UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM 8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15 (d) of the
Securities
Exchange Act of 1934
Date of
Report October 3, 2006
(Date of earliest
event reported)
PENN
NATIONAL GAMING, INC.
(Exact name of
registrant as specified in its charter)
Pennsylvania
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0-24206
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23-2234473
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(State or other
jurisdiction
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(Commission File
Number)
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(IRS Employer
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of
incorporation)
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Identification Number)
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825 Berkshire Blvd., Suite 200, Wyomissing Professional Center,
Wyomissing, PA
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19610
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(Address of
principal executive offices)
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(Zip Code)
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(Registrants
telephone number) Area Code (610) 373-2400
Check the appropriate box
below if the form 8-K filing is intended to simultaneously satisfy the filing
obligation of the registrant under any of the following provisions (see General
Instruction A.2 to Form 8-K):
o Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
1.01 Entry into a
Material Definitive Agreement.
On July 27, 2006, Penn
National Gaming, Inc. announced that, by mutual agreement, Kevin DeSanctis, the
Companys President and Chief Operating Officer, would be departing from the
Company. In connection with Mr.
DeSanctiss departure, on October 3, 2006, the Company entered into a
Separation Agreement and General Release (the Separation Agreement) with
Mr. DeSanctis. In accordance with the
Separation Agreement, Mr. DeSanctis will be employed by the Company through
February 9, 2007 (the Employee Termination Date) in order to continue to
facilitate an orderly transition. Mr. DeSanctis will relinquish the titles of
President and Chief Operating Officer effective October 9, 2006 (the Officer
Termination Date) and will serve in a non-officer capacity through the
Employee Termination Date.
Mr. DeSanctis will
be paid his current base salary until the Officer Termination Date and, from
the period from the Officer Termination Date until the Employee Termination
Date, Mr. DeSanctis will receive $1,000 per week. To the extent the Companys Compensation
Committee determines Mr. DeSanctis is entitled to a bonus, he will receive a
bonus based on the same percentage of base salary received by peer executives,
adjusted pro rata for the portion of the year he served as President and Chief
Operating Officer. The vested portion of
Mr. DeSanctiss incentive stock options will expire thirty days after the
Employee Termination Date and the vested portion of Mr. DeSanctiss
non-qualified stock options will expire on the earlier of their expiration date
or August 9, 2007.
Pursuant to the
Separation Agreement, Mr. DeSanctis is subject to a broad non-solicitation
and non-hire covenant that expires on February 9, 2009. In addition, Mr. DeSanctis has agreed
that the non-competition provisions contained in the employment agreement
between Mr. DeSanctis and the Company shall continue until the Officer
Termination Date. Except for certain
mutually agreed upon matters, subsequent to the Officer Termination Date, Mr.
DeSanctis shall have no restrictions on his ability to compete with the
Company, including Mr. DeSanctiss previously-announced pursuit of gaming
industry opportunities through Revel Entertainment. The Separation Agreement also prohibits Mr.
DeSanctis from disclosing confidential information of the Company. In addition, Mr. DeSanctis has agreed to release the Company from, and
covenanted not to sue the Company regarding, any and all claims he may have
against the Company relating to or arising out of his employment with the
Company except for specified customary exceptions. The Company agreed to release Mr. DeSanctis
from, and covenanted not to sue Mr. DeSanctis regarding, any claims arising
prior to October 3, 2006.
Item 5.02
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Departure of Directors or Principal Officers;
Election of Directors;
Appointment of Principal Officers.
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The information
provided in Item 1.01 of this Current Report on Form 8-K is hereby incorporated
by reference into this
Item 5.02.
Item
9.01 Financial Statements
and Exhibits.
(d) Exhibits.
Exhibit No.
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Description
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10.1
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Separation Agreement and General Release dated
October 3, 2006, between Kevin DeSanctis and Penn National Gaming, Inc.
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SIGNATURES
Pursuant to the
requirements of the Securities Exchange Act of 1934, the Registrant has duly
caused this report to be signed on its behalf by the undersigned, thereunto
duly authorized.
