展品10.1
格式
(RSU奖励--没有绩效标准)
(RSU奖励--没有绩效标准)
美高梅国际
(对Katrina S. Lindsey的补偿奖励)
(对Katrina S. Lindsey的补偿奖励)
受限股单位数量：
本协议（包括其附件，“协议”）由美高梅国际公司（下称“公司”）和 （“参与者”）于生效日期 （“生效日期”）
前言
A. 公司董事会（“董事会”）已通过了公司的2022年全面激励计划，经修改后（“计划”），该计划提供给选定的服务提供商发放受限制的股票单位（如本协议第1节中定义的术语）。本协议中使用但未定义的大写字母术语应与计划中的含义相同。
董事会认为，授予限制性股票单位将激发选定雇员对公司、母公司或子公司（如下文所定义）的兴趣，并加强他们留任下去的愿望。
董事会人力资本与薪酬委员会（“委员会”）已经根据计划和本协议的条款，授权向参与者授予限制性股票单位。
D. 委员会和参与者意图是，计划和本协议构成双方就本协议所涉主题达成的整个协议，并取代任何其他协议、陈述或谅解（无论口头还是书面，无论明示还是暗示，包括但不限于参与者与公司或其关联公司（包括但不限于任何母公司或子公司）之间涉及本协议所涉主题的任何雇佣协议，无论此类协议是在此之前、目前有效或将来签订的）。
根据本协议中包含的双方约定，各方如下同意：
1. 定义。
1.1“业务联系人”指任何人员、广告商、供应商、卖方、独立承包商、经纪人、合作伙伴、员工、实体、顾客或客户的姓名、地址、联系信息或与雇主交易秘密无关的任何信息，根据下文第3.10节的规定，雇主受到保护，不得披露；这些人员、广告商、供应商、独立承包商、经纪人、合作伙伴、员工、实体、顾客或客户可能是参与者在离开雇主工作的最后一天后的六个月内，参与者以任何方式、直接或间接地联系或试图联系的人员，或者雇主合理预期参与者在雇主工作期间会联系或试图联系的人员。
1.2 “代码”指的是1986年修订版的《内部税收法典》。
1.3“竞争对手”指任何直接或间接通过关联公司从事或拟从事发展、拥有、运营或管理（i）arvr游戏设施；（ii）会议或会议设施；或（iii）一个或多个酒店，如果任何这样的酒店在任何方面与游戏场所以任何方式连接，无论是物理上还是通过业务联营，并且，进一步，如果竞争对手的活动在距离雇主拥有的任何地点的任何上述设施、酒店或场所所在地的150英里半径内进行，或拟由雇主拥有、运营、管理或开发。
1.4“保密信息”指所有交易秘密、业务联系人、业务惯例、业务流程、财务信息、合同关系、营销惯例和程序、管理政策和程序、雇主或其他相关雇主运营的或交易秘密的信息，以及雇主成员的信息，以及所有保存或记录在任何数据库、文件或报告中的信息，如本合同或任何其他忠诚度、酒店、赌场或其他客户数据库或系统中的信息，无论参与者是否在雇主任职期间使用该信息。 附件B 不论参与者在雇主任期间是否使用，这里或任何其他忠诚度、酒店、赌场或其他客户数据库或系统中的信息，均属于保密信息的范畴。
1.5“当前雇佣协议”是指参与者与公司或其关联公司（包括但不限于任何母公司或子公司）在确定日期生效的雇佣协议。
1.6 “残疾”指参与者因任何可通过医学确定的身体或精神缺陷而无法从事任何实质性盈利活动，预计将导致死亡或预计将持续不少于十二（12）个月，或因任何可通过医学确定的身体或精神缺陷而无法从事任何实质性盈利活动，预计将导致死亡或预计将持续不少于十二（12）个月，而根据雇主的雇员事故和健康计划，已连续不少于三（3）个月接受收入替代福利。
1.7 “雇主”指公司、子公司、任何母公司和关联公司。
1.8“雇主正当理由”应具有《现行雇佣协议》中定义的含义或相应术语；但如果没有《现行雇佣协议》，或者该协议不包含该术语或相应术语，则“雇主正当理由”指：
