UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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PENN NATIONAL GAMING, INC.
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2021 Notice of Annual Meeting and Proxy Statement
Preliminary Proxy Statement Subject to Completion
825 Berkshire Boulevard, Suite 200
Wyomissing, Pennsylvania 19610
NOTICE OF THE ANNUAL MEETING OF SHAREHOLDERS
To be held on June 9, 2021
NOTICE IS HEREBY GIVEN that the 2021 Annual Meeting of Shareholders (the Annual Meeting) of Penn National Gaming, Inc. (the Company), a Pennsylvania corporation, will be held on Wednesday, June 9, 2021, at 10:00 a.m. Eastern time. This year, due to the continuing public health impact of the coronavirus (COVID-19) pandemic, the Annual Meeting will be online and a completely virtual meeting of shareholders. You may attend, vote and submit questions during the Annual Meeting via the live audio webcast on the Internet at www.virtualshareholdermeeting.com/PENN2021. You will not be able to attend the Annual Meeting in person nor will there be any physical location.
Only shareholders of record at the close of business on April 7, 2021 are entitled to notice of, and to vote at, the Annual Meeting and any postponement or adjournment thereof. We are committed to ensuring our shareholders have the same rights and opportunities to participate in the Annual Meeting as if it had been held in a physical location. As further described in the proxy materials for the Annual Meeting, you are entitled to attend the Annual Meeting via the live audio webcast on the Internet at www.virtualshareholdermeeting.com/PENN2021. While we encourage you to vote in advance of the Annual Meeting, you may also vote and submit questions relating to meeting matters during the Annual Meeting (subject to time restrictions). You may vote by telephone, Internet or mail prior to the Annual Meeting.
To be admitted to the Annual Meeting at www.virtualshareholdermeeting.com/PENN2021, you must enter the 16-digit control number found in the control number box included on your Notice Regarding the Availability of Proxy Materials for the Annual Meeting to be held on June 9, 2021 (the Notice) or proxy card (if you receive a printed copy of the proxy materials).
The Annual Meeting will be held for the following purposes:
1. | To elect two Class I directors to serve until the 2024 Annual Meeting of Shareholders and until their respective successors are duly elected and qualified; |
2. | To approve the Companys Second Amended and Restated Articles of Incorporation to increase the number of authorized shares of common stock from 200,000,000 to 400,000,000; |
3. | To approve the Companys Amended and Restated 2018 Long Term Incentive Compensation Plan; |
4. | To ratify the selection of Deloitte & Touche LLP as the Companys independent registered public accounting firm for the 2021 fiscal year; |
5. | To approve, on an advisory basis, the compensation paid to the Companys named executive officers; and |
6. | To consider and transact such other business as may properly come before the Annual Meeting. |
On or about April 27, 2021, we began mailing to certain shareholders the Notice Regarding the Availability of Proxy Materials for the 2021 Annual Meeting of Shareholders to be held on June 9, 2021 (the Notice of Annual Meeting) containing instructions on how to access this Proxy Statement and our Annual Report on Form 10-K for the fiscal year ended December 31, 2020 (the Annual Report) and how to vote online. The Notice of Annual Meeting, Proxy Statement and Annual Report are available at www.proxyvote.com.
Wyomissing, Pennsylvania |
By order of the Board of Directors, | |
April 27, 2021 |
Harper Ko Executive Vice President, Chief Legal Officer and Secretary |
Your vote is very important. You may vote at the virtual meeting or by proxy. Whether or not you plan to virtually attend the Annual Meeting, we encourage you to read this proxy statement and submit your proxy or voting instructions as soon as possible. You may vote by proxy by telephone or Internet (instructions are on your proxy card, voter instruction form or the Notice, as applicable) or, if you received your materials by mail, by completing, signing and mailing the enclosed proxy card in the enclosed envelope. |
2 | PENN NATIONAL GAMING, INC. |
2021 PROXY STATEMENT | 3 |
This Proxy Statement includes forward-looking statements. These statements are not historical facts, but instead represent beliefs of Penn National Gaming, Inc. (the Company) regarding future events, many of which, by their nature are inherently uncertain and outside the Companys control. These statements can be identified by the use of forward-looking terminology such as expects, believes, estimates, projects, intends, plans, seeks, may, will, should, or anticipates or the negative or other variations of these or similar words, or by discussions of future events, strategies or risks and uncertainties. Specifically, forward-looking statements include, but are not limited to, statements regarding: COVID-19; continued demand for our gaming properties and the possibility that our gaming properties may be required to close again in the future due to COVID-19; the impact of COVID-19 on general economic conditions, capital markets, unemployment, and the Companys liquidity, operations, supply chain and personnel; future stock price performance; future margin improvements; stock-based compensation expense; the potential benefits and expected timing of the Perryville transaction with Gaming and Leisure Properties, Inc. (GLPI); the Companys future results of operations, liquidity and revenue, including from our online sports betting and online casino games (iGaming) business in Pennsylvania, Michigan and Illinois and in additional states in the future; the expected benefits and potential challenges of the investment in Barstool Sports, including the anticipated benefits for the Companys online and retail sports betting, iGaming and social casino products; the expected financial returns from the transaction with Barstool Sports; expected future launches of the Barstool-branded mobile sports betting product in additional states; the future revenue and profit contributions of the Barstool-branded mobile sports betting product; our expectations of future results of operations and financial condition, including margins; the purchase of the remaining equity in Barstool Sports; our expectations for our properties; our development projects; our expectations with regard to the impact of competition; the anticipated opening dates of our retail sportsbooks in future states and our proposed Pennsylvania Category 4 casinos in York and Berks Counties; our expectations with regard to acquisitions, potential divestitures and development opportunities, as well as the integration of and synergies related to any companies we have acquired or may acquire; the actions of regulatory, legislative, executive or judicial decisions at the federal, state or local level with regard to our business and the impact of any such actions; our ability to maintain regulatory approvals for our existing businesses and to receive regulatory approvals for our new business partners; the performance of our partners in online sports betting, iGaming and retail/mobile sportsbooks, including the risks associated with any new business, the actions of regulatory, legislative, executive or judicial decisions at the federal, state or local level with regard to online sports betting, iGaming and retail/mobile sportsbooks and the impact of any such actions; and our expectations regarding economic and consumer conditions. Accordingly, the Company cautions that the forward-looking statements contained herein are qualified by important factors that could cause actual results to differ materially from those reflected by such statements. Such factors include, but are not limited to: (a) COVID-19 and its effect on capital markets, general economic conditions, unemployment, consumer spending and the Companys liquidity, financial condition, operations and personnel; (b) industry, market, economic, political, regulatory and health conditions; (c) disruptions in operations from data protection breaches, cyberattacks, extreme weather conditions, medical epidemics or pandemics, such as COVID-19, and other natural or manmade disasters or catastrophic events; (d) the reopening of the Companys gaming properties are subject to various conditions, including numerous regulatory approvals and may be delayed, including for reasons beyond our control; (e) the consummation of the Perryville transaction with GLPI is subject to various conditions, including regulatory approvals, and accordingly may be delayed or may not occur at all, including for reasons beyond our control; (f) potential adverse reactions or changes to business or regulatory relationships resulting from the announcement or completion of the transactions with GLPI; (g) the outcome of any legal proceedings that may be instituted against the Company or its directors, officers or employees; (h) the impact of new or changes in current laws, regulations, rules or other industry standards; and (i) other risks, including those as may be detailed from time to time in the Companys filings with the Securities and Exchange Commission (SEC). For more information on the potential factors that could affect the Companys financial results and business, review the Companys filings with the SEC, including, but not limited to, our Annual Report on Form 10-K, our Quarterly Reports on Form 10-Q and our Current Reports on Form 8-K. We do not intend to update publicly any forward-looking statements except as required by law. In light of these risks, uncertainties and assumptions, the forward-looking events discussed in this Proxy Statement may not occur. |
4 | PENN NATIONAL GAMING, INC. |
LETTER FROM THE PRESIDENT AND CEO TO OUR SHAREHOLDERS April 27, 2021 Dear Fellow Shareholder: 2020 was undoubtedly one of the most challenging times in any of our lives from a personal and professional standpoint. At Penn National Gaming, we endured unprecedented changes to our business, created and implemented comprehensive new COVID-19 health and safety protocols to help keep our team members and guests safe, and withstood a series of natural disasters that damaged several of our southern properties and left many of our team members displaced in the midst of the ongoing pandemic. Yet, despite all the challenges we faced, it was a year of transformational growth for our Company. When the pandemic caused the temporary closure of our entire portfolio, we took decisive steps to preserve the long-term future of the Company, including the sale of Tropicana Las Vegas and the successful completion of two capital raises. Meanwhile, we completely reimagined our operational norms and product offerings to create a more modern and efficient operating model at our properties. As a result, we finished the year with an improved balance sheet to help support our evolution into the nation's best-in-class omni-channel provider of retail and online gaming and sports betting entertainment - all while creating significant shareholder value. I am immensely proud of the way our team members at all levels of our organization came together to weather the storm last year. Our impressive results in 2020 speak to the relentless focus and nimbleness of our corporate and property management teams and they reflect the power of our incredible partnership with our friends at Barstool Sports. What I am equally proud of in looking back on 2020 is how our Company rose to the occasion to support our team members and our communities in these times of great need and heightened social justice awareness. Our 41 properties in 19 states throughout the country donated more than 45 tons of food and PPE directly to area food banks and emergency relief organizations at the height of the pandemic. Many of our properties served as COVID-19 test sites and housed emergency personnel, in addition to organizing food drives and blood donations. While some companies temporarily suspended their charitable giving, we continued to support our charitable partners, contributing $6 million last year from our Penn National Gaming Foundation and our properties to worthwhile charities and civic organizations in our host communities. In addition, we generated more than $14 million in economic development funds for our host communities in Kansas, Indiana and Iowa. During the time our properties were temporarily closed, we extended health benefits to all furloughed team members and also provided $13 million in one-time holiday cash bonuses in December to our non-executive team members companywide to help with the financial impact to their families in 2020. Meanwhile, our executives took significant pay cuts early in 2020 when COVID-19 initially forced property closures and sacrificed end-of-year performance bonuses as well. Through our Penn National Gaming Foundation, we created a COVID-19 Emergency Relief Fund for our team members and raised over $4 million from our Board of Directors, senior management team and our Foundation. In addition, we created the Hurricane Laura Relief Fund and have contributed more than $6.5 million to assist L'Auberge Lake Charles and the community, which includes covering full wages and benefits for our team members while the property was closed. Most recently, we joined Barstool Sports Founder Dave Portnoy's personal mission to help save and sustain small businesses who have been impacted by COVID-19, contributing more than $4.6 million and counting to the non-profit "Barstool Fund." To date, the Fund has raised over $36 million and is actively supporting 288 small businesses around the country.
Finally, on the social justice front, we formed a new Diversity Committee and launched a $1 million annual Penn Diversity Scholarship Program for the Children of Team Members. We also implemented a series of new inclusion-related initiatives to educate our team members across the organization, while continuing to foster a respectful and inclusive workplace. Like most, we were eager to turn the page to 2021. As of March 5 of this year, all of our casino properties were operational for the first time since the pandemic struck. With the continued easing of capacity restraints and the rollout of COVID-19 vaccinations across the country, we have reason to feel a renewed sense of optimism here in 2021. Our core business continues to experience stronger visitation, spend per visit and volumes. We are also seeing encouraging growth in the younger demographic tiers of our database as a steadier flow of guests in all age segments of our database have begun to return to our land-based facilities. We are looking forward to introducing our guests to our new cashless, cardless and contactless technology (which we refer to as the "3 Cs") later this year pending final regulatory approvals, which will improve efficiency and provide a guest experience in line with other industries frequented by younger demographics. On the interactive front, 2020 was highlighted by the successful launch of the Barstool Sportsbook app in Pennsylvania last September. This was a meaningful milestone for our Company and I would like to thank our team at Penn Interactive and our partners at Barstool Sports for their tireless efforts and dedication in bringing this highly regarded product to market. In January of this year, we introduced our Barstool Sportsbook mobile app and fully integrated iCasino in Michigan, and in March we launched our sports betting app in Illinois. By the end of 2021, we anticipate being live with our digital products in at least 10 states. Despite limited external marketing spend, the Barstool Sportsbook app has consistently ranked in the top three or four in market share in the highly competitive Pennsylvania and Michigan sports betting markets and, while early, has delivered strong initial results in Illinois as well. We believe our success in these markets demonstrates the benefits of our structural advantages in the space. Most significantly, our investment in Barstool Sports provides highly efficient customer acquisition and enhanced retention through a fully integrated and rapidly growing media partnership. In addition, our industry leading footprint provides us with a highly valuable casino database, as well as frictionless access to key states and sizable recurring revenue and equity value from our third-party skin partners. We believe these advantages will allow us to win sizable share in each of our markets while delivering best in class profitability. We are also looking forward to continuing to introduce our Barstool-branded retail sportsbooks across our portfolio, including our two new properties opening in Pennsylvania later this year. We're continuing to see very strong results from our retail sportsbooks, with our Indiana properties seeing meaningful increases in both gaming and non-gaming revenues following their rebranding as Barstool Sportsbooks. Finally, we have continued to enhance our industry leading mychoice rewards program, which now connects all of our properties and digital products and is a key component of our omni-channel strategy. Our experience has shown that customers who play across multiple channels are more valuable, and our mychoice program offers its more than 20 million members a wide-range of compelling incentives to consolidate play across our various platforms. Despite its challenges, 2020 was an exceptional year of growth and momentum for our Company and we believe the successful groundwork we laid over the year has positioned us for an exciting 2021 and beyond. As always, I'd like to thank all of our valued shareholders for your ongoing support and confidence. Sincerely, Jay A. Snowden President, Chief Executive Officer and Director
This summary contains highlights about our Company and the upcoming 2021 Annual Meeting of Shareholders. This summary does not contain all of the information that you may wish to consider in advance of the meeting, and we encourage you to read the entire proxy statement before voting.
2021 Annual Meeting of Shareholders
Date and Time: |
Wednesday, June 9, 2021 at 10:00 a.m., Eastern time | |
Location: |
Live audio webcast on the Internet at www.virtualshareholdermeeting.com/PENN2021* | |
Record Date: |
April 7, 2021 |
*This years Annual Meeting will be conducted via audio webcast online and a completely virtual meeting of shareholders due to the ongoing public health impact of the COVID-19 pandemic. You may attend, ask questions relating to meeting matters and vote during the Annual Meeting via the live audio webcast on the Internet at the link above. You will not be able to attend the Annual Meeting in person. There will be no physical location for shareholders to attend.
Voting Matters and Board Recommendations
Proposal | Matter | Board Recommendation | ||
1 |
Election of Class I Directors (David A. Handler and John J. Jacquemin) | FOR each Nominee | ||
2 |
Approval of the Companys Second Amended and Restated Articles of Incorporation to increase the number of authorized shares of common stock from 200,000,000 to 400,000,000 | FOR | ||
3 |
Approval of the Companys Amended and Restated 2018 Long Term Incentive Compensation Plan | FOR | ||
4 |
Ratification of the selection of Deloitte & Touche LLP as the Companys independent registered public accounting firm for the 2021 fiscal year | FOR | ||
5 |
Approval, on an advisory basis, of the compensation paid to the Companys named executive officers | FOR |
Overview of Penn National Gaming
| Nations Leading Omni-Channel Gaming and Sports Betting Operator Penn National Gaming, Inc. is the largest and most diversified regional operator of gaming and racing properties in the United States with 41 properties in 19 states. The Company continues to evolve into a highly innovative omni-channel provider of retail and online gaming and sports betting entertainment. The Company has consistently generated attractive returns for its shareholders. |
| Disciplined Operating Focus In 2020, the Company continued to deploy disciplined operating strategies by managing existing properties with a focus on maximizing profitability and free cash flow, while delivering outstanding gaming and entertainment experiences for customers and supporting the local communities in which it operates. |
2021 PROXY STATEMENT | 7 |
✓ | Decisive Actions in Response to COVID-19
In 2020, we were faced with the novel coronavirus (known as COVID-19) pandemic, which had a devastating impact on the gaming industry. To help combat the spread of COVID-19, we were required to temporarily suspend operations at all of our properties for single or multiple time periods during the year. Once re-opened, our properties operated with reduced gaming and hotel capacity and limited food and beverage offerings in order to accommodate social distancing and health and safety protocols.
In light of COVID-19, we took the following actions to strengthen our balance sheet and improve our liquidity:
We entered into an agreement with our principal landlord, Gaming and Leisure Properties, Inc. (GLPI) and closed on the sale of the Tropicana Las Vegas real estate assets and a new ground lease for our planned Category 4 casino in Morgantown, Pennsylvania, in exchange for $337.5 million in rent credits and the ability to participate in additional upside from the eventual sale of Tropicana Las Vegas by GLPI;
In April 2020, we entered into an amendment to our credit agreement to obtain relief from our financial covenants for a period up to one year.
In May 2020, we completed a public offering of $330.5 million aggregate principal amount of 2.75% unsecured convertible notes due May 15, 2026;
In May 2020, we completed a $345.0 million public offering of 19,166,667 shares of common stock; and
In September 2020, we completed a $982.1 million public offering of 16,100,000 shares of common stock.
As a result of these actions, as of December 31, 2020, we had $1,853.8 million in cash on our balance sheet and no outstanding balance under our $700 million revolving credit facility.
|
✓ | Evolution as an Omni-Channel Provider of Retail and Online Gaming and Sports Betting Entertainment
In 2020 and early 2021, we undertook meaningful actions in our evolution from an owner and manager of gaming and racing properties into an omni-channel provider of retail and online gaming and sports betting entertainment.
Investment in Barstool Sports - In February 2020, we acquired 36% of the common stock of Barstool Sports, a leading digital sports, entertainment and media platform. In connection with the Barstool Sports investment, we became Barstool Sports exclusive gaming partner for up to 40 years and have the right to utilize the Barstool Sports brand for all of our online and retail sports betting and iCasino apps.