Dated: October 6, 2006
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Penn National Gaming, Inc.
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By:
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/s/ Robert S. Ippolito
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Robert S. Ippolito
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Vice President, Secretary and Treasurer
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EXHIBIT
INDEX
Exhibit No.
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Description
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10.1
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Separation Agreement and General Release dated
October 3, 2006, between Kevin DeSanctis and Penn National Gaming, Inc.
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Exhibit 10.1
SEPARATION AGREEMENT AND GENERAL
RELEASE
This Separation Agreement and General Release (the Agreement)
is made this 3rd day of October, 2006, by and between Penn National Gaming,
Inc., a Pennsylvania corporation (the Employer) and Kevin DeSanctis (the Executive).
BACKGROUND
A. Executive is currently employed by Employer
as its President and Chief Operating Officer pursuant to that certain
employment agreement between Employer and Executive, dated as of May 26, 2004
(the Employment Agreement), which agreement expires on May 26, 2007 (the Expiration
Date).
B. In order to effect an orderly transition of
Executives responsibilities prior to the Expiration Date, Executive and
Employer have now mutually agreed that Employer may elect to terminate the
employment relationship after the date hereof in accordance with Section 1 of
this Agreement.
C. Executive and Employer desire to set forth
the terms of the separation and to provide for mutual general releases, all as
more specifically set forth herein.
NOW, THEREFORE, in
consideration of the foregoing preambles, the mutual covenants and agreements
set forth below and other valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
1. Transition Services.
1.1 Officer
Transition Services. In order to
assist Employer with an orderly transition of Executives responsibilities,
Executive agrees to continue to serve in his current capacity as President and
Chief Operating Officer of Employer until the earlier of (i) Employers written
notice (such notice to be not less than five (5) business days) to Executive
that it has completed an orderly transition of Executives officer
responsibilities, (ii) thirty (30) days after the first date of employment of
Executives successor or (iii) December 31, 2006 (the Officer Termination Date). During the period from the date hereof until
the Officer Termination Date, Executive shall continue to report to the
corporate headquarters in Wyomissing, Pennsylvania and shall, at Employers
request, continue to perform his roles and responsibilities in the same manner
as prior to the date hereof. Effective
as of the close of business on the Officer Termination Date and without any
further action by either party, Executive shall be deemed to have resigned from
all positions held as an officer or director of
Employer and
any of its Affiliates (as such term is defined under Rule 144 promulgated
pursuant to the Securities Act of 1933, as amended).
1.2 Non-Officer
Transition Services. Following the
Officer Termination Date, Executive agrees to continue to serve as a
non-officer employee of Employer until February 9, 2007 (the Termination Date). During the period from the Officer
Termination Date until the Termination Date, Executive shall not be required to
report to the corporate headquarters on a regular basis but shall make himself
reasonably available to assist Employer on such matters as the parties may
mutually determine require the assistance of Executive. Effective as of the close of business on the
Termination Date and without any further action by either party, Executives
employment with Employer shall be deemed to be terminated.
1.3 Employment Agreement. The Employment Agreement shall remain in full
force and effect until the Officer Termination Date. In the event of any conflict between the
terms of the Employment Agreement and the terms hereof, the provisions of this
Agreement shall control. After the
Officer Termination Date, this Agreement shall solely govern the relationship
between the parties.
2. Compensation.
2.1 Compensation. Employer will continue to pay Executive his
current base salary until the Officer Termination Date. During the period from the Officer
Termination Date until the Termination Date, Employer will pay Executive $1,000
per week.
2.2 Bonus Payment. To the extent the Compensation Committee
determines that Employers performance for 2006 merits the payment of an annual
bonus to Level I employees, then Executive shall be entitled to a pro-rata
bonus (based on the number of days elapsed through the Officer Termination
Date) based on the same percentage of base salary received by other Level I
employees. Such payment will be made within
thirty (30) days of the Termination Date, subject to Executive executing a
bring-down of the releases set forth in Section 6 of this Agreement.