A. 参与者未遵守雇主的政策和程序，行为不端、不顺从，忽视雇主的业务，未能按照雇主高管制定的标准履行参与者所需履行的职责，或对现行就业协议进行实质性违约，该失败或违约如未在雇主书面通知参与者指明所指的事实和情况后十（10）天内得到参与者的解决，则参与者未得到该期限内得到雇主书面通知的情况及出现的该失误或违约的事实和情况解决后， 在每种情况下，该B类股东和/或该B类股东的家庭成员需独立控制在此类帐户、计划或信托中持有的B类普通股实时；, 公司对于以下情况，不应承担责任：根据第10（b）部分书面信息可靠地提供。，如果董事会凭良好信念判断，该违约不可能在十（10）天内得到解决则无需提供此类通知和解决机会；
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b. 参与者未能或无法申请并获得雇主或任何监管机构要求参与者获得的任何许可证、资格、许可或其他类似批准。
雇主受内华达州、密歇根州、密西西比州、伊利诺伊州、澳门特别行政区或雇主参与arvr游戏业务的其他司法管辖区的任何政府机构的指示，要求终止与参与者的业务。
雇主以其合理判断认为，参与者已经参与，正在参与或可能参与任何可能危及雇主业务、声誉或从事业务的许可的活动、关系或情况；
E. 如果由于参与者受雇于雇主或由于参与者的行为，雇主的任何游戏业务许可证受到威胁被拒绝、受到限制、暂停或撤销。
1.9 “公平市场价值”是指有关确定日期，纽约证交所（“纽交所”）或其他适用的成熟证券交易所或场外市场报告的一股股票的收盘价，或者如果在该日期没有报告收盘价，则是在相关确定日期立即前的第一个交易日上报告的收盘价。如果要求确定其价值时，股票未公开交易，其公平市场价值的确定将由委员会以适当方式进行。
1.10“母公司”指《法典》第424(e)条中定义的母公司。
1.11“参与者的正当理由”应具有“现行雇佣协议”中规定的该术语或类似术语的含义；但是，如果没有现行雇佣协议或者该协议不包括该术语或类似术语，则“参与者的正当理由”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”是指根据法典第424(f)条的规定定义的公司子公司，或公司或其他实体，无论是国内还是国外，在这些公司拥有或获得超过百分之五十（50%）的所有权利或由于股权或其他方式。
1.18 “商业秘密” a重新定义的方式符合对内华达州法律的最广泛解释。商业秘密应包括但不限于机密信息、配方、发明、模式、汇编、供应商名单、客户名单、合同、商业计划和惯例、营销计划和惯例、财务计划和实践、计划、设备、方法、专有技术、技术或流程，其中任何一种可能或可能具有经济价值的行为都是由于其他可能或可能的人员不普遍知悉或无法通过适当手段轻易查明而获得当前或潜在的经济价值从其披露或使用中获得任何经济价值，包括但不是仅限于公众。
1.19 “解禁期”是指本协议签订之日起至下文第3.1节描述的最后预定解禁日期之间的时间段。
2. 授予参与者公司特此根据计划和本协议的条款和条件，授予参与者一定数量的限制性股票单位。 除非计划或本协议另有规定，（i）每个限制性股票单位代表在该限制性股票单位获得释放后收到一（1）股股票的权利，（ii）除非并直到按照本协议的条款规定限制性股票单位获得释放，参与者将没有任何权利要求交付该限制性股票单位基础的股票或任何其他相关考虑，和（iii）获得释放的每个限制性股票单位应在限制性股票单位获得释放的日期后三十（30）天内支付给参与者，或适用的第3.1和3.2节规定的日期。
3. 条款和条件.