Interactive In 2020, we launched our Barstool Sportsbook app in Pennsylvania with over 72,000 registered customers. On January 22, 2021, we launched the Barstool Sportsbook app in Michigan with over 48,000 registered customers. Further, on March 10, 2021, we successfully launched the Barstool Sportsbook app in Illinois. We expect to have our Barstool Sportsbook app live in at least 10 states by the end of 2021.
We currently operate online casino games in Pennsylvania through our HollywoodCasino.com gaming platform. We also launched our online casino games in Michigan in 2021. We currently operate a number of our retail sports books in Colorado, Illinois, Indiana, Iowa, Michigan, Mississippi, Pennsylvania and West Virginia. In addition, we continued to enter into long-term market access agreements with leading sports betting operators (BetMGM, Unibet and Rush Street), which we expect to fund our own online sports betting and iCasino business.
Further, we have entered into long-term market access agreements with third parties (Rush Street and Resorts) to gain access to new states, including sports betting in New York (Rush Street) and iCasino in New Jersey (Resorts).
| |||
✓ | Team Member Assistance
In response to COVID-19, we created a COVID-19 Emergency Relief Fund for our team members and raised over $4 million in contributions from our Board of Directors, senior management team and from our Penn National Gaming Foundation. We also extended health benefits to all furloughed team members and provided $13 million in one-time holiday cash bonuses to our non-executive team members companywide to help with the financial impact to their families. Further, in response to Hurricane Laura, we contributed more than $6.5 million to LAuberge Lake Charles and the surrounding community, including payment of full wages and benefits for our team members.
|
✓ | Diversity
In 2020, we formed a new Diversity Committee and established a $1 million annual diversity scholarship program to support the children of our team members. We also implemented a series of new inclusion-related initiatives to educate our team members across the organization, while continuing to foster a respectful and inclusive workplace. We continue to strive to find the best and most talented executives and Board members. Currently, we are well represented from a gender diversity perspective; 50% of our executive officers and 38% of our Board of Directors are women. | |||
✓ |
Growth by Acquisitions and Development
We entered into an agreement with GLPI to acquire the operations of Hollywood Casino Perryville for $31.1 million, which is expected to close in the second or third quarter of 2021, subject to regulatory approval. Upon completion of this transaction, we will be in our 20th state. We expect to open our Category 4 Casinos in Morgantown and York, Pennsylvania in 2021, subject to regulatory approval. |
8 | PENN NATIONAL GAMING, INC. |
825 Berkshire Boulevard, Suite 200
Wyomissing, Pennsylvania 19610
PROXY STATEMENT
ANNUAL MEETING OF SHAREHOLDERS
June 9, 2021
This Proxy Statement is being furnished to the shareholders of Penn National Gaming, Inc. (the Company, Penn National or PENN) in connection with the solicitation of proxies for the Companys 2021 Annual Meeting of Shareholders (the Annual Meeting) to be held on June 9, 2021 at 10:00 a.m., Eastern time, or at any adjournment or postponement thereof, for the purposes set forth herein and in the accompanying Notice of Annual Meeting. The Annual Meeting will be held via live audio webcast on the Internet at www.virtualshareholdermeeting.com/PENN2021. This solicitation is being made by the Company. This Proxy Statement, the accompanying Proxy Card, and the Annual Report on Form 10-K for the fiscal year ended December 31, 2020 (the Annual Report) are first being made available to our shareholders on or about April 27, 2021.
Corporate Governance Highlights
Independence |
Board Leadership |
Gender Diversity |
Board Tenure |
Overboarding |
Director Skills and Experience | |||||
7 of 8 independent directors
Fully independent Compensation, Audit, Nominating and Corporate Governance Committees |
Separate Chairman and CEO (for over seven years)
Independent Chairman
Lead Independent Director |
3 of 8 board members, or 38%, are female (two of whom hold board leadership positions) | 4 directors have tenure of less than 7 years | No overboarded directors | Extensive experience in gaming, hospitality, capital markets, accounting, tax, technology, risk management, marketing, media and governmental affairs |
2021 PROXY STATEMENT | 9 |
Commitment to Shareholder Value
We have continued to pursue innovative transactions to create value for our shareholders and to undertake new avenues of growth over the last several years:
| On November 1, 2013, we created the gaming industrys first real estate investment trust, Gaming and Leisure Properties, Inc. (GLPI), through a tax free spin-off (the Spin-Off). The Company was an industry pioneer in this regard, as several of its peers have since completed similar transactions. |
| On October 15, 2018, we acquired Pinnacle Entertainment, Inc. in a stock/cash transaction that significantly expanded the Companys position as the nations leading regional gaming operator. |
| In 2019, we pursued online opportunities through Penn Interactive, including the launch of Hollywoodcasino.com, an online real money gaming operation, in Pennsylvania. |
| We completed a significant investment in the first quarter of 2020 in Barstool Sports, Inc., a leading digital sports, entertainment and media platform and have the right to utilize the Barstool Sports brand for all of our online and retail sports betting and iCasino apps. |
| In 2020, we launched the Barstool Sportsbook app in Pennsylvania. In 2021, we launched our Barstool Sportsbook app in Michigan and Illinois. We continue to evolve into an omni-channel provider of retail and interactive gaming, sports betting and entertainment. We expect to have our Barstool Sportsbook app live in ten states by the end of 2021. |
| On March 22, 2021, the Company was added to the S&P 500 Index and we have created value for our shareholders with Total Shareholder Returns (TSR) of 237.9% on a one year basis, 439% on a five year basis, and 987% on a ten year basis. |
The Board was highly instrumental in providing leadership to the Company during the evolution of these notable developments.
Board Overview
The Company operates in a highly specialized and rigorously regulated industry. This environment demands a high level of integrity and accountability in all key aspects of its operations, its management team and its Board of Directors. The Board believes that its structure and composition have been important elements of the Companys development activity, growth and success in the gaming industry over the years. The Board is comprised of individuals who bring unique talents and perspectives to their service on the Board and, as a group, strike a balance between those who have a proven record of effectively working together to responsibly oversee managements operation of the Company and those who bring fresh perspectives and unique insights to the Board. In fact, over the last seven years, the Company has added four talented new directors and looks forward to the long-term benefits of the diversity of their experiences and views. In November 2020, we added a new independent board member, Marla Kaplowitz, to our Board. In addition, no member of the Board serves on the board of more than one other public company, which helps to ensure that each member is fully engaged in his or her duties to the Company. |
To maximize shareholder value, the Board strives to maintain a governance environment where (i) entrepreneurship and prudent risk taking are encouraged, with a focus on both long- and short-term value creation, (ii) shareholder perspectives are understood and long-term relationships with shareholders are fostered through frequent, candid and comprehensive engagement with and disclosure to the Companys shareholders and the investment community, (iii) integrity and accountability are integrated into the Companys management philosophy and operations and (iv) the Company is able to attract, develop and retain industry-leading executive talent to manage the Companys increasingly complex operations.
The Board regularly evaluates the governance environment to enable the Company to respond appropriately to changes, practices and market conditions, as well as suggestions from shareholders and other stakeholders, all in a manner that we believe will continue the Companys long-term record of increasing shareholder value. |
10 | PENN NATIONAL GAMING, INC. |
2021 PROXY STATEMENT | 11 |
12 | PENN NATIONAL GAMING, INC. |
2021 PROXY STATEMENT | 13 |
The Board maintains four standing committees: the Audit Committee, the Compensation Committee, the Nominating and Corporate Governance Committee and the Compliance Committee. The specific duties and operation of each committee are described in more detail below. The Board has determined that each director serving on the Audit Committee, the Compensation Committee or the Nominating and Corporate Governance Committee is independent under the NASDAQ Rules and the applicable rules and regulations of the Securities and Exchange Commission (the SEC). The Compliance Committee also includes subject matter experts who are not directors. Each of the Audit Committee, Compensation Committee and Nominating and Corporate Governance Committee operates under a written charter adopted by the Board of Directors that is reviewed annually and is available at www.pngaming.com/about-us.
Committee Membership
Audit Committee Members |
Compensation Committee Members |
Nominating and Corporate Governance Committee Members |
Compliance Committee Members | |||
Jane Scaccetti, Chair
John M. Jacquemin
Barbara Shattuck Kohn |
Barbara Shattuck Kohn, Chair
John M. Jacquemin
Ronald J. Naples
Marla Kaplowitz |
Barbara Shattuck Kohn, Chair
John M. Jacquemin
Ronald J. Naples |
Thomas A. Auriemma, Chair (non-director)
Ronald J. Naples
Saul V. Reibstein
Marla Kaplowitz
|
Audit Committee
In addition to being independent as noted above, the Board has determined that each member of the Audit Committee also meets the financial literacy requirements under the NASDAQ Rules and is an audit committee financial expert within the meaning of the rules and regulations of the SEC. In addition, Ms. Scaccetti has practiced as a certified public accountant since 1977, which makes her particularly well-qualified to serve as Chair of the Audit Committee.
The principal functions of the Audit Committee are to:
serve as an independent and objective party to monitor the integrity of the Companys financial reporting process and internal control system;
engage the independent registered public accounting firm, review and appraise the audit efforts of the Companys independent registered public accounting firm and internal auditors and monitor the registered public accounting firms independence; and
maintain free and open communication with and among the independent registered public accounting firm, the internal auditors, the Companys finance department, senior management and the Board of Directors.
The Audit Committee is also responsible for reviewing and pre-approving all conflicts of interest and related |
person transactions involving the Board or the Companys executive officers. In discharging its oversight role, the Audit Committee is empowered to investigate any matter brought to its attention and any other matters that the Audit Committee believes should be investigated. The Audit Committee may at any time engage, at the expense of the Company, independent counsel or other advisors, as it deems necessary to carry out its duties.
Compensation Committee
In addition to being independent as noted above, each member of the Compensation Committee is also a non-employee director, as defined under Rule 16b-3 under the Securities Exchange Act of 1934, as amended (the Exchange Act), and an outside director, as defined under Section 162(m) of the Internal Revenue Code of 1986, as amended.
The Compensation Committees authority and responsibilities include:
evaluating the annual performance of the CEO and recommending to the Board for approval all CEO compensation and employment agreements and separation agreements;
evaluating and approving for the other executive officers (other than the CEO) salary, annual short-term incentive opportunities, long-term equity based incentives and other benefits; |
14 | PENN NATIONAL GAMING, INC. |
2021 PROXY STATEMENT | 15 |
16 | PENN NATIONAL GAMING, INC. |
The Company pays fees to each director who is not an employee of the Company. During the year ended December 31, 2020, the annual compensation for each non-employee director (other than Marla Kaplowitz who joined in November 2020) consisted of an annual cash fee of $50,000, plus an additional $10,000 for service on each of the Audit Committee, the Compensation Committee and the Compliance Committee, as applicable. In addition, the Chair of the Audit Committee receives a $15,000 annual retainer, the Chair of the Compensation Committee receives a $10,000 annual retainer, and the Chair of the Nominating and Corporate Governance Committee receives a $5,000 annual retainer. Each non-employee director had the opportunity to elect to receive his or her annual fees in the form of shares of restricted stock with forfeiture restrictions lapsing on the first anniversary of the date of grant. In 2020, each non-employee director (who elected to receive cash compensation in lieu of shares of restricted stock) elected to forgo any of their cash compensation from April 1, 2020 until October 1, 2020.
In 2020, each non-employee director (other than Marla Kaplowitz) received a grant of phantom stock units or restricted stock at his or her election with a value of $250,000 and the Chairman of the Board received a grant of phantom stock units or restricted stock at his election with a value of $375,000. Each award of phantom stock units or shares of restricted stock vests in three equal annual installments from the date of grant. Ms. Kaplowitz joined the Board of Directors on November 23, 2020 and did not receive any compensation in 2020.
2020 Director Compensation Table
The following table sets forth information with respect to all compensation awarded to the Companys non-employee directors for 2020.
Name |
Fees |
Stock Awards ($)(3)(4) |
Total ($) | |||
David A. Handler |
50,000 | 375,004 | 425,004 | |||
John M. Jacquemin |
70,000 | 250,003 | 320,003 | |||
Marla Kaplowitz(1) |
0 | 0 | 0 | |||
Barbara Shattuck Kohn |
42,500 | 250,003 | 292,503 | |||
Ronald J. Naples |
35,000 | 250,003 | 285,003 | |||
Saul V. Reibstein |
60,000 | 250,003 | 310,003 | |||
Jane Scaccetti |
37,500 | 250,003 | 287,503 |
(1) | Ms. Kaplowitz joined the Companys Board of Directors on November 23, 2020. During 2020, Ms. Kaplowitz did not receive any compensation for her service as director, including any cash compensation or stock awards. |
(2) | In 2020, each non-employee director was permitted to elect to receive his or her fees in shares of restricted stock, which vest on the first anniversary of the date of grant. In 2020, Messrs. Handler, Jacquemin, and Reibstein elected to receive shares of restricted stock in lieu of cash. In 2020, Mr. Naples and Messes. Kohn and Scaccetti (who elected to receive his or her fees in cash) forwent these payments from April 1, 2020 to October 1, 2020. |
(3) | The amounts listed are calculated based on the closing price on the day prior to grant date computed in accordance with FASB ASC Topic 718. |
(4) | As of December 31, 2020, the following stock awards were outstanding: (i) for Mr. Handler, 8,498 phantom stock units and 27,448 shares of restricted stock; (ii) for Mr. Jacquemin, 8,498 phantom stock units and 20,810 shares of restricted stock; (iii) for Ms. Kaplowitz, there were no outstanding stock awards; (iv) for Ms. Kohn, 8,498 phantom stock units and 18,132 shares of restricted stock; (v) for Mr. Naples, 17,066 phantom stock units and 9,564 shares of restricted stock; (vi) for Mr. Reibstein, 14,331 phantom stock units and 10,863 shares of restricted stock; and (vii) for Ms. Scaccetti, 18,062 phantom stock units and 8,568 shares of restricted stock. As of December 31, 2020, Mr. Reibstein also had 54,543 stock options outstanding related to his previous service as Chief Financial Officer of the Company. |
2021 PROXY STATEMENT | 17 |
At Penn National Gaming, as we continue our evolution from what began as a single racetrack operator into what is today the nations leading omni-channel provider of retail and online gaming and sports betting entertainment, our Board of Directors and Management Team remain deeply committed to fostering a culture that helps to attract and retain a diverse, talented pool of dedicated team members.
In addition, as a longstanding good corporate citizen, were committed to being a trusted and valued member of our communities and a responsible steward of our finite natural resources.
Penn Nationals Environmental, Social and Governance (ESG) Committee, which reports directly to our President & CEO Jay Snowden and our Nominating and Corporate Governance Committee and the Board of Directors, is comprised of:
Todd George Executive Vice President of Operations
Felicia Hendrix Executive Vice President and Chief Financial Officer
Harper Ko Executive Vice President, Chief Legal Officer and
D. Eric Schippers Senior Vice President, Public Affairs and |
Justin Carter Senior Vice President of Regional
Operations and
Wendy Hamilton Senior Vice President,
Justin Sebastiano Senior Vice President, Finance & Treasurer
Richard Primus Senior Vice President and Chief Information Officer | |
2021 PROXY STATEMENT | 19 |
20 | PENN NATIONAL GAMING, INC. |
amenity bottles. For example, at Hollywood Casino St. Louis, which features a 502-room hotel, weve reduced plastic bottle use by 91% or 550 pounds annually which translates to nearly $50,000 in annual savings for that hotel alone. In addition, replacing paper towels with electric hand dryers and using coreless toilet paper rolls at the casino has led to a reduction of 22,000 pounds of paper waste annually.
In an effort to conserve water, most of our hotel locations encourage guests to participate in linen and towel reuse programs. Behind the scenes, low-flow plumbing fixtures and efficient use of laundry facilities help further curb water waste.
We currently have robust recycling programs in place at most of our properties nationwide (with plans to further expand the program), diverting recyclable materials produced by the casino and hotel operations away from landfills. Composting facilities, currently implemented at five locations, allow even more waste |
to be redirected. Additional waste reduction efforts at select properties such as the use of plant-based and paper straws, the replacement of paper towels with electric hand dryers, and the elimination of Styrofoam help further reduce waste directly at the source. These types of broad sustainability programs are designed to eliminate over 25,000 pounds of waste annually at each property.