2.3 Expenses; Paid
Time Off. Executive shall be reimbursed in the normal
course for all reasonable business-related expenses incurred by him in accordance
with Employers policies on or before the Termination Date and submitted within
forty-five (45) days after the Termination Date. Executive shall continue to be entitled to
four (4) weeks of paid vacation time in each calendar year through the Termination
Date, and Executive shall all be paid for any earned but unused vacation and
other personal days in accordance with Employers policies.
2.4 Benefits. Executive shall continue to participate in
Employers medical plans, deferred compensation plan, 401(k) and other medical
and savings plans through
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the
Termination Date. Employer confirms that
as of the date of this Agreement, Executive is 100% vested in his 401(k)
account and his benefits under Employers non-qualified deferred compensation
plan. After the Termination Date,
Executive will be entitled to continue his health benefits at his expense as
provided by COBRA. In addition, Employer
and Executive will take such action as is necessary to transfer to Executive
the ownership of, and the obligations arising under, the $5,000,000 life
insurance policy on the life of Executive and the lease of Executives Employer
provided automobile.
2.5 Equity
Compensation. All equity
compensation awards held by Executive shall continue to vest until the Termination
Date in accordance with their respective terms, including, without limitation,
Section 14.4 of Employers 2003 Long Term Incentive Compensation Plan (the Plan),
which section shall apply to all equity compensation awards held by
Executive. A detailed vesting schedule
is set forth on Exhibit A hereto.
Following the Termination Date and notwithstanding any provision of the
Plan or any option agreement or certificate to the contrary, all vested stock
options shall remain exercisable until the earlier of August 9, 2007 or the
expiration of the term of the option (other than any options which are
incentive stock options, which shall remain exercisable in accordance with
their terms), and all unvested equity compensation (including all restricted stock
grants) awards shall be deemed terminated.
Employer hereby agrees to amend Executives stock options to the extent
necessary to conform to this Section 2.5.
2.6 No
Other Compensation. Other than as
specifically set forth in this Agreement, Executive shall not be eligible for
any other compensation for services rendered prior to the Termination Date
including, without limitation, bonus, further stock option grants or other
incentive compensation, related to his employment with Employer. This provision does not affect Executives
entitlement to continued benefits under Employers employee benefit plans in
accordance with their terms through the Termination Date.
3. Covenants.
3.1 Regulatory
Matters; Further Assurances. The
parties will cooperate in good faith with each other in terminating or
transferring any licenses presently held by Executive that were issued in
connection with his employment with Employer and in taking such other actions
as are necessary to effect the purposes set forth herein. Executive agrees to execute and deliver such
instruments and documents in his capacity as a registered person with any
regulatory agency required to be filed by Employer until his successor has been
duly qualified, so long as such documents are in form and substance reasonably
satisfactory to Executive.
3.2 Indemnification. Notwithstanding anything in Section 6.2 below
and to the extent permitted pursuant to the Pennsylvania Business Corporation
Law of 1988, as
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amended, and
the Bylaws of Employer, Employer shall defend and indemnify Executive with
respect to acts or omissions of Executive as an employee, agent, officer or
director of Employer or its Affiliates occurring on or prior to the Termination
Date.
3.3 Corporate
Property. Executive agrees that on
or before the Officer Termination Date, he will return to Employer all property
of Employer or its Affiliates in his possession including, but not limited to,
keys, access cards, identification cards, credit cards, files (including files
pertaining to potential acquisitions, partnerships and other strategic
opportunities), records, publications, customer or vendor lists, computers,
telephones or other electronic devices and any reports or compendia made by
Executive or any other person concerning Employer or its business or prospects
and any copies in any format of any of the foregoing.