3.1 分配时间表根据第3.2节规定，受限股票单位将根据以下(i)至(iii)规定的方式获得，前提是参与者在以下(i)至(iii)所指定的日期继续受雇于公司或任何子公司或母公司：
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(i) 第一期应包括受限制股票单位的三分之一股份，并应在生效日期一周年后生效生效日期的第一个周年（“仓库服务期”）。初始归属日期”).
（ii）第二期股票分期付款将由限制性股票单位占股的三分之一组成，并将于初始分期日期的第一周年解禁。
（iii）第三期应包括限制性股票单位所属股票的三分之一，并应在初始认股日期的第二周年成熟；
在每种情况下，该B类股东和/或该B类股东的家庭成员需独立控制在此类帐户、计划或信托中持有的B类普通股实时；根据第3.1节规定的时间表，任何受限股票单位在其约定的时间表下获得后，应在适用分期获得后的30天内支付给参与者。
3.2 终止时的分配终止与雇主的雇佣关系后，受限股票单位的未分配部分将被没收，且不予任何补偿； 在每种情况下，该B类股东和/或该B类股东的家庭成员需独立控制在此类帐户、计划或信托中持有的B类普通股实时；, 公司对于以下情况，不应承担责任：根据第10（b）部分书面信息可靠地提供。如果，（i）雇主无正当理由终止雇佣关系或参与者有正当理由终止雇佣关系，根据本文第3.1节确定的计划，在终止雇佣关系之日起十二（12）个月内应成为有效的限制股票单位应继续存在，且按照本文第3.1节确定的相同计划支付；（ii）参与者因退休而终止雇佣关系，只要终止日期距离生效日期至少六个月，则所有未分配的限制股票单位应继续存在，且按照本文第3.1节确定的相同计划支付；（iii）参与者因死亡或伤残而终止雇佣关系，所有未分配的限制股票单位应立即变为有效，并在终止日期后三十（30）天内支付给参与者。如果参与者在公司或其关联方就业协议或以下第3.10节所载明的任何终止后契约中违反任何规定后，前述句子中规定的任何继续分配应立即停止，未分配的限制股票单位应被没收（考虑到任何适用的纠正期）。
尽管本协议中有任何相反规定，如果参与者在解雇时符合既定的退休解雇资格（不考虑90天通知要求），并且雇主不基于雇主无正当理由的解雇，参与者将被允许指定是否参与者的雇佣是由于参与者的退休还是雇主无正当理由的解雇。
3.3 委员会有自行决定权委员会可以自行决定，随时加快解禁参与者未解限制股票单位余额的速度，或者某个更小的部分，但须遵守计划和本协议的条款。如果加快解禁，未解限制股票单位将被视为已于委员会指定的日期或适用书面协议之日期解锁，但如果此加快使本协议不符合第409A条，则委员会无权加快任何款项的支付。
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3.4 股东权利和股利等同权益.
（i）参与者在受限制股票单位所涉及的股票股份获得解禁并发行并被公司或其过户代理商或注册员记录之前，将不享有任何股东权利。
(ii) 尽管前述规定，每个受限制的股票单位应当积累股息等同于在授予日期到交付该等受限制的股票单位的日期间将否则支付给基础股票的股息。 任何此类股息等同应被视为立即在相关股息支付日期以基于当时的公允市值的额外完整和碎股的形式再投资，并应受制于适用于支付此类股息等同的受限制的股票单位的相同获授权、结算和其他条件。 任何碎股应在这类受限制的股票单位成熟时以现金支付。
3.5 转让限制根据本协议授予的受限制股票单位只能转让给由参与者或参与者的配偶控制资产管理的信托。就已经转让给信托的受限制股票单位而言，本协议中提到与此类受限制股票单位相关的归属一词应被视为包括该信托。任何受限制股票单位的转让应受计划和本协议的条款和条件约束，受让人应受相同的条款和条件，就好像它是参与者。参与者在本协议项下的任何权益均不得受到附着、执行、扣押、扣押、破产法律或任何其他法律或衡平程序的约束。
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
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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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