Additionally, our operations and IT teams have laid the groundwork for implementing a new generation of cashless, cardless, and contactless technology at our casinos, which we refer to as the 3Cs, that will help to eliminate a significant amount of plastic and paper waste from membership cards and printed tickets from our slot machines, self-serve kiosks and ATMs. It will also lead to an ongoing reduction of direct mail to consumers. We intend to launch this technology initially at our Pennsylvania casinos in the first half of 2021, subject to regulatory approval, and plan to continue rolling it out to other regions in 2021.
|
Penn National Gaming Casino and Hotel Energy Efficieny Projects
ESG KWH Reduction, Green House Gas Emissions and Carbon Footprint Reduction Annually
Locations | Total KWH Annually - 2019 |
LED Lighting Retrofits and Total KWH Reduction |
Annual Percentage of KWH Reduction |
Greenhouse Gas Emissions Reduction (Tons)1 |
Equivalent from switching to LED from incandescent light bulbs1 |
Carbon Free Power Generation w/ Constellation Energy |
||||||||||||||||||
Charles Town |
32,063,541 | 4,910,806 | 15 | % | 3,827 | 131,905 | ||||||||||||||||||
Aurora |
10,873,000 | 1,555,303 | 14 | % | 1,212 | 41,776 | 10,873,000 | |||||||||||||||||
Grantville |
25,368,000 | 1,053,204 | 4 | % | 821 | 28,289 | 25,368,000 | |||||||||||||||||
Tunica |
15,054,000 | 2,350,355 | 16 | % | 1,832 | 63,131 | ||||||||||||||||||
Riverside |
15,429,999 | 3,814,101 | 25 | % | 2,973 | 102,447 | ||||||||||||||||||
Joliet |
17,819,000 | 3,041,119 | 17 | % | 2,370 | 81,685 | 17,819,000 | |||||||||||||||||
Dayton |
8,705,000 | 508,560 | 6 | % | 396 | 13,660 | 8,705,000 | |||||||||||||||||
Tropicana |
26,589,948 | 5,383,320 | 20 | % | 4,196 | 144,597 | ||||||||||||||||||
Zia Park |
5,779,145 | 64,743 | 1 | % | 51 | 1,739 | ||||||||||||||||||
Columbus |
19,404,000 | 2,174,040 | 11 | % | 1,694 | 58,395 | 19,404,000 | |||||||||||||||||
Youngstown |
9,025,000 | 421,497 | 5 | % | 329 | 11,321 | 9,025,000 | |||||||||||||||||
Lawrenceburg |
15,624,000 | 2,229,072 | 14 | % | 1,737 | 59,873 | ||||||||||||||||||
KC Speedway |
17,652,900 | 1,510,210 | 9 | % | 1,177 | 40,564 | ||||||||||||||||||
1st Jackpot |
6,894,000 | 727,032 | 11 | % | 567 | 19,528 | ||||||||||||||||||
Boomtown Bilioxi |
11,879,764 | 1,142,208 | 10 | % | 890 | 30,680 | ||||||||||||||||||
M Resort |
26,023,496 | 1,719,828 | 7 | % | 1,340 | 46,195 | ||||||||||||||||||
Plainridge |
9,812,000 | 1,459,476 | 15 | % | 1,137 | 39,202 | 9,812,000 | |||||||||||||||||
LAuberge Baton Rouge |
24,435,629 | 1,130,776 | 5 | % | 881 | 30,373 | ||||||||||||||||||
Bay St. Louis |
14,500,000 | 2,631,420 | 18 | % | 2,051 | 70,680 | 14,500,000 | |||||||||||||||||
St. Louis |
27,926,410 | 1,242,445 | 4 | % | 968 | 33,372 | ||||||||||||||||||
Bangor |
9,471,000 | 2,423,952 | 26 | % | 1,889 | 65,108 | 9,471,000 | |||||||||||||||||
Toledo |
20,875,000 | 1,737,845 | 8 | % | 1,354 | 46,679 | 20,875,000 | |||||||||||||||||
Council Bluffs-Iowa |
17,936,825 | 1,043,700 | 6 | % | 813 | 28,034 | ||||||||||||||||||
Ameristar-East Chicago |
23,696,400 | 2,376,590 | 10 | % | 1,852 | 63,836 | ||||||||||||||||||
LAuberge Lake Charles |
39,873,314 | 2,171,115 | 5 | % | 1,692 | 58,316 | ||||||||||||||||||
Boomtown New Orleans |
14,687,859 | 1,142,892 | 8 | % | 891 | 30,698 | ||||||||||||||||||
Black Hawk-Colorado |
19,412,028 | 2,412,270 | 12 | % | 1,880 | 64,794 | ||||||||||||||||||
Total |
486,811,258 | 52,377,879 | 11 | % | 40,820 | 1,406,877 | 145,852,000 | 2 |
Notes:
1. Information from the EPA website listed below:
Greenhouse Gas Equivalencies Calculator | Energy and the Environment | US EPA
https://www.epa.gov/energy/greenhouse-gas-equivalencies-calculator
2. Completely Carbon Free Power Generation
2021 PROXY STATEMENT | 21 |
22 | PENN NATIONAL GAMING, INC. |
Diversity Procurement
In 2019, following our acquisition of Pinnacle Entertainment, we formally established a committee to implement a corporate-wide Supplier Diversity Initiative to coordinate efforts across all properties regardless of jurisdictional requirements, with the goal of developing new opportunities for diversity businesses. This initial effort resulted in us more than doubling our diversity spend to $104 million in 2019 with businesses-owned by minorities, women, disabled individuals and veterans. In 2020, weve enhanced our efforts through a membership in the National Minority Supplier Diversity Council (NMSDC). Our head of procurement, Drew Misher, serves on its Corporate Advisory Board, and we were honored last year to sponsor and attend their annual national vendor fair, which was held virtually. We also held a regional networking event in conjunction with the Chicago Minority Supplier Diversity Council last December.
In addition, we are in the process of creating a Penn Small Business Incubator program that will help to onboard minority businesses as suppliers with Penn National. It will also assist them in growing from local to regional and ultimately national suppliers with our Company. |
Penn National is proud to partner with the All-in
Diversity Project, an industry-driven initiative supporting diversity, equality and inclusion in business. Recently we sponsored their #OpenDoors 2021 social media campaign. Spanning Black History Month and International Womens Day, the #OpenDoors campaign is designed to raise awareness of how others affect our professional development and recognize that people do not progress in their careers without the help of someone along the way. The campaign asked contributors to thank someone who opened a door for them, and then pledge to pay it forward and hold the door open for someone else. | |||
Category
|
2019 actual
|
2021 target
| ||
Qualified Diversity Spend |
18%property spend 14%corporate spend WBE8.3% MBE2.2% WMBE3.7%
|
22%property spend 16%corporate spend WBE10% MBE4% Other1%
| ||
Diversity Recruitment
Building a diverse workforce is critical to helping us attract and retain the talent needed to advance our business and create outstanding guest experiences at our properties across the country. We welcome and value customers and team members of all backgrounds and are committed to creating both a work force reflective of the local markets and a supplier base that promotes an environment of diversity, equity, inclusion and empowerment. We are proud that 48% of our team members identify as female and 47% identify as minority across the entire enterprise. We also fully support our LGBTQ+ team members and guests. In 2019, we developed standards at each of our properties to ensure accessibility of facilities and training and communication to team members regarding LGBTQ+ rights. In addition, we support local community organizations, such as |
The LGBTQ Center in Las Vegas, which fights to protect the well-being, positive image, and human rights of the lesbian, gay, bisexual, transgender, and queer community, its allies, and low to moderate income residents in Southern Nevada.
Ethnic Diversity:
25% of all Penn National team members self-identify as African American
18% of all Penn National managers self-identify as African American
8% of all Penn National team members self-identify as Asian Americans
10% of all Penn National team members self-identify as Latino/Hispanic | |||
2021 PROXY STATEMENT | 23 |
We are committed to supporting the well-being and professional development of all of our team members, including tuition reimbursement and other certification programs, with a particular focus on minority and female leadership development. For example, our Women Leading at Penn (WLP) program continued to grow in its third year of operations. The goal of WLP is to network, inspire, and encourage women to pursue leadership roles
and to have female executives champion growth and development at the property and corporate levels. As a result, women held 34% of the leadership positions at the Company in 2019 and weve seen continued growth since then. Today, our Corporate Senior Management Team is 35% female and our Executive Team is 37.5% female, including our new Executive Vice President and Chief Financial Officer; Executive Vice President, Chief Legal Officer and Secretary; and our Senior Vice President, Chief Human Resources Officer.
In addition, we are very proud of the fact that two members of our Board of Directors Barbara Shattuck Kohn and Jane Scaccetti were named to Women Inc.s list of 2019 Most Influential Corporate Directors. The Women Inc.s list features a comprehensive directory of influential female directors, executives, influencers and achievers who are currently serving on the boards of S&P 500/Large-Cap publicly-held companies and making impacts through their leadership. We also welcomed the addition of Marla Kaplowitz to our Board at the end of last year. Ms. Kaplowitz is President and Chief Executive Officer of the American Association of Advertising Agencies (4As), a trade association serving more than 600 member agencies across 1,200 offices |
throughout the U.S., who are responsible for more than 85% of total domestic advertising spend. With the addition of Ms. Kaplowitz, our Board of Directors is now 38% female.
Supporting our Veterans
Later this year well be launching the U.S. Chamber of Commerce Foundations Hiring Our Heroes initiative, which connects veterans, service members, and military spouses with meaningful employment opportunities. We are committed to identifying and hiring full-time team members through this program to further unite the military community with our company in order to create economic opportunity and a stronger, more diversified workforce.
Program Overview:
12-week intern fellowship program for exiting military personnel to gain hands-on, practical experiences in one functional area (e.g., F&B, HR, IT, etc.)
Fellows are placed in exempt roles and report to their properties Monday-Thursday, and to their military base on Fridays for training |
24 | PENN NATIONAL GAMING, INC. |
2021 PROXY STATEMENT | 25 |
26 | PENN NATIONAL GAMING, INC. |
|
||||
At Metanoia Gala, from left: Michelle and State Senator Ronnie Johns, Donna and Governor John Bel Edwards, Reverend Jeff Bayh, Mary Kadair, and Eric Schippers, Sr. Vice President, Penn National Gaming.
|
COVID-19 Response
Our team members are the life blood of our Company. During the time our properties were temporarily closed as a result of the COVID-19 outbreak, we extended health benefits to all furloughed team members and provided $13 million in holiday cash bonuses to our non-executive team members companywide to help with the financial impact to their families. Meanwhile, our executives took significant pay cuts and sacrificed end-of-year performance bonuses.
Through our Penn National Gaming Foundation, we created a COVID-19 Emergency Relief Fund for our team members and raised over $4 million through personal donations from our CEO, Senior Management team, Corporate Board of Directors and property general managers, in addition to contributions from our Foundation and property employee assistance funds.
Most recently, we joined Barstool Sports Founder Dave Portnoys personal mission to help save and sustain small businesses which have been impacted by COVID-19, contributing more than $4.6 million, and counting, to the non-profit Barstool Fund. To date, the Fund has raised over $36 million and is actively supporting 288 small businesses around the country. |
This initiative is in addition to our collective effort in October to save the historic Reading Terminal Market in Philadelphia, which was suffering from decreased business as a result of COVID-19 and launched an online fundraising campaign to assist with its survival. Within 24 hours, Penn National and Barstool raised enough money to meet and exceed their fundraising goal. Our effort ensured the survival of an organization that supports family businesses, educational opportunities for low-income Philadelphia youth, and is one of the largest sites for the redemption of SNAP benefits in Pennsylvania.
Meanwhile, during the mandatory COVID-19 temporary closures, our 41 properties in 19 states throughout the country donated more than 45 tons of food to local food banks and homeless shelters in our communities, ensuring our perishable food items could help those in need at the height of the pandemic. In addition, our properties donated thousands of unused masks and surgical gloves to first responders and health care providers. Many of our properties served as COVID-19 test sites and housed emergency personnel, in addition to organizing food drives and blood donations.
| |||
2021 PROXY STATEMENT | 27 |
Charitable Efforts
At the onset of the COVID-19 pandemic, our properties across the country stepped up to donate food items to
our local communities, ensuring our perishables would go to the homes of our neighbors in need. In times of crisis, we come together. We support the communities in which we live and work.
River City Casino & Hotel
St. Louis, MO
River
City Casino & Hotel has donated $7,000 in produce and dairy to a variety of charities, including Feed My People, Arnold Food Pantry, Aging Ahead and St. Louis Area Food Bank. These are the organizations River City supports
regularly.
Hollywood Casino Aurora & Hollywood Casino Joliet
Aurora & Joliet, IL
Hollywood Casino Joliet recently donated more than $8,000 of food to Catholic Charities Homeless Shelter in Joliet, and Hollywood Casino Aurora donated
perishables to Aurora Interfaith Food Pantry, with its executive team staying to help with pantry bag items.
Greektown Casino
Detroit, MI
Greektown donated perishable food items, water, gloves and toilet paper to Gleaners Community Food
Bank, Wayne County Meals on Wheels, Mariners Inn (housing for displaced veterans) and Veterans Solutions. Greektown is also working with the city of Detroit and local medical facilities to offer their facilities as a makeshift hospital and drive
through testing center.
Zia Park Casino Hotel
& Racetrack
Hobbs, NM
Zia Park donated $6,000 in food to Hearts Desire Inc., Hobbs Guidance Center, Isaiah's Soup Kitchen and Options Inc. woman's shelter.
28 | PENN NATIONAL GAMING, INC. |
The Meadows Racetrack & Casino
Washington, PA
The Meadows donated more than 10 pallets of food, totaling more than
$6,600, to 412 Food Rescue, Agency on Aging, City Mission and Greater Washington County Food Bank.
Medical Equipment Donations
Our properties also donated our stocked surgical masks and gloves to hospitals and first responders during the
crisis
Hollywood Casino Toledo
Toledo, OH
Hollywood Toledo donated $5,000 in perishable food items to local food banks and charities, including the Cherry Street Mission in Toledo, among others.
Over 60 organizations & community
centers helped
Hollywood Casino at Kansas Speedway
Kansas City, KS
Hollywood Casino at Kansas Speedway donated 3,628 pounds of dairy and produce to Harvesters-The Community Food Network.
Hollywood Casino at Charles Town Races
Ranson, WV
Hollywood Casino at Charles Town Races is distributed perishable foods to charitable organizations, including partnering with the Jefferson County Community Ministries.
Ameristar Black Hawk Casino Hotel
Black Hawk,
CO
Ameristar Black Hawk donated 7,778 lbs of food to the Food Bank of the Rockies. Estimated value of the donation was $20,000-25,000.
M Resort Spa Casino
Las Vegas, NV
M Resort donated perishable food items to team members. Pre-loaded
pantry bags were given out by the management team to team members through a drive-up distribution process.
2021 PROXY STATEMENT | 29 |
Ameristar Casino Hotel East Chicago & Hollywood Casino and Hotel Lawrenceburg
Chicagoland
Ameristar East Chicago and
Hollywood Lawrenceburg have donated perishable food items to the East Chicago Salvation Army, Northwest Indiana Food Bank, and the Dearborn Food Pantry.
Ameristar Casino Hotel Council Bluffs
Council Bluffs, IA
Ameristar Council Bluffs has
donated $9,600 in food items to MOHM's Place, which provides meals to single men, women, children and families who are experiencing food insecurity.
Ameristar Casino Hotel Vicksburg
Vicksburg, MS
Ameristar Casino donated food to the
Salvation Army and Caffe Paradiso. Caffe Paradiso works with other local restaurants, including Fit Chef and Gumbo Pot, to deliver meals from donations to over 300 people in need per day.
75,000 LBS of food donated
Hollywood Casino &
Hotel Tunica & 1st Jackpot Casino Tunica
Robinsonville, MS
Hollywood Tunica and 1st Jackprt donated over five pallets of food to Sacred Heart Southern Mission to help support them in their mission to provide critically needed assistance to
families in difficult times.
30 | PENN NATIONAL GAMING, INC. |
Hollywood Casino St. Louis Maryland Heights, MO Hollywood St. Louis sent 7 pallets of goods worth more than $8,600 to the St Louis
Area Food-bank. In addition, they donated surplus food to various charities, including Mimi's Food Kitchen, the St. Louis Area Food Bank, Feed My People, and Arnold Food Pantry, and are working with Mrs. Kehoe to facilitate food delivery to children
in central Missouri. Hollywood Gaming at Mahoning Valley Race Course Youngstown, OH Hollywood Mahoning Valley delivered everything from its kitchens that couldn't be frozen to Harvest Food Bank. In addition, they donated non-perishable items from
their March food drive promotion. Boomtown Casino & Hotel New OrleansHarvey, LA Boomtown New Orleans has donated perishable foods to charitable organizations, including Grace Baptist Church. Margaritaville Resort Casino& Boomtown Casino
HotelBossier City, LAMargaritaville and Boomtown Bossier City donated 2 pallets of food to the Rescue Mission, VA, Providence House, the Bossier Council on Aging and NWLA Veterans Home. Hollywood Casino Hotel & Raceway Bangor
Bangor,
ME
Hollywood Bangor donated $3,000 in food to the Good Shepard Food Bank.
Hollywood Casino Columbus
Columbus, OH
Hollywood Columbus put together 200 boxes of perishable items (each box worth approximately $24 in food items each) and
distributed the same to our lower-paid team members. Total contribution was $5,000.
Hollywood Gaming at Dayton Raceway and Hollywood Casino Toledo
Dayton, OH
Hollywood Dayton donated $2,500 in food items to the Dayton Food Bank. Hollywood
Toledo donated $5,000 in perishable food items to local food banks and charities, including the Mahoning Valley Second Harvest Food Bank and the Cherry Street Mission in Toledo, among others.
2021 PROXY STATEMENT | 31 |
32 | PENN NATIONAL GAMING, INC. |
2021 PROXY STATEMENT | 33 |
ELECTION OF CLASS I DIRECTORS
Information about Nominees and Other Directors
The Board of Directors currently consists of eight members: David A. Handler (Chairman), John M. Jacquemin, Marla Kaplowitz, Barbara Shattuck Kohn, Ronald J. Naples, Saul V. Reibstein, Jane Scaccetti and Jay A. Snowden. The directors are organized into three classes, with each class elected to serve a three year term. Two Class I directors will be elected at the Annual Meeting to hold office, subject to the provisions of the Companys bylaws, until the annual meeting of shareholders of the Company to be held in 2024 and until their respective successors are duly elected and qualified.
Class I Nominees
The following table sets forth the name, independence status, number of other public company boards, principal occupation and term of service of each person who has been nominated to be a director of the Company. Each nominee has consented to be named as a nominee and, to the knowledge of the Company, is willing to serve as a director, if elected. Should either of the nominees not remain a nominee at the end of the meeting (a situation which is not anticipated), solicited proxies may be voted by the holders of the proxies for a substitute nominee (unless a proxy contains instructions to the contrary).
Name of Nominee | Independent | Other Public Company Boards |
Principal Occupation | Term (if elected) | ||||
David A. Handler |
Yes | None |
Partner, Centerview |
2024 | ||||
John M. Jacquemin |
Yes | None |
President, Mooring |
2024 |
34 | PENN NATIONAL GAMING, INC. |
Nominee Qualifications
David A. Handler
Class I Director
Age: 56
Director Since: 1994 |
Business Experience: Mr. Handler has served as the Companys Chairman of the Board since June 2019 and as a director since 1994. In August 2008, Mr. Handler joined Centerview Partners as a Partner. Centerview Partners is an independent financial advisory and private equity firm. From April 2006 to August 2008, he was a Managing Director at UBS Investment Bank.
Other Public Company Boards: None.
Mr. Handler has considerable investment banking and capital markets experience, which includes a focus on mergers and acquisitions and other significant transactions (including many in the technology space), which compliments his long-term exposure to the gaming industry. Mr. Handlers background has been an invaluable asset to the Company over the years, particularly in connection with evaluating potential acquisitions and financing opportunities.
| |
John M. Jacquemin
Class I Director
Age: 74
Director Since: 1995 |
Business Experience: Mr. Jacquemin is President of Mooring Financial Corporation, a group of financial services companies founded by Mr. Jacquemin in 1982 that specializes in the purchase and administration of commercial loan portfolios.