3.4 Confidentiality. Executive hereby acknowledges that as a
result of his employment by Employer he has had access to, obtained, or
developed certain confidential or legally privileged information (including but
not limited to trade secrets, methods and practices, financial information,
information technology systems, technical and research data, new product
development information, pricing information, business and marketing plans,
lobbying activities, acquisition prospects and strategies and compliance
matters) of Employer and its Affiliates (collectively Information), and that
such Information constitutes valuable, special and unique property of Employer
and its Affiliates. Executive agrees
that he shall hold inviolate and keep secret all such Information and will not
for any reason or purpose use, permit to be used, or disclose to any party any
Information. Notwithstanding anything to
the contrary in the foregoing, Executive may divulge any Information required
by law to be divulged by him to any government commission, agency or other
regulatory body or pursuant to a subpoena; provided, however, that, unless it
is not feasible under the circumstances, prior to divulging any such
Information, Executive shall advise Employers General Counsel that a request
has been made and cooperate with Employer, if requested, in Employers efforts
to seek protective relief against the divulgence of any such Information. In any event, unless prohibited by law,
Executive will keep Employer fully advised of any contacts from any such
government agency, commission or regulatory body, and any Information given by
him to the same.
3.5 Disparaging
Remarks. Executive and Employer
agree that neither shall directly or indirectly make disparaging remarks about
the other party or their respective employers, employees, directors, officers,
products or services (as applicable) to any person or entity or directly or
indirectly make or solicit any comments, statements or the like to the media or
other third parties which may be considered derogatory or detrimental. This provision shall not apply to sworn
testimony given in a court proceeding or compelled under subpoena.
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4. Non-Competition & Non-Solicitation.
4.1 Non-Competition.
4.1.1 Without limiting the
generality of any other provision hereof, the parties acknowledge and agree
that the non-competition provisions in Section 6 of the Employment Agreement
shall continue in full force and effect until the Officer Termination Date;
provided, however, that, Employer agrees that Executive may spend a reasonable
amount of time, during business hours or otherwise, on the formation of his new
business so long as such efforts do not unreasonably interfere with his duties
hereunder and are limited to such matters as may be mutually agreed upon by
Employer and Executive.
4.1.2 Following the Officer
Termination Date, Executive shall have no restrictions on his ability to
compete with Employer except with respect to certain opportunities that may be
mutually agreed upon by Employer and Executive.
4.2 Non-Solicitation. From the date hereof through the second
anniversary of the Termination Date, Executive will not, except with the prior
written consent of Employer, directly or indirectly, solicit or hire, or
encourage the solicitation or hiring of, any person who is, or was within a six
month period prior to such solicitation or hiring, an executive or management
employee of Employer or any of its Affiliates for any position as an employee,
independent contractor, consultant or otherwise , or induce any such person to
terminate his or her employment relationship with Employer or any of its
Affiliates or to breach his or her employment agreement with Employer or any of
its Affiliates.
5. No Admissions.
The terms of this Agreement are not to be considered as an admission on
behalf of either party. Neither this
Agreement nor its terms shall be admissible as evidence of any liability or
wrongdoing by either party or any of the Releasees in any judicial,
administrative or other proceeding now pending or hereafter instituted by any
person or entity. Employer is entering
into this Agreement solely for the purpose of effectuating a mutually
satisfactory separation of Executives employment. Both parties acknowledge and agree that
Employer and Executive shall be permitted to file this Agreement with the
Securities Exchange Commission and such other regulatory bodies as either party
may deem appropriate or necessary.
6. Release and Covenant not to Sue.
6.1 Definitions.
6.1.1 When used in this
Agreement, the word Releasees means Employer and all or any of its past and
present subsidiary and affiliated corporations, companies, partnerships, joint
ventures and other entities and their groups, divisions, departments and units,
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and their past
and present directors, trustees, officers, managers, partners, supervisors,
employees, attorneys, agents and consultants, and their predecessors,
successors and assigns.
6.1.2 When used in this
Agreement, the word Claims means each and every claim, complaint, cause of
action, and grievance, whether known or unknown and whether fixed or
contingent, and each and every promise, assurance, contract, representation,
guarantee, warranty, right and commitment of any kind, whether known or unknown
and whether fixed or contingent.
