report | Generated By | |||||||
| Including, but not limited to: | ||||||||
| Arrival Report | Room Reservation/Casino Marketing | |||||||
| Departure Report | Room Reservation/Casino Marketing | |||||||
| Master Gaming Report | Casino Audit | |||||||
| Department Financial Statement | Finance | |||||||
| $5K Over High Action Play Report | Casino Marketing | |||||||
| $50K Over High Action Play Report | Casino Marketing | |||||||
| Collection Aging Report(s) | Collection Department | |||||||
| Accounts Receivable Aging | Finance | |||||||
| Marketing Reports | Marketing | |||||||
| Daily Player Action Report | Casino Operations | |||||||
| Daily Operating Report | Slot Department | |||||||
| Database Marketing Reports | Database Marketing | |||||||
| Special Event Calendar(s) | Special Events/Casino Marketing | |||||||
| Special Event Analysis | Special Events/Casino Marketing | |||||||
| Tenant Gross Sales Reports | Finance | |||||||
Convention Group Tentative/Confirmed Pacing Reports | Convention Sales | |||||||
| Entertainment Event Settlement Reports | Finance | |||||||
| Event Participation Reports | Casino Marketing | |||||||
| Table Ratings | Various | |||||||
| Top Players | Various | |||||||
| Promotion Enrollment | Promotions | |||||||
| Player Win/Loss | Various | |||||||
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