Other Public Company Boards: None.
Mr. Jacquemin has significant experience with private equity funds specializing in restructurings, workouts and the valuation of distressed debt. The nature of these investments requires a sophisticated understanding of financial statements to enable the identification of growth opportunities in troubled companies, as well as valuation expertise. This experience brings unique perspective to the Board and is enhanced by Mr. Jacquemins financial sophistication and financial statement expertise and long-term exposure to the gaming industry.
|
In addition to the qualifications of each nominee for director described above, David A. Handler and John M. Jacquemin are standing for re-election based upon the judgment, financial acumen and skill they have demonstrated as Board members, as well as their demonstrated commitment to serve on the Board.
The Board of Directors unanimously recommends that the shareholders vote FOR each of the nominees.
2021 PROXY STATEMENT | 35 |
Continuing Directors
The following table sets forth the name, independence status, number of other public company boards, principal occupation and term of service of each person who will continue as a director after the Annual Meeting.
Name | Independent |
Other Public |
Principal Occupation | Term Expires | ||||
Class II Directors:
| ||||||||
Barbara Shattuck Kohn | Yes | 1 | Director of Fluent, Inc. and former Principal of Hammond Hanlon Camp LLC | 2022 | ||||
Ronald J. Naples |
Yes | 1 | Director of P.H. Glatfelter Company, Glenmede Trust Company and the Philadelphia Contributionship | 2022 | ||||
Saul V. Reibstein | Yes | 1 | Director of Vishay Precision Group, Inc. and former Executive Vice President, Chief Financial Officer and Treasurer of Penn National Gaming, Inc. | 2022 | ||||
Class III Directors:
| ||||||||
Marla Kaplowitz | Yes | None | President and Chief Executive Officer of the American Association of Advertising Agencies | 2023 | ||||
Jane Scaccetti |
Yes | 1 | Chief Executive Officer of Drucker & Scaccetti, P.C. and Director of Myer Industries, Inc. | 2023 | ||||
Jay A. Snowden | No | None | President and Chief Executive Officer of Penn National Gaming, Inc. | 2023 |
36 | PENN NATIONAL GAMING, INC. |
Continuing Directors Qualifications
Barbara Shattuck Kohn
Class II Director
Age: 70
Director Since: 2004 |
Business Experience: Ms. Kohn serves as a director of Fluent, Inc. Ms. Kohn was a Principal at Hammond Hanlon Camp LLC, a strategic advisory and investment banking firm from 2012 to 2018. Ms. Kohn also serves as a director of Emblem Health, one of the nations largest nonprofit health plans. She has previously served as a director of Computer Task Group and a division of Sunlife Financial Corporation. Prior to joining Hammond Hanlon Camp LLC in 2012, Ms. Kohn was a Managing Director of Morgan Keegan Raymond James. Morgan Keegan & Company, Inc. was acquired by Raymond James Financial from Regions Financial Corp. and was the successor to Shattuck Hammond Partners, an investment banking firm Ms. Kohn co-founded in 1993. Prior to 1993, she spent 11 years at Cain Brothers, Shattuck & Company, Inc., an investment banking firm she also co-founded. From 1976 to 1982, she was a Vice President of Goldman, Sachs & Co. Ms. Kohn began her career as a municipal bond analyst at Standard & Poors Corporation. Ms. Kohn was named to Women Inc.s list of 2019 Most Influential Corporate Directors.
Other Public Company Boards: Fluent, Inc.
Ms. Kohn has substantial experience in investment banking, capital markets and project finance. Further, she possesses the experience, financial sophistication and financial statement expertise necessary to evaluate potential acquisition and financing opportunities for the Company, and she was instrumental in evaluating both the preferred equity investment in the Company by Fortress Investment Group, LLC in 2008 and the spin-off of the Companys real estate in 2013. This financial background is ideally suited for Ms. Kohns service on the Audit and Compensation Committees, and her reputation, integrity, judgment and proven leadership ability meets both the Boards high standards and the rigorous requirements of the various regulatory agencies with jurisdiction over the Company.
| |
Ronald J. Naples
Class II Director
Age: 75
Director Since: 2013 |
Business Experience: Mr. Naples serves as a director of P.H. Glatfelter Company, Glenmede Trust Company and the Philadelphia Contributionship. Mr. Naples served as Chairman of the Pennsylvania Stimulus Oversight Commission and Chief Accountability Officer for the Commonwealth of Pennsylvania, having been appointed to that position by the Governor of Pennsylvania, from April 2009 until February 2011. From 1997 until May 2009, Mr. Naples was the Chairman of Quaker Chemical Corporation, a public specialty chemical company serving the metalworking and manufacturing industries worldwide, and served as Quakers Chief Executive Officer from 1995 to 2008. Previously, Mr. Naples was Chairman and Chief Executive Officer of Hunt Manufacturing Company, a public company, from 1981 to 1995. He also served as Chairman of the Federal Reserve Bank of Philadelphia.
Other Public Company Boards: P.H. Glatfelter Company
Mr. Naples has significant business experience as a chief executive officer and director of large, publicly traded corporations. Mr. Naples has significant government and regulatory experience as Chairman of the Pennsylvania Stimulus Oversight Commission and Chief Accountability Officer for the Commonwealth of Pennsylvania and as Chairman of the Federal Reserve Bank of Philadelphia. Mr. Naples impressive educational background and distinguished military career as well as his reputation, integrity, judgment and proven leadership ability meets both the Boards high standards and the rigorous requirements of the various regulatory agencies with jurisdiction over the Company. In addition, Mr. Naples military, leadership and regulated company experience is invaluable in the context of his service on the Compliance Committee.
|
2021 PROXY STATEMENT | 37 |
Saul V. Reibstein
Class II Director
Age: 72
Director Since: 2018
(and previously a director from 2011 to 2014) |
Business Experience: Mr. Reibstein served on the Companys board of directors and was Chairman of the Audit Committee from June 2011 until his appointment as Senior Vice President and Chief Financial Officer in November 2013. Mr. Reibstein retired as the Companys Executive Vice President, Chief Financial Officer and Treasurer on December 31, 2016 and was employed by the Company as an executive advisor from January 1, 2017 through December 31, 2017. From 2004 until joining the Company as an executive, Mr. Reibstein served as a member of the senior management team of CBIZ, Inc., a New York Stock Exchange-listed professional services company, where, as Executive Managing Director, he was responsible for the management of the CBIZ New York City Financial Services office operations and the overall international activities of the Financial Services Group. Mr. Reibstein has over 40 years of public accounting experience, including 11 years serving as a partner in BDO Seidman, a national accounting services firm, where he was the partner in charge of the Philadelphia office from June 1997 to December 2001 and Regional Business Line Leader from December 2001 until September 2004. In addition, since July 2010, Mr. Reibstein has served as a member of the Board of Directors of Vishay Precision Group, Inc., a publicly traded company, where he is Chairman of the Audit Committee and a member of both of its Compensation and Nominating and Corporate Governance Committees. Mr. Reibstein is a licensed CPA in Pennsylvania and received a Bachelor of Business Administration from Temple University.
Other Public Company Boards: Vishay Precision Group, Inc.
Mr. Reibstein brings to our Board extensive familiarity with the Company and the gaming industry, having previously served as the Companys Executive Vice President, Chief Financial Officer and Treasurer, as well as accounting, finance, risk management and strategic management expertise for both public and private companies, including gaming companies.
| |
Marla Kaplowitz
Class III Director
Age: 55
Director Since: 2020 |
Business Experience: Ms. Kaplowitz has served as President and Chief Executive Officer of the American Association of Advertising Agencies (4As), a trade association serving more than 600 member agencies throughout the United States since 2017. From 2011 to 2017, Ms. Kaplowitz served as Chief Executive Officer of North America of MEC Global (now Wavemaker Global), a global media agency. Ms. Kaplowitz also spent 12 years at MediaVest, where she led Procter & Gambles communications planning for North America and worked with brands including Avon, Dennys, Heineken and Norelco. She began her career at DMB&B and later joined Ammirati Puris Lintas, where she managed the agencys Labatt, Nickelodeon Networks and Unilever accounts.
Other Public Company Boards: None
Ms. Kaplowitz brings marketing and digital transformation expertise to the Board as President and Chief Executive Officer of the American Association of Advertising Agencies (4As) and other senior management positions. Her experience brings to our Board significant marketing and digital experience, which is invaluable in the context of the Company evolving into a leading ominichannel provider of retail and interactive gaming, sports betting and entertainment.
|
38 | PENN NATIONAL GAMING, INC. |
Jane Scaccetti
Class III Director
Age: 67
Director Since: 2015 |
Business Experience: Ms. Scaccetti is the Chief Executive Officer of Drucker & Scaccetti, P.C., a public accounting and business advisory firm, of which she has been a principal since 1990. In addition, Ms. Scaccetti is a member of the Board of Directors of Myers Industries, Inc., a New York Stock Exchange listed company, and is a member of its Audit and Governance Committees. Ms. Scaccetti also serves as Chair of the Board of Directors of Mathematica Policy Research, Inc., trustee of Temple University, and a trustee of Salus University. In addition, Ms. Scaccetti served as a director and audit committee chair of The Pep Boys Manny, Moe & Jack from 2002 until 2016, and of Nutrition Management Services Company from 1992 until 2010. Ms. Scaccetti was named to Women Inc.s list of 2019 Most Influential Corporate Directors.
Other Public Company Boards: Myers Industries, Inc.
Ms. Scaccetti brings financial expertise as a practicing CPA since 1977, as well as her management expertise as chief executive officer of a public accounting and business advisory firm and as a director of other publicly traded companies. Her experience brings unique perspective to the Board and the Board is enhanced by Ms. Scaccettis financial sophistication and expertise.
| |
Jay A. Snowden
Class III Director
Age: 45
Director Since: 2019 |
Business Experience: In August 2019, the Board elected Mr. Snowden as a Board member. Effective January 1, 2020, Mr. Snowden became the Companys Chief Executive Officer. One of his first actions as Chief Executive Officer was to acquire a minority interest in Barstool Sports, a leading sports media and entertainment company, which is the centerpiece of his vision to evolve Penn National from a regional casino operator into a leading omnichannel provider of land-based and interactive gaming, sports betting and entertainment. Despite the challenges presented by the COVID-19 pandemic in his first few months as Chief Executive Officer, which included the temporary closure of all of the Companys properties, Mr. Snowden successfully navigated Penn National through a series of mitigation efforts and capital raises to help secure the Companys future. Mr. Snowden joined the Company in October 2011 as Senior Vice President-Regional Operations and was promoted to Chief Operating Officer in January 2014. In March 2017, Mr. Snowden was named President and Chief Operating Officer and led the Companys successful margin improvement plan, as well as the integration of Pinnacle Entertainment, an acquisition which nearly doubled the size of Penn National. Prior to joining the Company, Mr. Snowden was the Senior Vice President and General Manager of Caesars and Harrahs in Atlantic City, and prior to that, held various leadership positions with them in St. Louis, San Diego and Las Vegas.
Other Public Company Boards: None
Mr. Snowden brings well-established gaming, hospitality and interactive gaming, sports betting, and entertainment experience to our Board of Directors based on his extensive experience in the rapidly evolving gaming industry. Given his achievements in leading the Company as President and Chief Operating Officer and now as President and Chief Executive Officer, he has unique perspectives and experience related to the strategic direction of the Company and the broader gaming industry.
|
2021 PROXY STATEMENT | 39 |
42 | PENN NATIONAL GAMING, INC. |
2021 PROXY STATEMENT | 43 |
44 | PENN NATIONAL GAMING, INC. |
Grants under the 2018 Plan are discretionary and no grants have been made that are conditioned upon approval of the Amendment and Restatement. Consequently, it is not possible to predict the future grants that will be made and benefits that will be received by participants in the 2018 Plan. The table below reflects all equity awards granted under the 2018 Plan from its adoption through April 6, 2021 to the individuals and groups listed in the table. Note that the amounts in the table reflect the actual number of shares underlying awards, not the 2.3 shares that are counted against the 2018 Plans share reserve with respect to full-value awards, as described under Number of Shares Available for Issuance above. As of April 6, 2021, the closing price of the Companys common stock was $104.09.
Name and Title(1) | Number of Shares Underlying Options Granted |
Target Number of Shares Underlying Other Awards Granted(2) | ||||||||
Jay A. Snowden President and Chief Executive Officer
|
1,278,548 | 43,397 | ||||||||
Carl Sottosanti Former EVP, General Counsel and Secretary
|
194,612 | 37,901 | ||||||||
David Williams Former EVP and Chief Financial Officer
|
44,905 | 14,469 | ||||||||
William J. Fair Former EVP and Chief Financial Officer
|
86,218 | 23,953 | ||||||||
All current executive officers, as a group
|
1,391,982 | 70,137 | ||||||||
All current directors who are not current executive officers as a group
|
44,543 | 139,138 | ||||||||
David A. Handler
|
0 | 38,298 | ||||||||
John J. Jacquemin
|
0 | 29,051 | ||||||||
Each associate of any such directors, executive officers or nominees
|
0 | 0 | ||||||||
Each other person who received or is to receive 5 percent of such options or awards
|
0 | 0 | ||||||||
All employees, including officers who are not current executive officers, as a group
|
870,411 |
2,125,950 |
(1) | Mr. Sottosanti retired from the Company as Executive Vice President, General Counsel and Secretary on December 31, 2020. Mr. Williams became Executive Vice President and Chief Financial Officer on March 3, 2020 and resigned on December 31, 2020. Mr. Fair resigned as Executive Vice President and Chief Financial Officer on March 3, 2020. For summaries of the agreements relating to each of these departures, see Sottosanti Retirement Agreement, Williams Separation Agreement, and Fair Executive Agreement in this Proxy Statement. |
(2) | Amounts shown in this column represent the number of performance-based restricted stock and performance-based phantom stock units granted under the 2018 Plan at target levels. Depending on the level of achievement of applicable performance goals, an amount in excess of the target award may be earned. |
For further information regarding shares of our common stock that we may issue upon the exercise of options, warrants and rights under our equity compensation plans, see Equity Compensation Plan Information on page 70 of this Proxy Statement.
2021 PROXY STATEMENT | 45 |
46 | PENN NATIONAL GAMING, INC. |
2021 PROXY STATEMENT | 47 |
RATIFICATION OF THE SELECTION OF DELOITTE & TOUCHE LLP AS THE COMPANYS INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM FOR THE 2021 FISCAL YEAR
The Audit Committee has selected Deloitte & Touche LLP (Deloitte) as the Companys independent registered public accounting firm for the fiscal year ending December 31, 2021, and the shareholders are being asked to ratify this selection. Deloitte has served as the Companys independent registered public accounting firm since 2017. All audit and non-audit services provided by Deloitte are approved by the Audit Committee. Deloitte has advised the Company that it has no direct or material indirect interest in the Company or its affiliates. Representatives of Deloitte are expected to virtually attend the Annual Meeting, will have the opportunity to make a statement if they desire to do so and are expected to be available to respond to appropriate questions.
Professional Fees
A description of aggregate fees for professional services performed by Deloitte, which served as our independent public accounting firm for fiscal 2020 and 2019, is as follows:
Fiscal 2020 |
Fiscal 2019 | |||
Audit Fees(1) |
$6,406,587 | $6,302,934 | ||
Audit-Related Fees(2) |
$222,500 | $160,000 | ||
Tax Fees(3) |
$118,616 | | ||
Other Fees(4) |
| $6,895 | ||
Total Fees |
$6,747,703 | $6,469,829 |
(1) Audit fees include fees associated with the annual audit, reviews of the Companys quarterly reports on Form 10-Q, registration statement on Form S-3 (including equity and debt offerings in 2020), annual audits required by law for certain jurisdictions, comfort letters, consents and other audit and attestation services related to statutory or regulatory filings. Audit fees also include the audit of the Companys internal controls over financial reporting, as required by Section 404 of the Sarbanes Oxley Act of 2002. In addition, audit fees in 2019 included $600,000 for regulatory audits for Greektown and Penn Interactive and audit procedures related to Margaritaville.
(2) Audit related fees in 2020 included fees associated with an enterprise risk program and due diligence related to the Perryville transaction. Audit related fees in 2019 included purchase price accounting and lease assessments for the Greektown and Margaritaville transactions.
(3) Tax fees for 2020 included fees for tax compliance services for Sam Houston and analysis of non-operating losses utilization.
(4) Other fees for 2019 include fees with respect to state regulatory filings.
Audit Committee Pre-Approval Policy
The Audit Committees Audit and Non-Audit Services Pre-Approval Policy provides for the pre-approval of audit and non-audit services performed by the Companys independent registered public accounting firm. Under the policy, the Audit Committee may pre-approve specific services, including fee levels, by the independent registered public accounting firm in a designated category (audit, audit-related, tax services and all other services). The Audit Committee may delegate, in writing, this authority to one or more of its members, provided that the member or members to whom such authority is delegated must report their decisions to the Audit Committee at its next scheduled meeting. In 2020, all of the services provided by Deloitte were approved by the Audit Committee prior to commencement of services.
The Board of Directors unanimously recommends that shareholders vote FOR the ratification of the selection of Deloitte & Touche LLP as the Companys independent registered public accounting firm for the fiscal year ending December 31, 2021.
48 | PENN NATIONAL GAMING, INC. |
Management is responsible for the preparation, presentation and integrity of the Companys financial statements, accounting and financial reporting principles, internal controls and procedures designed to ensure compliance with accounting standards, applicable laws and regulations. The Audit Committee is responsible for appointing, compensating, overseeing and, where appropriate, discharging and replacing the Companys independent registered public accounting firm (the independent accounting firm). In addition, the Audit Committee is involved in the selection of the lead audit engagement partner whenever a rotational change is required by applicable law or listing standards or for any other reason. The independent accounting firm is responsible for expressing an opinion on the conformity of the Companys audited financial statements with generally accepted accounting principles. In addition, the independent accounting firm will express its own opinion on the effectiveness of the Companys internal controls over financial reporting. The Audit Committee is responsible for monitoring and overseeing these processes.