6.2 Release of
Employer. In consideration of the
promises of Employer set forth in this Agreement, and intending to be legally
bound, Executive hereby irrevocably remises, releases and forever discharges
all Releasees of and from any and all Claims that he (on behalf of either
himself or any other person or persons) ever had, now has or may have against
any and all of the Releasees, or which he (or his heirs, executors, administrators
or assigns or any of them) hereafter can, shall or may have against any and all
of the Releasees, for by reason of any cause, matter, thing, occurrence or
event whatsoever relating to or arising out of his employment with Employer. Executive acknowledges and agrees that the
Claims released in this Section 6.2 include, but are not limited to, (a) any
and all Claims based on any law, statute or constitution or based on contract
or in tort on common law, (b) any and all Claims based on or arising under any
civil rights laws, such as any Pennsylvania employment laws, or Title VII of
the Civil Rights Act of 1964, the Federal Age Discrimination in Employment Act
(the ADEA), the Americans with Disabilities Act, the Family and Medical Leave
Act, the Occupational Safety and Health Act, and similar state and local
statutes, laws and ordinances, (c) any and all Claims pertaining to
discrimination, harassment, or retaliation, whether based on race, color,
religion, gender, age, sexual orientation, handicap and/or disability, national
origin, whistle-blowing or any other legally protected class, (d) any and all
Claims under any grievance or complaint procedure of any kind, (e) any and all
Claims based on or arising out of or related to his recruitment by, employment
with, the termination of his employment with, his performance of any services
in any capacity for, or any business transaction with, each or any of the
Releasees and (f) any and all Claims for attorneys fees, including litigation
costs and expenses in connection any of the foregoing. Executive also understands, that by signing
this Agreement, he is waiving all Claims against any and all of the Releasees
released by this Agreement; provided, however, that as set forth
in section 7(f)(1)(c) of the ADEA, as added by the Older Workers Benefit
Protection Act of 1990, nothing in this Agreement constitutes or shall be
construed to constitute a waiver by Executive of any rights or claims that may
arise after the date hereof; provided, further, that the foregoing
is not intended to release any claim that Executive may have to (i)
indemnification or directors and officers liability insurance coverage, (ii)
payment of the benefits provided under this Agreement (including accrued and
unpaid vacation, base salary and bonus through the date of termination of
employment), (iii) accrued and vested benefits under any retirement plan or
deferred compensation account or plan and (iv) benefits to which Executive is
entitled under the Employee Retirement Income Security Act of 1974, as
amended.
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In addition,
Executive waives any right to initiate or otherwise voluntarily participate in
any shareholders derivative action with respect to Employer and its
majority-owned subsidiaries by reason of any act or omission prior to the date
of this Agreement, including, without limitation, being a named plaintiff in or
causing to be filed on Executives behalf or as a class action any such
derivative action.
6.3 Release by
Employer. Employer and its majority
controlled subsidiaries hereby irrevocably remise, release and forever
discharge Executive from any Claims arising prior to the date hereof, except
any Claim arising under this Agreement.
6.4 Covenant Not to
Sue. Executive covenants and agrees
not to sue the Releasees and each or any of them for any Claims released by
this Agreement and to waive any recovery related to any Claims covered by this
Agreement. Employer and its majority
controlled subsidiaries covenant and agree not to sue Executive for any Claims
released by this Agreement and to waive any recovery related to any Claims
covered by this Agreement.
7. Review and Consideration Period. Executive
acknowledges that he has been instructed to and has had the opportunity to
review this Agreement with an attorney and/or any person of his choosing before
signing it. Executive further acknowledges that he has had twenty-one (21) days
to consider this Agreement. By executing this Agreement, Executive acknowledges
that, as of the date of execution, he has either considered the Agreement for
twenty-one (21) days, or has, on the advice of counsel, waived the twenty-one
(21) day consideration period.
8. Revocation Right. Executive shall have seven (7)
days after signing this Agreement to revoke it. This Agreement shall not be
effective nor will any consideration be provided until after the revocation
period has passed. A revocation of this Agreement shall be written and shall
not be effective unless actually received by the Chairman or General Counsel of
Employer on or before the 7th day after this
Agreement has been signed.