The function of the Audit Committee is not intended to duplicate or attest as to the activities of management and the independent accounting firm, nor can the Audit Committee certify that the independent accounting firm is independent under applicable rules. The Audit Committee serves a board level oversight role, in which it provides advice, counsel and direction to management and the independent accounting firm on the basis of the information it receives, discussions with management and the independent accounting firm and the experience of the Audit Committees members in business, financial and accounting matters.
In this context, the Audit Committee met and held numerous discussions with management and the independent accounting firm during 2020. Management represented to the Audit Committee that the Companys consolidated financial statements were prepared in accordance with generally accepted accounting principles, and the Audit Committee has reviewed and discussed the consolidated financial statements with management and the independent accounting firm. The Audit Committee discussed with the independent accounting firm matters required to be discussed by the applicable standards of the Public Company Accounting Oversight Board.
The independent accounting firm also provided to the Audit Committee the written disclosures and the letter required by Rule 3526 of the Public Company Accounting Oversight Board, Communications with Audit Committees Concerning Independence, and the Audit Committee discussed with the independent accounting firm the firms independence.
Based upon the Audit Committees discussion with management and the independent accounting firm and the Audit Committees review of the representations of management and the report of the independent accounting firm on the Consolidated Financial Statements, the Audit Committee recommended that the Board of Directors include the audited consolidated financial statements in the Companys Annual Report on Form 10-K for the fiscal year ended December 31, 2020 filed with the SEC on February 26, 2021.
Audit Committee of the Board of Directors
Jane Scaccetti, Chair
John M. Jacquemin
Barbara Shattuck Kohn
2021 PROXY STATEMENT | 49 |
Compensation Discussion and Analysis
For purposes of the following CD&A, unless context otherwise requires, the terms Committee, we or our refer to the Compensation Committee of the Board, a committee made up of entirely independent directors.
Executive Compensation Highlights
Our compensation program:
| Includes a combination of fixed and variable pay, with objective measures designed to create sustainable long-term value for our shareholders; |
| Defers a significant portion of variable pay as equity based awards, encouraging both shareholder alignment and executive retention; |
| Includes both long-term and short-term components; |
| Focuses on at risk compensation, with 71% of our named executive officers total compensation at risk in 2020; |
| Benchmarks compensation at the median of an appropriate industry peer group; and |
| Implements performance based vesting for a meaningful portion of equity awards for the Companys named executive officers. |
Key Features of Our Executive Compensation Program
What We Do |
What We Dont Do | |||||
✓ |
Align Pay with Performance Our program design and outcomes focus on at risk compensation to better align compensation earned with the Companys performance |
Ó |
No Single Trigger Change in Control We do not provide for single trigger vesting or unusual severance multiples upon a change in control in our equity plan and employment agreements | |||
✓ |
Performance Awards Our program includes equity awards with performance based vesting paid at the end of the three-year period with 67% of long-term incentive pay to named executive officers tied to performance metrics |
Ó |
No Discounting or Repricing of Options We prohibit discounting or repricing options and restrict margin lending | |||
✓ |
Multiple and Objective Performance Metrics Incentive compensation is tied to both short- and long-term measures to ensure balanced incentives |
Ó |
No Supplemental Retirement Plans We do not have any defined benefit pension programs or other supplemental executive retirement plans | |||
✓ |
Share Ownership Guidelines All directors and named executive officers exceed the Companys significant stock ownership requirements |
Ó |
No Excessive Perquisites Our executive officers have very limited perquisites | |||
✓ |
Clawback Policy Our policy provides for the recovery of compensation in certain circumstances |
Ó |
No Hedging or Pledging Hedging and pledging of the Companys stock is prohibited | |||
✓ |
Equity Awards Policy Our policy ensures consistency in application of the Companys equity award process |
Ó |
No Liberal Share Counting We prohibit liberal share counting under the Companys equity plans | |||
✓ |
Minimum Vesting Our current long-term equity plan includes a minimum vesting period of one year for all awards |
Ó |
No Excess Dilution We limit dilution by carefully monitoring burn rate and overhang | |||
✓ |
Fungible Share Ratio Our long-term equity plan incorporates a fungible share ratio feature |
Ó |
No Minimum Payouts Our long-term equity plan does not include a minimum payout | |||
✓ |
Independent Consultant We utilize an independent compensation consultant |
Ó |
No Block Equity Grants We do not make block equity grants | |||
✓ |
Appropriate Peer Group We benchmark our compensation against appropriate industry peers with whom we compete for talent |
|||||
✓ |
Share Repurchase Program We use share repurchase programs (when appropriate) to capitalize on prudent stock repurchase opportunities that help offset the potential dilution from shares granted pursuant to incentive awards |
2021 PROXY STATEMENT | 51 |
2020 AND 2021 ACHIEVEMENTS
✓ | Decisive Actions in Response to COVID-19
In 2020, we were faced with the novel coronavirus (known as COVID-19) pandemic, which had a devastating impact on the gaming industry. To help combat the spread of COVID-19, we were required to temporarily suspend operations at all of our properties for single or multiple time periods during the year. Once re-opened, our properties operated with reduced gaming and hotel capacity and limited food and beverage offerings in order to accommodate social distancing and health and safety protocols.
In light of COVID-19, we took the following actions to strengthen our balance sheet and improve our liquidity:
We entered into an agreement with our principal landlord, Gaming and Leisure Properties, Inc. (GLPI) and closed on the sale of the Tropicana Las Vegas real estate assets and a new ground lease for our planned Category 4 casino in Morgantown, Pennsylvania, in exchange for $337.5 million in rent credits and the ability to participate in additional upside from the eventual sale of Tropicana Las Vegas by GLPI;
In April 2020, we entered into an amendment to our credit agreement to obtain relief from our financial covenants for a period up to one year.
In May 2020, we completed a public offering of $330.5 million aggregate principal amount of 2.75% unsecured convertible notes due May 15, 2026;
In May 2020, we completed a $345.0 million public offering of 19,166,667 shares of common stock; and
In September 2020, we completed a $982.1 million public offering of 16,100,000 shares of common stock.
As a result of these actions, as of December 31, 2020, we had $1,853.8 million in cash on our balance sheet and no outstanding balance under our $700 million revolving credit facility. |
✓ | Evolution as an Omni-Channel Provider of Retail and Online Gaming and Sports Betting Entertainment
In 2020 and early 2021, we undertook meaningful actions in our evolution from an owner and manager of gaming and racing properties into an omni-channel provider of retail and online gaming and sports betting entertainment.
Investment in Barstool Sports - In February 2020, we acquired 36% of the common stock of Barstool Sports, a leading digital sports, entertainment and media platform. In connection with the Barstool Sports investment, we became Barstool Sports exclusive gaming partner for up to 40 years and have the right to utilize the Barstool Sports brand for all of our online and retail sports betting and iCasino apps.
Interactive In 2020, we launched our Barstool Sportsbook app in Pennsylvania with over 72,000 registered customers. On January 22, 2021, we launched the Barstool Sportsbook app in Michigan with over 48,000 registered customers. Further, on March 10, 2021, we successfully launched the Barstool Sportsbook app in Illinois. We expect to have our Barstool Sportsbook app live in at least 10 states by the end of 2021.
We currently operate online casino games in Pennsylvania through our HollywoodCasino.com gaming platform. We also launched our online casino games in Michigan in 2021. We currently operate a number of our retail sports books in Colorado, Illinois, Indiana, Iowa, Michigan, Mississippi, Pennsylvania and West Virginia. In 2020, we opened retail sportsbooks at our properties in Colorado and Illinois. In addition, we continued to enter into long-term market access agreements with leading sports betting operators (BetMGM, Unibet and Rush Street), which we expect to fund our own online sports betting and iCasino business.
Further, we have entered into long-term market access agreements with third parties (Rush Street and Resorts) to gain access to new states, including sports betting in New York (Rush Street) and iCasino in New Jersey (Resorts). | |||
✓ |
Team Member Assistance
In response to COVID-19, we created a COVID-19 Emergency Relief Fund for our team members and raised over $4 million in contributions from our Board of Directors, senior management team and from our Penn National Gaming Foundation. We also extended health benefits to all furloughed team members and provided $13 million in one-time holiday cash bonuses to our non-executive team members companywide to help with the financial impact to their families. Further, in response to Hurricane Laura, we contributed more than $6.5 million to LAuberge Lake Charles and the community, including payment of full wages and benefits for our team members. |
✓ |
Diversity
In 2020, we formed a new Diversity Committee and established a $1 million annual diversity scholarship program to support the children of our team members. We also implemented a series of new inclusion-related initiatives to educate our team members across the organization, while continuing to foster a respectful and inclusive workplace. We continue to strive to find the best and most talented executives and Board members. Currently, we are well represented from a gender diversity perspective; 50% of our executive officers and 38% of our Board of Directors are women. | |||
✓ |
Growth by Acquisitions and Development
We entered into an agreement with GLPI to acquire the operations of Hollywood Casino Perryville for $31.1 million, which is expected to close in the second or third quarter of 2021, subject to regulatory approval. Upon completion of this transaction, we will be in our 20th state. We expect to open our Category 4 Casinos in Morgantown and York, Pennsylvania in late 2021, subject to regulatory approval. |
52 | PENN NATIONAL GAMING, INC. |
Comparison of Total Target Compensation and Stock Performance
Among Penn National Gaming, Inc. and Peer Group
The Companys total target compensation in 2020 for its top three executive officers (i.e., Chief Executive Officer, Chief Financial Officer and General Counsel) was approximately 54% below the market median for the top three executives (i.e., Chief Executive Officer, Chief Financial Officer and General Counsel) at peer companies (based on a comparison of the Companys top three executives 2020 total target pay to the 2019 peer company total target pay levels, as disclosed in the peer companies 2020 proxy statements).* During 2020, the Companys stock performance increased 237.9% compared to -7.6% of its peer group.
* | Excludes CEO pay for Red Rock Resorts, Inc. due to lack of participation in a long-term incentive program. In 2020, Mr. Snowden did not receive an equity award due to his promotion as Chief Executive Officer in 2019, in which he received a grant of options worth $6.3 million in 2019. |
2021 PROXY STATEMENT | 53 |
54 | PENN NATIONAL GAMING, INC. |
2021 PROXY STATEMENT | 55 |
56 | PENN NATIONAL GAMING, INC. |
2021 PROXY STATEMENT | 57 |
58 | PENN NATIONAL GAMING, INC. |
2021 PROXY STATEMENT | 59 |
Total Target Compensation
Each year, we review the base salary of each executive officer against the base salaries of similarly positioned executives in the Companys peer group. In doing so, we compare the base salary information contained in our peer groups most recently available proxy statements (generally 2018 pay levels as reported in 2019 proxy statements) with 2020 pay targets for the Companys executive officers. For instance, in 2020, our review indicated that the target total compensation of Mr. Snowden, our Chief Executive Officer, was in the bottom 10th percentile relative to similarly positioned executives (Chief Executive Officers) in the Companys peer group (based on information in the peer group companies 2020 proxy statements). In addition, the total compensation of each of the Companys named executive officers was also below the median of similarly positioned executives in the Companys peer group.
Base Salary
For 2020, in connection with Mr. Snowdens promotion to Chief Executive Officer of the Company, we increased Mr. Snowdens base salary from $1.1 million to $1.4 million effective as of January 1, 2020. In addition, to better align with the benchmark median pay levels among our peers, Mr. Sottosanti received a 3% raise which increased his salary to $695,250 effective as of January 1, 2020. To help mitigate the financial impact of the ongoing COVID-19 pandemic, the Committee and the executive officers agreed to a reduction in base salaries, effective on April 1, 2020 until October 1, 2020. Specifically, Mr. Snowdens base salary was reduced by $350,000, Mr. Sottosantis base salary was reduced by $139,050 and Mr. Williams base salary was reduced by $130,000.
The following table indicates the base compensation of each named executive officer for 2020:
Executive
|
2020 Base Salary
|
2020 Actual Salary Paid
| ||
Jay A. Snowden President and Chief Executive Officer |
$1,400,000 |
$1,215,577 | ||
Carl Sottosanti Former EVP, General Counsel and Secretary |
$695,250 |
$628,683 | ||
David Williams Former EVP, Chief Financial Officer |
$650,000 |
$522,000 | ||
William J. Fair Former EVP, Chief Financial Officer |
$721,000 |
$199,662 |
Effective as of January 1, 2021, the Compensation Committee increased Mr. Snowdens base salary to $1,800,000, which is below the base salary median pay level of $2,000,000 among our peers.
Annual Short-Term Incentive Plan
In 2020, the Company achieved Adjusted EBITDA, after Lease Payments for purposes of the annual short-term incentive plan of $203.7 million, which is 26.3% of the target of $774.4 million. The Company did not achieve target due to the Companys gaming facilities being closed because of the COVID-19 pandemic. Specifically, we began the temporary suspension of the operations of all of our 41 properties starting between March 13, 2020 and March 19, 2020, pursuant to various orders from state gaming regulatory bodies and governmental authorities to combat the rapid spread of COVID-19. We began reopening our properties on May 18, 2020 with approximately 10% to 50% reduced gaming and hotel capacity and limited food and beverage offerings in order to accommodate comprehensive social distancing and health and safety protocols required by state regulators and local and state public health officials. By September 30, 2020, all of our properties had reopened (except for Zia Park in New Mexico). In the fourth quarter, we were again required to temporarily suspend operations in Pennsylvania, Michigan and Illinois and were subject to increased operational restrictions in Ohio and Massachusetts. In Michigan, our Greektown facility was temporarily closed on November 17, 2020 and reopened on December 23, 2020. In addition, our Pennsylvania properties closed on December 12, 2020 and reopened on January 4, 2021. Further, in Illinois, our properties temporarily closed on November 20, 2020 and began reopening with limited hours of operations beginning on January 16, 2021. As a result of these property closures and our inability to achieve target under our annual short term incentive plan, the Committee determined that it was not appropriate to pay a bonus for 2020.
60 | PENN NATIONAL GAMING, INC. |
The following table indicates the target bonus and actual amount paid to each named executive officer (other than William J. Fair) for the annual short-term incentive for 2020:
Executive
|
Target Bonus
|
Actual Bonus
| ||
Jay A. Snowden President and Chief Executive Officer
|
$2,100,000
|
$0
| ||
Carl Sottosanti Former EVP, General Counsel and Secretary
|
$695,250
|
$0
| ||
David Williams Former EVP and Chief Financial Officer
|
$650,000
|
$0
|
Equity Compensation
|
||
In 2020, we made annual equity compensation grants to our executive officers (other than Messrs. Snowden and Fair), which were based on a percentage of each such executives base salary. In connection with his promotion to Chief Executive Officer as of January 1, 2020, the Committee granted Mr. Snowden options in August 2019 (which vest in four annual installments from the date of grant) with a grant date fair value of $6.3 million in lieu of any equity grant in 2020. In determining the amount of such grants, the Committee considered the extent to which the grant would reward such officers for increasing shareholder value and such qualitative factors as specific position duties and responsibilities, tenure with the Company, individual contribution and position value to the Company. The Committee also considered the size of the grant in relation to the diluted shares outstanding, the Companys recent and long-term performance and the Companys total long-term incentive and total target pay positioning relative to the Companys peers. |
In 2020, the Committee approved a structure of long-term equity incentive compensation to consist of three components: (i) 33% of value at award date was in the form of options which vest at the rate of 25% per year, subject to the executives continued employment; (ii) 33% of the value at award date was in the form of performance-based restricted stock, with each grant subject to a three-year vesting period and only to the extent certain performance hurdles (described below) have been achieved; and (iii) 33% of value at award date was in the form of performance-based phantom stock units, which are payable, if at all, in cash, with each grant subject to a three-year vesting period and only to the extent certain performance hurdles (described below) have been achieved. | |
2021 PROXY STATEMENT | 61 |
In 2020, as described above, with respect to the third performance period of the 2018 performance awards, the second performance period for the 2019 performance awards and first performance period of the 2020 performance awards under the Performance Share Program, the Committee established an Adjusted EBITDA, after Lease Payments goal with a target of $774.7 million. In addition, with respect to the second performance period of the 2019 performance awards and first performance period of the 2020 performance awards, the Committee established a synergies goal with a target of $13 million related to the Pinnacle transaction. In connection with the Pinnacle transaction, the Committee established a $100 million synergy target over the two-year period following the closing of the Pinnacle transaction. The Company |
achieved $87 million in synergies in 2019. In 2020, the Company achieved $49.1 million in synergies.
The Committee believes the long-term incentive allocation strikes an appropriate balance between incentivizing long-term objectives (through performance-based awards in the form of restricted stock and phantom stock units) and long-term shareholder performance (through options and the performance-based restricted stock and performance-based phantom stock units issued upon achievement of performance share objectives).
The following table indicates the option grants and target performance awards made to each of the named executive officers in 2020 as long-term incentive compensation: |
Executive
|
Option
|
Value of Option
|
Target
|
Value
of
|
Target Performance
|
Value of Target Performance Awards
| ||||||
Carl Sottosanti
Former EVP, General Counsel and Secretary |
65,312 | $556,200 | 15,476 | $556,200 | 15,476 | $556,200 | ||||||
David Williams
Former EVP and Chief Financial Officer |
44,905 | $520,000 | 14,469 | $520,000 | 14,469 | $520,000 |
In 2020, the Committee did not grant any options or performance awards to Messrs. Snowden or Fair. As discussed above, in connection with his promotion to Chief Executive Officer as of January 1, 2020, Mr. Snowden received a grant of stock options in 2019, which is in lieu of any equity grant in 2020. In 2021, the Company resumed regular, annual long-term incentive awards for Mr. Snowden, at the same time as awards are made to the other named executive officers.
In 2020, given the closure of all of the Companys casinos during certain months, the Company was not able to achieve target for Adjusted EBITDA, after lease 2020 performance plans. The Committee determined not to use actual Adjusted EBITDA, after Lease Payments, as a performance metric for the 2018, 2019 and 2020 performance plans for the following reasons: (1) no bonuses are being paid to any of the officers of the Company as well as other members of senior management; (2) the stock price of the Company has shown a significant increase since the beginning of 2020; (3) the named executive officers of the Company should be rewarded for their work done in payments under the Companys 2018, 2019 and 2020 performance awards; and (4) the performance shares are important for retention purposes, which performance shares would be paid out in 2022 and 2023. Following consultation with the Companys compensation consultant, the Committee determined that, with |
respect to the 2018 performance plan, it was in the best interests of the Company to use an average of the performance achievement for the first and second performance periods for 2018 and 2019, which were 116.057% and 116.82%, respectively. Based on using an average, the Committee determined that for the third performance period the percentage of target achieved would be 116.44%.
In addition, with respect to the 2019 and 2020 performance plans, the Committee determined that the performance should be determined based on synergies with the respect to the Pinnacle acquisition, which the Company achieved $49.1 million. As a result, the Committee determined that the percentage of target achieved was 150% for 2020 under the 2019 and 2020 in light of COVID-19. |
62 | PENN NATIONAL GAMING, INC. |
As a result, the following shares of restricted stock or phantom stock units were earned and credited to our named executive officers under our 2018, 2019 and 2020 performance plans. The 2019 and 2020 performance awards remain subject to forfeiture for three years following the grant date during the full three year service period, subject to lapse of such forfeiture restrictions earlier in the event of involuntary termination of service, retirement, death or disability, or a change in control of the Company. The 2018 performance awards have completed their full three-year performance cycle and therefore have vested in full.
Executive*
|
Phantom Earned from 2020
|
Restricted Earned from 2020
|
Phantom Earned from 2019
|
Restricted Awards
|
Restricted
| |||||
Jay A. Snowden President and Chief Executive Officer |
| | 21,699 | 21,699 | 13,537 | |||||
Carl Sottosanti Former EVP, General Counsel and Secretary |
5,159 | 5,159 | 7,475 | 7,475 | 5,340 | |||||
William J. Fair Former EVP and Chief Financial Officer |
| | 7,984 | 7,984 | 6,417 |
* For 2020, Mr. Snowden did not receive any performance awards under the 2020 performance plan. Pursuant to his Retirement Agreement, Mr. Sottosanti received target under all of the performance awards under the 2018, 2019 and 2020 performance plans. Pursuant to his Executive Agreement, Mr. Fair received target under the 2018 and 2019 performance plans. Pursuant to his Separation Agreement, Mr. Williams did not receive any performance awards under the 2020 performance plan.
2021 PROXY STATEMENT | 63 |
64 | PENN NATIONAL GAMING, INC. |
2021 PROXY STATEMENT | 65 |
accordance with the terms of the applicable equity compensation plans or performance share programs, which require, among other things, that the exercise price of all stock options be established by reference to the closing price on the trading day immediately prior to the date of grant.
Reconciliations and Non-GAAP Financial Measures
Adjusted EBITDA, Adjusted EBITDAR and Adjusted EBITDA, after Lease Payments are non-GAAP financial measures. For a discussion of Adjusted EBITDA and Adjusted EBITDAR and a reconciliation of Adjusted EBITDA, and Adjusted EBITDAR to net income, see the Managements Discussion and Analysis of Financial Condition and Results of Operations section of the Companys Annual Report on Form 10-K for the fiscal year ended December 31, 2020, filed with the SEC on February 26, 2021.
For a discussion of Adjusted EBITDA, after Lease Payments and a reconciliation to net income (loss), see Appendix C to this Proxy Statement.
The Committee has reviewed and discussed the foregoing CD&A with the management of the Company. In addition, as discussed on page 15 of this Proxy Statement, the Committee retained the services of Exequity LLP as its independent compensation consultant in order to receive independent expert advice on executive compensation matters and guidance with respect to compensation best practices, among other things. The compensation actions taken in 2020 and described in this CD&A were taken in consultation with, and were supported by, Exequity. Based on the review and discussions described above, the Committee recommended to the Board of Directors that the CD&A be included in this Proxy Statement and incorporated by reference in the Companys Annual Report on Form 10-K for the fiscal year ended December 31, 2020.
Compensation Committee of the Board of Directors | ||
Barbara Shattuck Kohn, Chair Marla Kaplowitz John M. Jacquemin Ronald J. Naples |
66 | PENN NATIONAL GAMING, INC. |
The following table sets forth information concerning the compensation earned during the fiscal years ended December 31, 2020, 2019 and 2018 by the Companys Chief Executive Officer, Chief Financial Officer and the Companys other most highly compensated individuals serving as executive officers during 2020 (collectively, the Named Executive Officers):
Name and
Principal Position(1) |
Year | Salary ($) | Stock Awards ($)(2) |
Option Awards ($)(3) |
Non-Equity ($)(4) |
All
Other ($)(5) |
Total ($) | ||||||||||||||||||||||||||||
Jay A. Snowden
President and Chief
Executive Officer |
|
2020 |
|
|
1,215,677 |
|
|
2,431,391 |
|
|
0 |
|
|
0 |
|
|
251,587 |
|
|
3,898,655 |
| ||||||||||||||
|
2019 |
|
|
1,100,000 |
|
|
1,224,213 |
|
|
7,229,814 |
|
|
1,285,167 |
|
|
138,774 |
|
|
10,977,968 |
| |||||||||||||||
|
2018 |
|
|
1,100,000 |
|
|
958,081 |
|
|
1,044,998 |
|
|
1,276,629 |
|
|
122,550 |
|
|
4,502,258 |
| |||||||||||||||
Carl Sottosanti
Former Executive Vice
President, General
Counsel and Secretary |
|
2020 |
|
|
628,683 |
|
|
1,686,715 |
|
|
541,395 |
|
|
0 |
|
|
473,314 |
|
3,330,107 | ||||||||||||||||
|
2019 |
|
|
675,000 |
|
|
585,242 |
|
|
539,756 |
|
|
788,625 |
|
|
87,186 |
|
|
2,675,809 |
| |||||||||||||||
|
2018 |
|
|
600,000 |
|
|
397,130 |
|
|
480,000 |
|
|
696,343 |
|
|
61,133 |
|
|
2,234,606 |
| |||||||||||||||
David Williams
Former Executive Vice
President and Chief
Financial Officer |
2020 | 522,000 | 520,016 | 513,975 | 0 | 11,850 | 1,567,841 | ||||||||||||||||||||||||||||
William J. Fair
Former Executive Vice
President and Chief Financial
Officer |
|
2020 |
|
|
199,662 |
|
|
1,835,677 |
|
|
0 |
|
|
0 |
|
|
2,764,485 |
|
|
4,799,824 |
| ||||||||||||||
|
2019 |
|
|
721,000 |
|
|
706,581 |
|
|
576,541 |
|
|
842,368 |
|
|
96,284 |
|
|
2,942,774 |
| |||||||||||||||
|
2018 |
|
|
721,000 |
|
|
524,600 |
|
|
576,804 |
|
|
836,773 |
|
|
79,156 |
|
|
2,738,333 |
|
(1) | Mr. Sottosanti retired as Executive Vice President, General Counsel and Secretary on December 31, 2020. Mr. Williams resigned as Executive Vice President and Chief Financial Officer on December 31, 2020. Mr. Fair resigned as Executive Vice President and Chief Financial Officer on March 3, 2020. |
(2) | The value in this column reflects the aggregate grant date fair value calculated in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 718 (ASC 718) for stock awards. Assumptions used in the calculation of these amounts are described in footnote 2 to the Companys audited financial statements included in its Annual Report on Form 10-K for the fiscal year ended December 31, 2020. The grant date fair value assuming the maximum level of performance achieved under performance awards are as follows: (a) $2,886,740 for Mr. Snowden; (b) $2,168,544 for Mr. Sottosanti; (c) $780,024 for Mr. Williams and (d) $2,336,405 for Mr. Fair. |
(3) | The value in this column reflects the full grant date fair value calculated in accordance with ASC 718 for option awards. Assumptions used in the calculation of these amounts are described in Note 2 to the Companys audited financial statements included in its Annual Report on Form 10-K for the fiscal year ended December 31, 2020. |
(4) | In 2020, the Company did not achieve the pre-established performance goals to receive a cash payment pursuant to the Companys annual short-term incentive plan. As a result, there were no cash payments made to any of the named executive officers. |
(5) | For Mr. Snowden, All Other Compensation in 2020 consisted of (1) $97,980 in Company matching contributions under the Companys Deferred Compensation Plan (DCP); (2) $8,551 in Company paid insurance premiums; (3) $7,094 for taxes associated with the Company paid insurance premiums; (4) $15,293 in tax and financial planning; (5) $5,700 in matching 401(k) contributions; and (6) $116,969 representing aggregate incremental cost for use of the Companys aircraft which is based on variable costs of operating the aircraft including fuel costs, landing costs and repairs and maintenance. For Mr. Sottosanti, All Other Compensation in 2020 consisted of (1) $56,640 in Company matching contributions under the DCP; (2) $14,000 in tax and financial planning; (3) $2,674 in matching 401(k) contributions; and (4) $400,000 transition payment in connection with his retirement as Executive Vice President, General Counsel and Secretary. For Mr. Williams, All Other Compensation in 2020 consisted of (1) $10,925 in Company matching contributions under the DCP; and (2) $925 in matching 401(k) contributions. For Mr. Fair, All Other Compensation in 2020 consisted of (1) $50,438 in Company matching contributions under the DCP; (2) $5,700 in matching 401(k) contributions; (3) $6,991 in tax and financial planning; and (4) $2,701,356 in severance in connection with his resignation as the Companys Executive Vice President and Chief Financial Officer. |
2021 PROXY STATEMENT | 67 |
2020 Grants of Plan Based Awards
The following table sets forth certain information regarding grants of plan based awards relating to 2020 for the Named Executive Officers.
Estimated Future Payouts
|
Estimated Future Payouts Under Equity Incentive
|
|||||||||||||||||||
Name |
Grant Date |
Threshold ($) |
Target ($) |
Maximum ($) |
Threshold (#) |
Target (#) |
Maximum (#) |
All Other Option Awards (#)(2) |
Exercise Price of Option Awards ($)/share) |
Grant Date Fair Value of Stock and Option Awards (3) | ||||||||||
Jay A. Snowden |
|
1,050,000 |
2,100,000 |
2,800,000 |
|
|
|
|
|
| ||||||||||
2/21/2020(4) |
|
|
|
4,931 |
9,861 |
14,792 |
|
|
439,718 | |||||||||||
2/21/2020(5) |
|
|
|
5,813 |
11,626 |
17,439 |
|
|
518,463 | |||||||||||
2/21/2020(6) |
|
|
|
7,233 |
14,466 |
21,699 |
|
|
736,605 | |||||||||||
2/21/2020(7) |
|
|
|
7,233 |
14,466 |
21,699 |
|
|
736,605 | |||||||||||
Carl Sottosanti |
|
347,600 |
695,200 |
1,042,800 |
|
|
|
|
|
| ||||||||||
1/3/2020 |
|
|
|
|
|
|
65,312 |
26.14 |
541,395 | |||||||||||
2/18/2020(4) |
|
|
|
1,918 |
3,835 |
5,753 |
|
|
165,178 | |||||||||||
2/18/2020(5) |
|
|
|
2,670 |
5,340 |
8,010 |
|
|
229,995 | |||||||||||
2/18/2020(6) |
|
|
|
3,738 |
7,475 |
11,213 |
|
|
367,668 | |||||||||||
2/18/2020(7) |
|
|
|
3,738 |
7,475 |
11,213 |
|
|
367,668 | |||||||||||
2/25/2020(8) |
|
|
|
7,738 |
15,476 |
23,214 |
|
|
556,206 | |||||||||||
David Williams |
|
325,000 |
650,000 |
975,000 |
|
|
|
|
|
| ||||||||||
2/11/2020 |
|
|
|
|
|
|
44,905 |
36.31 |
513,975 | |||||||||||
2/25/2020(8) |
|
|
|
7,235 |
14,469 |
21,704 |
520,016 | |||||||||||||
William J. Fair |
||||||||||||||||||||
2/18/2020(4) |
3,351 |
6,702 |
10,053 |
288,655 | ||||||||||||||||
2/18/2020(5) |
3,209 |
6,417 |
9,626 |
276,378 | ||||||||||||||||
2/18/2020(6) |
3,992 |
7,984 |
11,976 |
392,739 | ||||||||||||||||
2/18/2020(7) |
3,992 |
7,984 |
11,976 |
392,739 | ||||||||||||||||
4/01/2020(9) |
3,209 |
6,417 |
9,626 |
81,174 | ||||||||||||||||
4/01/2020(9) |
3,992 |
7,984 |
11,976 |
100,998 | ||||||||||||||||
4/01/2020(9) |
3,992 |
7,984 |
11,976 |
100,998 | ||||||||||||||||
4/01/2020(9) |
3,992 |
7,984 |
11,976 |
100,998 | ||||||||||||||||
4/01/2020(9) |
3,992 |
7,984 |
11,976 |
100,998 |
(1) | As discussed in the CD&A section above, there were no cash bonuses awarded for 2020. Mr. Fair was not eligible to receive a bonus for 2020. |
(2) | Option awards represent stock options granted to the executives as part of their annual equity incentive compensation. The option awards vest over four years, 25% on the first anniversary of the date of grant and 25% on each succeeding anniversary. |
(3) | Represents the full grant date fair value of awards under ASC 718. Generally, the full grant date fair value is the amount the Company expenses in its financial statements over the awards vesting period. Assumptions used in the calculation of the amounts for stock option awards and performance awards are included in Note 2 to the Companys audited financial statements in the Companys Annual Report on Form 10-K for the fiscal year ended December 31, 2020. |
(4) | Equity incentive awards represent performance-based restricted stock awards approved on February 17, 2017 in connection with the Companys 2017 performance share program. The aggregate target number of restricted stock having a three-year award period consisting of three one-year performance periods and a three-year service period were: (i) 29,585 for Mr. Snowden; (ii) 20,106 for Mr. Fair; and (iii) 11,505 for Mr. Sottosanti. As of December 31, 2020, performance goals for three performance periods had been established for the 2017 awards. The grant date in the table above reflects the third tranche of these three-year performance awards. |
(5) | Equity incentive awards represent performance-based restricted stock awards approved on February 6, 2018 in connection with the Companys 2018 performance share program. The aggregate target number of restricted stock having a three-year award period consisting of three one-year performance periods and a three-year service period were: (i) 34,880 for Mr. Snowden; (ii) 19,252 for Mr. Fair; and (iii) 16,021 for Mr. Sottosanti. As of December 31, 2020, performance goals for three performance periods had been established for the 2018 awards. The grant date in the table above reflects the second tranche of these three-year performance awards. |
68 | PENN NATIONAL GAMING, INC. |
(6) | Equity incentive awards represent performance-based restricted stock awards approved on February 14, 2019 in connection with the Companys 2019 performance share program. The aggregate target number of restricted stock having a three-year award period consisting of three one-year performance periods and a three-year service period were: (i) 43,397 for Mr. Snowden; (ii) 23,953 for Mr. Fair; and (iii) 22,425 for Mr. Sottosanti. As of December 31, 2020, performance goals for only the second performance period had been established for the 2019 award. The grant date in the table above reflects the first tranche of these three-year performance awards. |
(7) | Equity incentive awards represent performance-based phantom stock units that vest in cash approved on February 14, 2019 in connection with the Companys 2019 performance share program. The aggregate target number of phantom stock units having a three-year award period consisting of three one-year performance periods and a three-year service period were: (i) 43,397 for Mr. Snowden; (ii) 23,953 for Mr. Fair; and (iii) 22,425 for Mr. Sottosanti. As of December 31, 2020, performance goals for only the second performance period had been established for the 2019 award. The grant date in the table above reflects the first tranche of these three-year performance awards. |
(8) | Equity incentive awards represent performance-based restricted stock awards approved on February 18, 2020 in connection with the Companys 2020 performance share program. The aggregate target number of restricted stock having a three-year award period consisting of three one-year performance periods and a three-year service period were: (i) 15,476 for Mr. Sottosanti and (ii) 14,469 for Mr. Williams. As of December 31, 2020, performance goals for only the first performance period had been established for the 2020 award. The grant date in the table above reflects target for these three-year performance awards. |
(9) | Pursuant to Mr. Fairs executive agreement with the Company, he received target under the 2018 performance plan for the year 2020. In addition, Mr. Fair received target under the 2019 performance plan for performance-based restricted stock and performance-based phantom stock units for the second and third tranches. |
Outstanding Equity Awards at Fiscal Year End
The following table sets forth information concerning equity awards outstanding as of December 31, 2020 for the Named Executive Officers:
Option Awards | Stock Awards | |||||||||||||||||
Name |
Number of Securities Underlying |
Option Exercise Price ($) |
Option Expiration Date |
Number of Shares or Units Held that Have Not Vested (#) (g) |
Market Value of Shares or Units Held that Have Not Vested ($) (j) |
Equity incentive plan awards: number of unearned shares, units or other rights that have not vested (#) |
Equity incentive plan awards: market or payout value of unearned shares, units or other rights that have not vested ($) (k) | |||||||||||
Exercisable (#) |
Unexercisable (#) | |||||||||||||||||
Jay A. Snowden |
234,827 | | 13.19 | 1/6/2022 | 40,614(h) | $3,507,831 | - | - | ||||||||||
237,437 | | 12.87 | 2/9/2023 | 40,997(i) | $3,540,911 | 21,699(k) | $1,874,143 | |||||||||||
164,417 | 54,805(a) | 14.10 | 1/4/2024 | 40,997(i) | $3,540,911 | 21,699(k) | $1,874,143 | |||||||||||
52,885 | 52,884(b) | 30.74 | 1/3/2025 | |||||||||||||||
39,051 | 117,152(c) | 19.45 | 1/3/2029 | |||||||||||||||
258,177 | 774,529(d) | 18.81 | 8/6/2029 | |||||||||||||||
Carl Sottosanti |
| 21,313(a) | 14.10 | 1/4/2024 | 17,777(l) | $1,535,399 | | | ||||||||||
| 24,291(b) | 30.74 | 1/3/2025 | 17,447(l) | $1,506,897 | 1,246(m) | $107,617 | |||||||||||
| 60,537(c) | 19.45 | 1/3/2029 | 17,447(l) | $1,506,897 | 1,246(m) | $107,617 | |||||||||||
| 65,312(e) | 26.14 | 1/3/2030 | 5,159(l) | $445,583 | 860(m) | $74,278 | |||||||||||
5,159(l) | $445,583 | 860(m) | $74,278 | |||||||||||||||
David Williams |
| 44,905(f) | 36.31 | 2/19/2031 | 21,704(f) | $1,874,531 | ||||||||||||
William J. Fair |
29,191 | | 30.74 | 3/31/2022 | | | | | ||||||||||
21,155 | | 19.45 | 3/31/2022 | | | | |
(a) | The vesting date is January 4, 2021. |
(b) | The vesting dates are January 3, 2021 and January 3, 2022. |
(c) | The vesting dates are January 3, 2021, January 3, 2022 and January 3, 2023. |
(d) | The vesting dates are August 6, 2021, August 6, 2022 and August 6, 2023. |
(e) | The vested dates are January 3, 2021, January 3, 2022, January 3, 2023, and January 3, 2024. |
(f) | The vesting date are February 11, 2021, February 11, 2022, February 11, 2023, and February 11, 2024. Pursuant to the separation agreement, Mr. Williams is entitled to the vesting of his options that vest prior to February 19, 2021 and no other equity awards shall vest, including the 21,704 performance awards under the 2020 performance plan. |
(g) | The stock awards consist of performance awards, which were made under the performance share programs adopted under the 2008 Long Term Incentive Compensation Plan and the 2018 Long Term Incentive Compensation Plan, as applicable. |
(h) | The vesting date is March 5, 2021. |
2021 PROXY STATEMENT | 69 |
(i) | The vesting date shall be in the first quarter of 2022 following the certification of performance by the Compensation Committee or the Board of Directors, as applicable. |
(j) | Calculated based on the closing price of $86.37 for the Companys common stock on December 31, 2020, which was the last trading day of 2020. |
(k) | These amounts represent the maximum number of performance-based restricted stock and phantom stock units for the performance periods ending December 31, 2021 and December 31, 2022. The final number of shares or units earned, if any, will be based on the performance achieved for such periods. |
(l) | Pursuant to the separation agreement, Mr. Sottosanti is entitled to vesting on March 1, 2021 of the target number of performance shares of Penn Common Stock under his 2018 performance plan and target number of performance shares and phantom stock units under the 2019 performance plan and the 2020 performance plan. |
(m) | Pursuant to the retirement agreement, Mr. Sottosanti is entitled to pro rata vesting on March 1, 2021 of the target number of performance shares and phantom stock units under the 2019 performance plan and 2020 performance plan. |
2020 Option Exercises and Stock Vested
The following table sets forth information concerning options exercise and restricted stock awards that vested during fiscal 2020 for the named executive officers. Mr. Williams did not exercise any options or have stock awards vest during the year ended December 31, 2020.