9. Notices. All notices, requests, demands, claims,
and other communications hereunder will be in writing and addressed to the
intended recipient as set forth below. Any party hereto may give any notice,
request, demand, claim or other communication hereunder by registered or
certified mail, return receipt requested, or delivery in person or by any
nationally known overnight courier service that requires a return receipt or
signature for delivery. Any party hereto
may change the address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other party hereto
notice in the manner herein set forth.
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If to Executive: Kevin DeSanctis
2 Woods Way
Wyomissing, PA 19610
If to Employer: Penn National
Gaming, Inc.
825 Berkshire Blvd., Suite 200
Wyomissing, PA 19610
Attention: General Counsel
10. Remedies. No remedy conferred upon either party by this Agreement is
intended to be exclusive of any other remedy, and each and every such remedy
shall be cumulative and in addition to and not in derogation of any other
remedy or right given hereunder or now or hereafter existing at law or in
equity, including, without limitation, any remedies conferred upon either party by virtue of their prior
employment relationship. No delay
or omission by either party in
exercising any right, remedy or power hereunder or existing at law or in equity
shall be construed as a waiver thereof, and any such right, remedy or power may
be exercised by any either party from
time to time and as often as may be deemed expedient or necessary by the party in its sole
discretion. Executive acknowledges that
money damages would not be a sufficient remedy for any breach of this Agreement
by Executive and that Employer shall be entitled to specific performance and
injunctive relief as remedies for any such breach, in addition to all other
remedies available at law or equity to Employer.
11. Enforceability. If any
provision of this Agreement shall be invalid or unenforceable, in whole or in
part, then such provision shall be deemed to be modified or restricted to the
extent and in the manner necessary to render the same valid and enforceable, or
shall be deemed excised from this Agreement, as the case may require, and this
Agreement shall be construed and enforced to the maximum extent permitted by
law, as if such provision had been originally incorporated herein as so
modified or restricted, or as if such provision had not been originally
incorporated herein, as the case may be; provided, however, that if the
modification or restriction of some provision of this Agreement deprives any
party hereto of the substantial benefit of his or its bargain as set forth
herein, then such modification or restriction shall be deemed ineffective.
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12. Executives Acknowledgment. Executive acknowledges that he has carefully
read this Agreement and that he has executed it voluntarily and with full
knowledge and understanding of its significance, meaning and binding effect. Executive further declares that he is
competent to understand the content and effect of this Agreement and that his
decision to enter into this Agreement has not been influenced in any way by
fraud, duress, coercion, mistake or misleading information and that he has not
relied on any information except what is set forth herein.
13. Governing Law. Executive and Employer agree that the terms
of this Agreement shall be interpreted under and consistent with the laws of
the Commonwealth of Pennsylvania. In any
legal proceeding, involving directly or indirectly, any matter arising out of
or related to this Agreement, each of the parties hereby irrevocably submits to
the exclusive jurisdiction of the Court of Common Pleas of Berks County,
Pennsylvania or the Federal Court of the Eastern District of Pennsylvania and
agrees not to raise any objection to such jurisdiction or to maintaining of the
venue of any such proceeding, and service of process in any such proceeding may
be duly effected by mailing a copy thereof, by registered mail, postage
prepaid, or by hand delivery or by a nationally recognized overnight delivery
service to each party thereto.
14. Entire Agreement. This Agreement sets forth all of the
promises, covenants, agreements, conditions and understandings between the
parties with respect to the subject matter hereof and, except as may otherwise
be set forth herein, supersedes all prior agreements, covenants, and understandings, inducements or conditions
pertaining thereto, express or implied, oral or written.
15. Amendment and Assignment;
Successors and Assigns. This Agreement may not be modified, altered,
supplemented, terminated or amended except by a writing signed by the parties.
All of the terms and provisions of this Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective heirs,
representatives, successors, assigns and affiliates of the parties hereto.
IN WITNESS WHEREOF, the
parties have executed this Separation Agreement and General Release on date first
set forth above.
EXECUTIVE
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PENN NATIONAL GAMING, INC.
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By:
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/s/ KEVIN
DESANCTIS
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By:
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/s/ PETER M.
CARLINO
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Kevin DeSanctis
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Peter M. Carlino, Chairman
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