Option Awards
|
Stock Awards
| |||||||
Name
|
Number
of
|
Value Realized on
|
Number of
|
Value Realized
| ||||
Jay A. Snowden |
219,697 | 12,716,584 | 35,432 | 1,352,439 | ||||
Carl Sottosanti |
339,829 | 10,893,473 | 13,779 | 508,032 | ||||
William J. Fair |
409,987 | 13,495,886 | 98,681 | 1,757,652 |
EQUITY COMPENSATION PLAN INFORMATION
The following table summarizes certain information with respect to the Companys compensation plans and individual compensation arrangements under which the Companys equity securities have been authorized for issuance as of the fiscal year ended December 31, 2020:
(a) |
(b) |
(c) | ||||
Plan Category | Number of securities to be issued upon exercise of outstanding options, warrants and rights |
Weighted-average exercise price of outstanding options, warrants and rights ($) |
Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a)) | |||
Equity compensation plans approved by shareholders | 4,119,149(1) | 20.60 | 7,612,054(2) |
(1) | Includes 519,960 shares issuable in connection with performance-based restricted stock awards granted under performance share plans adopted under the 2008 and 2018 Long Term Incentive Compensation Plans. The actual award payouts can range from zero to 150 percent of the original grant. This number excludes a maximum of 582,762 of performance-based restricted stock awards that have been authorized but not yet granted as of December 31, 2020. |
(2) | The 2018 Long Term Incentive Compensation Plan provides that, while awards of stock options and stock appreciation rights are counted as one share of common stock granted under such plan, awards of restricted stock, or shares issued pursuant to any other full value awards, are counted as issuing 2.30 shares of common stock per share awarded for purposes of determining the number of shares available for issuance under such plan. Awards that are settled in cash rather than shares of stock are not counted against the limit in the 2018 Long Term Incentive Compensation Plan. |
70 | PENN NATIONAL GAMING, INC. |
2020 Nonqualified Deferred Compensation
The following table sets forth information concerning nonqualified deferred compensation of the Named Executive Officers:
Name
|
Executive
|
Company
|
Aggregate
|
Aggregate
|
Aggregate
| |||||
Jay A. Snowden |
250,074 | 97,980 | 357,698 | (2,357) | 2,994,417 | |||||
Carl Sottosanti |
181,162 | 56,640 | 567,843 | (1,393) | 3,319,046 | |||||
David Williams |
48,450 | 10,925 | 11,691 | (29) | 71,038 | |||||
William J. Fair |
145,884 | 50,438 | 185,511 | (1,383) | 1,536,130 |
(1) | For each executive, the executives contribution is included in the executives Salary column for 2020, as reported in the Summary Compensation Table. |
(2) | For each executive, the Companys contribution is included in the executives All Other Compensation column for 2020, as reported in the Summary Compensation Table. |
(3) | Amounts reflect the change in account value during 2020. No amounts are reported in the Summary Compensation Table because the earnings were not above market or preferential. |
(4) | The amount of each executives aggregate balance at fiscal year-end that was reported as compensation in the Summary Compensation Table for previous years was as follows: $707,644 for Mr. Snowden, $432,175 for Mr. Sottosanti, $0 for Mr. Williams, and $483,474 for Mr. Fair. |
2021 PROXY STATEMENT | 71 |
Potential Payments Upon Termination or Change in Control
The following tables describe and quantify the compensation that would become payable in the event of a termination of a named executive officers employment under several different circumstances or a change in control. The amounts shown are estimates of amounts that would be paid to the named executive officers assuming that such termination or change in control was effective as of December 31, 2020, and include amounts earned through such time and are based (where applicable) on the closing price of the Companys common stock on such date, which was $86.37 per share. The actual amounts to be paid can only be determined at the time of such named executive officers separation from the Company and/or change in control. For a description of the severance and change in control provisions giving rise to the payments set forth below, see pages 73 through 76 of this Proxy Statement. In establishing the appropriate payment and benefit levels, the Company evaluates the practices and levels set by companies in its peer group.
For a description of the payments that became payable to Mr. Fair in connection with his departure as Executive Vice President and Chief Financial Officer on March 3, 2020, see Fair Executive Agreement below.
Post-Employment PaymentsJay A. Snowden
Executive Payments |
Voluntary |
Termination |
Termination for |
Termination Death ($) (9) |
Termination |
Change in |
Change in Control | |||||||
Cash Severance Benefit (2) |
| 3,763,875 | | 3,763,875 | 3,763,875 | | 7,000,000 | |||||||
Benefit Continuation (3) |
| 43,944 | | 43,944 | 43,944 | | 43,944 | |||||||
Restricted Stock (4) |
| 7,048,828 | | 7,048,828 | 7,048,828 | | 7,048,828 | |||||||
Unvested Stock Options (5) |
| | | 67,069,685 | 67,069,685 | 3,960,757 | 67,069,685 | |||||||
Unvested Phantom Stock Units |
| 3,540,997 | | 3,540,997 | 3,540,997 | | 3,540,997 | |||||||
Vested Stock Options (6) |
69,516,400 | 69,516,400 | | 69,516,400 | 69,516,400 | 69,516,400 | 69,516,400 | |||||||
Vested Deferred compensation Balance (7) |
2,994,417 | 2,994,417 | 2,994,417 | 2,994,417 | 2,994,417 | 2,994,417 | 2,994,417 | |||||||
Total |
$72,510,817 | $86,908,461 | $2,994,417 | $153,978,146 | $153,978,146 | $76,471,574 | $157,214,271 |
72 | PENN NATIONAL GAMING, INC. |
Post-Employment PaymentsCarl Sottosanti
| ||||||||||||||
Executive Payments |
Voluntary |
Termination |
Termination for |
Termination |
Termination |
Change in |
Change in Control | |||||||
Cash Severance Benefit (2) |
| 1,634,344 | | 1,634,344 | 1,634,344 | | 2,781,000 | |||||||
Benefit Continuation (3) |
| 33,282 | | 33,282 | 33,282 | | 33,282 | |||||||
Restricted Stock (4) |
| 3,487,880 | | 3,487,880 | 3,487,880 | | 3,487,880 | |||||||
Unvested Stock Options (5) |
| - | | 10,876,477 | 10,876,477 | 1,540,291 | 10,876,477 | |||||||
Unvested Phantom Stock Units |
| 1,952,480 | | 1,952,480 | 1,952,480 | | 1,952,480 | |||||||
Vested Stock Options (6) |
| | | | | | | |||||||
Vested Deferred Compensation Balance (7) |
3,319,046 | 3,319,046 | 3,319,046 | 3,319,046 | 3,319,046 | 3,319,046 | 3,319,046 | |||||||
Total |
$3,319,046 | $10,427,032 | $3,319,046 | $21,303,509 | $21,303,509 | $4,859,337 | $22,450,165 | |||||||
Post-Employment PaymentsDavid Williams
| ||||||||||||||
Executive Payments |
Voluntary |
Termination |
Termination for |
Termination |
Termination |
Change in |
Change in Control | |||||||
Cash Severance Benefit (2) |
| 1,300,000 | | 1,300,000 | 1,300,000 | | 2,600,000 | |||||||
Benefit Continuation (3) |
| 46,296 | | 46,296 | 46,296 | | 46,296 | |||||||
Restricted Stock (4) |
| 624,887 | | 624,887 | 624,887 | | 624,887 | |||||||
Unvested Stock Options (5) |
| | | 2,247,944 | 2,247,944 | | 2,247,944 | |||||||
Unvested Phantom Stock Units |
| 624,887 | | 624,887 | 624,887 | | 624,887 | |||||||
Vested Stock Options (6) |
| | | | | | | |||||||
Vested Deferred Compensation Balance (7) |
71,038 | 71,038 | 71,038 | 71,038 | 71,038 | 71,038 | 71,038 | |||||||
Total |
$71,038 | $2,667,108 | $71,038 | $4,915,052 | $4,915,052 | $71,038 | $6,215,052 |
(1) | Prior to March 29, 2017, upon the occurrence of a change in control, stock options, phantom stock units awards and stock appreciation right awards automatically accelerated, and the restrictions on restricted stock lapsed, in each case without the requirement of a termination of employment. The Company amended its 2008 Long Term Incentive Compensation Plan to eliminate this automatic vesting of equity following a change in control for awards granted after March 29, 2017. |
(2) | The basis for the cash severance benefit upon a termination is the base salary for 2020 plus the target cash bonus earned for 2020. |
(3) | Represents employer cost of medical and dental coverage. |
(4) | Restricted stock and phantom stock unit award values were computed based on the closing price of the Companys common stock on December 31, 2020 ($86.37 per share), which was the last trading day of 2020. |
(5) | Restrictions on unvested options lapse upon death, disability or a change in control. |
(6) | Amounts represent the difference between the exercise price of each named executive officers options and the closing price of the Companys common stock on December 31, 2020 ($86.37 per share). Vested stock options issued under the 2008 Plan and 2018 Plan are cancelled when an executive is terminated for cause by the Company. However, vested options granted under the Companys prior long-term incentive plan (which is effective for awards prior to 2008) are generally not cancelled upon a termination for cause. |
(7) | Company contributions to the Deferred Compensation Plan vest 20% per year during the first five years of service. However, vesting is accelerated upon death, change in control or, at the option of the committee administering the Deferred Compensation Plan, disability. |
2021 PROXY STATEMENT | 73 |
74 | PENN NATIONAL GAMING, INC. |
2021 PROXY STATEMENT | 75 |
76 | PENN NATIONAL GAMING, INC. |
Security Ownership of Principal
Shareholders, Management and Directors
The following table sets forth certain information with respect to beneficial ownership of the Companys common stock as of April 7, 2021 by each person known to the Company to own beneficially more than 5% of the Companys outstanding common stock, each director and director nominee, each named executive officer and all of the executive officers and directors of the Company as a group. Unless otherwise indicated in the footnotes to the table, the address of each such person is c/o the Company, 825 Berkshire Boulevard, Suite 200, Wyomissing, Pennsylvania 19610.
Beneficial ownership is determined in accordance with Rule 13d-3 of the Exchange Act. Shares of common stock subject to options currently exercisable or exercisable within 60 days of April 7, 2021 are deemed outstanding for purposes of computing the percentage beneficially owned by such holder, but are not deemed outstanding for purposes of computing the percentage beneficially owned by any other person. Except as otherwise indicated, the Company believes that the beneficial owners of the common stock listed below, based on information furnished by such owners, have sole investment and voting power with respect to such shares, subject to community property laws where applicable, and that there are no other affiliations among the shareholders listed in the table. The percentage for each beneficial owner is calculated based on (i) the aggregate number of shares reported to be owned by such group or individual and (ii) the aggregate number of shares of common stock outstanding as of April 7, 2021 (156,571,196 shares).
Name and Address of Beneficial Owner | Number of Shares Beneficially Owned |
Percentage of Class | ||
Peter M. Carlino (1) |
1,663,773 | 1.06% | ||
Todd George (2) |
66,668 | * | ||
David A. Handler |
164,160 | * | ||
Felicia Hendrix (3) |
2,122 | * | ||
John M. Jacquemin |
92,646 | * | ||
Marla Kaplowitz |
3,091 | * | ||
Harper Ko (4) |
3,091 | * | ||
Barbara Shattuck Kohn (5) |
47,258 | * | ||
Ronald J. Naples |
13,429 | |||
Saul V. Reibstein (2)(6) |
73,037 | * | ||
Jane Scaccetti |
41,978 | * | ||
Jay A. Snowden (2) |
1,227,151 | * | ||
Carl Sottosanti (7) |
0 | * | ||
David Williams (7) |
0 | * | ||
William J. Fair (8) |
50,746 | * | ||
All executive officers and directors as a group (11 persons) (2) |
1,734,631 | 1.10% | ||
FMR LLC (9) |
21,015,457 | 13.42% | ||
BlackRock, Inc. (10) |
19,263,581 | 12.30% | ||
The Vanguard Group, Inc. (11) |
13,868,121 | 8.86% | ||
Baron Capital Group, Inc. (12) |
11,419,022 | 7.29% |
* Less than 1%.
(1) | The number of shares shown in the table includes (i) 702,108 shares of the Companys common stock owned by an irrevocable trust (the Carlino Family Trust) for the benefit of Peter D. Carlino (who passed away in November 2013) and Peter D. Carlinos children, as to which Peter M. Carlino has sole voting power for the election of directors and certain other matters and (ii) 365,212 shares owned by a residuary trust (the Residuary Trust) for the benefit of Peter D. Carlino and Peter D. Carlinos children. Peter M. Carlino, David E. Carlino and Richard J. Carlino have shared investment power and shared voting power with respect to certain matters for both the Carlino Family Trust and for all matters for the Residuary Trust. |
2021 PROXY STATEMENT | 77 |
(2) | The number of shares in the table includes shares that may be acquired upon the exercise of outstanding options, as follows: Mr. George, 37,988; Mr. Reibstein (from his previous role as CFO of the Company), 44,543; Mr. Snowden, 1,035,552 shares; and all current executive officers and directors as a group, 1,118,083 shares. |
(3) | On March 2, 2021, Ms. Hendrix joined the Company as the Executive Vice President and Chief Financial Officer. |
(4) | On January 1, 2021, Ms. Ko joined the Company as the Executive Vice President, Chief Legal Officer and Secretary. |
(5) | The number of shares in the table includes 1,750 shares owned by Ms. Kohns spouse, as to which shares Ms. Kohn disclaims beneficial ownership. |
(6) | The number of shares in the table includes 150 shares owned by Mr. Reibsteins spouse, as to which shares Mr. Reibstein disclaims beneficial ownership. |
(7) | On December 31, 2020, Mr. Sottosanti retired as Executive Vice President, General Counsel and Secretary and became an executive advisor to the Company through March 1, 2021. On December 31, 2020, Mr. Williams resigned as the Executive Vice President and Chief Financial Officer and became an executive advisor to the Company until February 19, 2021. |
(8) | On March 3, 2020, Mr. Fair stepped down as Executive Vice President and Chief Financial Officer and became an executive advisor to the Company until March 31, 2020. The number of shares in the table includes 50,746 shares that may be acquired upon the exercise of outstanding options. |
(9) | Based on its Schedule 13G/A filed with the SEC on February 8, 2021, the number of shares in the table includes shares beneficially owned as of December 31, 2020 by FMR LLC and its affiliates, FIAM LLC, Fidelity Institutional Asset Management Trust Company, Fidelity Management & Research Company, and Strategic Advisers, Inc. FMR LLC has sole voting power over 3,422,734 shares, shared voting power over 0 shares, sole dispositive power over 21,015,457 shares and shared dispositive power over 0 shares. The address of FMR, LLC is 245 Summer Street, Boston, Massachusetts 02210. |
(10) | Based on its Schedule 13G/A filed with the SEC on February 5, 2021, the number of shares in the table includes shares beneficially owned as of December 31, 2020 by BlackRock, Inc. and its affiliates, BlackRock Life Limited, BlackRock Advisors, LLC, BlackRock (Netherlands) B.V., BlackRock Fund Advisors, BlackRock Institutional Trust Company, National Association, BlackRock Asset Management Ireland Limited, BlackRock Financial Management, Inc., BlackRock Japan Co., Ltd., BlackRock Asset Management Schweiz AG, BlackRock Investment Management, LLC, BlackRock Investment Management (UK) Limited, BlackRock Asset Management Canada Limited BlackRock (Luxembourg) S.A., BlackRock Investment Management (Australia) Limited, and BlackRock Fund Managers Ltd. BlackRock, Inc. has sole voting power over 18,981,904 shares, shared voting power over 0 shares, sole dispositive power over 19,263,581 shares and shared dispositive power over 0 shares. The address of BlackRock, Inc. is 55 East 52nd Street, New York, New York 10055. |
(11) | Based on its Schedule 13G/A filed with the SEC on February 10, 2021, the number of shares in the table includes shares beneficially owned as of December 31, 2020 by The Vanguard Group, Inc. and its affiliates, Vanguard Asset Management, Limited, Vanguard Fiduciary Trust Company, Vanguard Global Advisors, LLC, Vanguard Group (Ireland) Limited, Vanguard Investments Australia Ltd, Vanguard Investments Canada Inc., Vanguard Investments Hong Kong Limited and Vanguard Investments UK, Limited. The Vanguard Group, Inc. has sole voting power over 0 shares, shared voting power over 256,478 shares, sole dispositive power over 13,493,776 shares and shared dispositive power over 374,345 shares. The address of Vanguard Group, Inc. is 100 Vanguard Blvd., Malvern, Pennsylvania 19355. |
(12) | Based on its Schedule 13G/A filed with the SEC on February 12, 2021, the number of shares in the table includes shares beneficially owned as of December 31, 2020 by Baron Capital Group, Inc. and its affiliates, BAMCO, Inc., Baron Capital Management, Inc. and Ronald Baron. Baron Capital Group, Inc. has sole voting power over 0 shares, shared voting power over 10,811,522 shares, sole dispositive power over 0 shares and shared dispositive power over 11,419,022 shares. The address of Baron Capital Group, Inc. is 767 Fifth Avenue, 49th Floor, New York, New York 10153. |
78 | PENN NATIONAL GAMING, INC. |
Transactions with Related Persons, Director Nomination by
Shareholders and Shareholder Access
Allison Bassman, Director of People and Culture for Penn Interactive Ventures, LLC, is the daughter of Jane Scaccetti, a member of the Companys Board of Directors. Ms. Bassman joined the Company in 2020. For 2020, Ms. Bassman received a salary of $120,000 and a bonus of $6,000.
Director Nominations by Shareholders
Shareholders who have beneficially owned at least 1% of the Companys common stock for a continuous period of not less than 12 months before making such recommendation may submit director nominations to the Governance Committee for consideration. To be timely, a shareholders notice to the Secretary must be hand delivered to or mailed (certified or registered mail, return receipt requested) and received at the principal executive offices of the Company not less than 120 nor more than 150 days prior to the anniversary date of the immediately preceding annual meeting of shareholders.
To be in proper written form, a shareholders notice must contain with respect to each nominee: (i) all information relating to such person that is required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies for election of directors in a contested election, or otherwise required by Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; (ii) a description of all direct and indirect compensation, economic interests and other material monetary agreements, arrangements and understandings during the past three years between or among such shareholder and beneficial owner, if any, and their respective affiliates and associates; (iii) a description of all relationships, agreements, arrangements and understandings between the proposed nominee and the recommending shareholder and the beneficial owner, if any; (iv) a description of all relationships between the recommended nominee and any of the Companys competitors, customers, suppliers, labor unions or other related parties; and (v) a completed and signed questionnaire, representations, consent and agreement as required by the Companys bylaws.
A shareholders notice must also contain certain other information regarding the shareholder giving the notice and the beneficial owner, if any, on whose behalf the recommendation for nomination or proposal is made, including: (i) the name, address and telephone number of such shareholder and the name, address and telephone number of such beneficial owner, if any; (ii) the class or series and number of shares and any other securities of the Company which are owned of record by such shareholder and beneficially by such beneficial owner, and the time period such shares have been held; (iii) any material pending or threatened legal proceeding in which such shareholder or
2021 PROXY STATEMENT | 79 |
beneficial owner is a party or material participant involving the Company or any of its officers or directors, or any affiliate of the Company, and any direct or indirect material interest in any material contract or agreement of such shareholder or beneficial owner with the Company, any affiliate of the Company or any principal competitor of the Company; (iv) a representation that such shareholder and beneficial owner, if any, intend to be present in person at the meeting; (v) a representation that such shareholder and such beneficial owner, if any, intend to continue to hold the reported securities through the date of the Companys next annual meeting of shareholders; and (vi) a completed and signed questionnaire, representations, consent and agreement as required by the Companys bylaws.
The notice shall be accompanied by a written consent of each recommended nominee to provide (i) all information necessary to enable the Company to respond fully to any suitability inquiry conducted under the executive, administrative, judicial and/or legislative rules, regulations, laws and orders of any jurisdiction to which the Company is then subject; (ii) a multi-jurisdictional personal disclosure form in the form customarily submitted by officers and directors of the Company; (iii) such additional information concerning the recommended nominee as may reasonably be required by the Governance Committee and/or Board to determine the eligibility of such recommended nominee to serve as an independent director of the Company, that could be material to a reasonable shareholders understanding of the independence, or lack thereof, of such proposed nominee, and to evaluate whether the recommended nominee is an unsuitable person; and (iv) a background check to confirm the qualifications and character of the recommended nominee, to evaluate whether the nominee is an unsuitable person, and to make such other determinations as the Governance Committee or the Board may deem appropriate or necessary.
The foregoing is a brief summary of the requirements to properly nominate an individual for election to the Board. For further information regarding director nominations by shareholders, please see Article VII of the Companys bylaws.
Shareholders who wish to communicate with directors should do so by writing to Penn National Gaming, Inc., 825 Berkshire Boulevard, Suite 200, Wyomissing, PA 19610, Attention: Secretary. The Secretary of the Company reviews all such correspondence and forwards to the Board a summary of all such correspondence and copies of all correspondence that, in the opinion of the Secretary, deals with the functions of the Board or Board committees or that the Secretary otherwise determines requires their attention. Directors may at any time review a log of all correspondence received by the Company that is addressed to members of the Board and request copies of any such correspondence. Concerns relating to accounting, internal controls or auditing matters will be brought to the attention of the Audit Committee.
Delinquent Section 16(a) Reports
Section 16(a) of the Exchange Act requires our directors and executive officers and persons who own more than 10% of a registered class of our equity securities to file reports of ownership and changes in ownership with the SEC. The reporting officers, directors and 10% stockholders are also required to furnish us with copies of all Section 16(a) forms that they file. Based solely upon a review of these filings and written representations from such directors and officers, we believe that the directors, executive officers and greater than 10% stockholders complied with these requirements in a timely manner during the fiscal year 2020 with the exception of one gift from a prior year by Mr. Jacquemin that was reported on a Form 5.
Compensation Committee Interlocks and Insider Participation
During 2020, the members of the Companys Compensation Committee were Messes. Kohn and Kaplowitz and Messrs. Jacquemin and Naples. None of the members of the Compensation Committee was an officer or employee or former officer or employee of the Company or its subsidiaries or has any interlocking relationships that are subject to disclosure under the rules of the SEC relating to compensation committees.
80 | PENN NATIONAL GAMING, INC. |
Questions and Answers About The Annual Meeting and Voting
Who is entitled to vote at the Annual Meeting?
The Board of Directors has set the close of business on April 7, 2021 as the record date (the Record Date) for the determination of shareholders of the Company entitled to notice of, and to vote at, the Annual Meeting. On the Record Date, 156,571,196 shares of the Companys common stock were issued and outstanding and entitled to vote at the Annual Meeting.
You have one vote for each share of common stock you owned as of the Record Date for the Annual Meeting.
Do shareholders have cumulative voting rights with respect to the election of directors?
No, shareholders do not have cumulative voting rights with respect to the election of directors.
In order for business to be conducted at the Annual Meeting, a quorum must be present. The presence, virtually or by valid proxy, of shareholders entitled to cast at least a majority of the votes that all shareholders are entitled to cast is necessary for a quorum to be present at the Annual Meeting.
What am I voting on and what votes are required?
Assuming a quorum is present, the following votes will be required for approval:
Proposal | Matter | Vote Required | ||
Proposal 1 |
Election of Class I Directors | The two nominees for director receiving the highest number of votes cast will be elected | ||
Proposal 2 |
Approval of the Companys Second Amended and Restated Articles of Incorporation to increase the number of authorized shares of common stock from 200,000,000 to 400,000,000 | Majority of votes cast | ||
Proposal 3 |
Approval of the Companys Amended and Restated 2018 Long Term Incentive Compensation Plan | Majority of votes cast | ||
Proposal 4 |
Ratification of the selection of Deloitte & Touche LLP as the Companys independent registered public accounting firm for the 2021 fiscal year | Majority of votes cast | ||
Proposal 5 |
Approval, on advisory basis, of the compensation paid to the Companys named executive officers |
Majority of votes cast |
For purposes of determining the number of votes cast, only those cast for or against are counted. Abstentions, withhold votes and broker non-votes are not considered cast but are counted for purposes of determining whether a quorum is present at the Annual Meeting and therefore do not have an impact once a quorum is present.
Will any other matter be voted on?
As of the date of this Proxy Statement, we know of no matter that will be presented for consideration at the Annual Meeting other than those matters described in this Proxy Statement. If any other matters properly come before the meeting and call for a vote of the shareholders, the appointed proxies may use their discretion to vote on any such matters.
What is the difference between holding shares of record and as a beneficial owner?
If your shares are registered directly in your name with the Companys transfer agent, Continental Stock Transfer & Trust (Continental), you are considered a shareholder of record. If you are a shareholder of record, the Notice and proxy materials, as applicable, were sent to you directly by the Company, and you may vote by any of the methods described below under How do I vote?.
If your shares are registered in the name of a broker, bank, or other nominee on your behalf (referred to as being held in street name), you are considered a beneficial owner of shares held in street name, and the broker, bank, or other nominee forwarded the Notice and, if you requested them, the proxy materials to you. As the beneficial owner, you have the right to direct your broker, bank, or other nominee holding your shares how to vote and you are also invited to virtually attend the Annual Meeting.
2021 PROXY STATEMENT | 81 |
SHAREHOLDERS OF RECORD (shares registered on the books of the Company via Continental) |
VOTING METHOD | BENEFICIAL OWNERS (shares held through your bank or brokerage account) | ||
www.proxyvote.com (you will need the Control Number from the Notice or proxy card you received) |
Internet | www.proxyvote.com (you will need the Control Number from the Notice or voter instruction form you received) | ||
www.virtualshareholdermeeting.com/PENN2021 (you will need the Control Number from the Notice or proxy card you received) |
Internet (during the Annual Meeting) |
www.virtualshareholdermeeting.com/PENN2021
(you will need the Control Number from the Notice or voting instruction form you received or you will need to obtain a legal proxy from the bank, brokerage or other institution holding your shares)*
*If you are a beneficial owner and do not have your 16-digit control number then you may be able gain access to the Annual Meeting by logging into your broker, brokerage firm, bank or other nominees website and selecting the shareholder communications mailbox to link through to the Annual Meeting, which will then automatically transmit your 16-digit control number and therefore enable you to vote your shares and submit questions relating to meeting matters during the meeting. Instructions should be provided on the voting instruction form provided by your broker, bank, or other nominee. | ||
1-800-690-6903 (you will need the Control Number from the Notice or proxy card you received) |
Telephone | 1-800-454-8683 (you will need the Control Number from the Notice or voter instruction form you received) | ||
Sign, date and return your proxy card | Sign, date and return your voter instruction form |
If your shares are owned in joint names, all joint owners must vote by the same method, and if joint owners vote by mail, all of the joint owners must sign the proxy card. The deadline for voting by telephone or via the Internet prior to the Annual Meeting is 11:59 p.m. Eastern time on June 8, 2021.
What is the effect of giving a proxy?
Proxies are solicited by and on behalf of our Board of Directors, and the persons named in the proxy have been designated as proxies by our Board of Directors. When proxies are properly dated, executed and returned, the shares represented by such proxies will be voted at the Annual Meeting in accordance with the instructions of the shareholder. If no specific instructions are given, however, the shares will be voted in accordance with the recommendations of our Board of Directors (i.e., FOR each of the nominees in Proposal 1 and FOR Proposals 2, 3, 4 and 5). If any matters not described in this Proxy Statement are properly presented at the Annual Meeting, the proxy holders will use their own judgment to determine how to vote the shares. If the Annual Meeting is adjourned, the proxy holders can vote the shares on the new Annual Meeting date as well, unless you have properly revoked your proxy instructions, as described below.
A broker non-vote occurs when a broker, bank, or other nominee holding shares on behalf of a beneficial owner is prohibited from exercising discretionary voting authority for a beneficial owner who has not provided voting instructions. Brokers, banks, and other nominees may vote without instruction only on routine proposals. On non-routine proposals, nominees cannot vote without instructions from the beneficial owner, resulting in so called broker non-votes. Proposal 4, the ratification of the selection of Deloitte & Touche LLP as the Companys independent registered public accounting firm, is the only routine proposal on the ballot for the Annual Meeting. All other proposals are non-routine. If you hold your shares with a broker, bank, or other nominee, they will not be voted on non-routine proposals unless you give voting instructions to such nominee.
You may revoke your proxy and change your vote at any time before the voting deadline for the Annual Meeting. After your initial vote, you may vote again on a later date any time prior to the Annual Meeting via the Internet or by telephone (only your latest Internet or telephone proxy submitted prior to the voting deadline for the Annual Meeting will be counted), by signing and returning a new proxy card or voting instruction form with a later date to the Secretary of the Company at 825 Berkshire Boulevard, Suite 200, Wyomissing, Pennsylvania 19610, Attention: Secretary or by virtually attending the Annual Meeting and voting via the Internet by visiting
82 | PENN NATIONAL GAMING, INC. |
www.virtualshareholdermeeting.com/PENN2021 (a legal proxy is required if you hold your shares in street name and you plan to vote via the Internet at the Annual Meeting). However, your attendance at the Annual Meeting will not automatically revoke your proxy unless you vote again at the Annual Meeting or specifically request in writing that your prior proxy be revoked. If your shares are held in street name by a broker, bank, or other nominee, you must contact that nominee to change your vote.
All shareholders as of the close of business on April 7, 2021 and properly appointed proxy holders may attend and participate in the virtual Annual Meeting. You cannot attend the Annual Meeting physically.
To be admitted to the Annual Meeting at www.virtualshareholdermeeting.com/PENN2021, you must enter the 16-digit control number found in the control number box included on your Notice Regarding the Availability of Proxy Materials for the Annual Meeting to be held on June 9, 2021 (the Notice) or proxy card (if you receive a printed copy of the proxy materials). If you are a beneficial owner and do not have your 16-digit control number then you may be able gain access to the Annual Meeting by logging into your broker, brokerage firm, bank or other nominees website and selecting the shareholder communications mailbox to link through to the Annual Meeting, which will then automatically transmit your 16-digit control number and therefore enable you to vote your shares and submit questions relating to meeting matters during the meeting. Instructions should be provided on the voting instruction form provided by your broker, bank, or other nominee. We encourage you to access the Annual Meeting webcast prior to the start time. Online check-in will begin, and shareholders may begin submitting written questions, at 9:45 a.m. Eastern time and you should allow ample time for the check-in procedures.
We will have technicians ready to assist you with any technical difficulties you may have accessing the virtual meeting or submitting questions. If you encounter any difficulties accessing the virtual meeting during the check-in or meeting time, please call the technical support number that will be posted on the Annual Meeting log in page.
Why did I receive a notice in the mail regarding the Internet availability of proxy materials instead of a full set of printed proxy materials?
In accordance with rules adopted by the SEC, we may furnish proxy materials, including this Proxy Statement and the Annual Report on Form 10-K for the fiscal year ended December 31, 2020 (the Annual Report), to our shareholders by providing access to such documents on the Internet instead of mailing printed copies. Most shareholders will not receive printed copies of the proxy materials unless they request them. Instead, the Notice Regarding the Availability of Proxy Materials for the 2021 Annual Meeting of Shareholders (the Notice), which was mailed to most of our shareholders, will instruct you as to how you may access and review all of the proxy materials on the Internet. The Notice also instructs you as to how you may submit your proxy on the Internet. If you would like to receive a paper or email copy of our proxy materials, you should follow the instructions for requesting such materials in the Notice. In addition, you may request to receive all future proxy materials in printed form by mail or electronically by email by following the instructions contained in the Notice. We encourage shareholders to take advantage of the availability of our proxy materials on the Internet to help reduce the environmental impact of our annual meetings of shareholders.
Who will bear the costs of this solicitation and how will proxies be solicited?
The Company has engaged the services of Innisfree M&A Incorporated, a third party proxy solicitation firm, to assist in its proxy solicitation efforts. The Company estimates that the fees to be paid to Innisfree M&A Incorporated for this service will be approximately $15,000, plus reimbursement for out-of-pocket expenses. The Company will bear the cost of this solicitation. In addition, the Company may reimburse brokerage firms and other persons representing beneficial owners of shares for their expenses in forwarding solicitation material to such beneficial owners. Proxies also may be solicited by certain directors, officers and employees of the Company, without additional compensation, personally or by telephone or via the Internet.
Where can I find the voting results of the Annual Meeting?
We will announce preliminary voting results at the Annual Meeting. We will also disclose voting results on a Current Report on Form 8-K that we will file with the SEC within four business days after the Annual Meeting. If final voting results are not available to us in time to file a Current Report on Form 8-K, we will file a Current Report on Form 8-K to publish preliminary results and will provide the final results in an amendment to the Current Report on Form 8-K as soon as they become available.
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The Company is mailing to all shareholders of record as of the close of business on April 7, 2021 a copy of its Annual Report and a proxy card together with this Proxy Statement, or the Notice containing instructions on how to access this Proxy Statement and the Annual Report and how to vote via the Internet. The Board of Directors does not know of any other business that will be presented for consideration at the Annual Meeting. Except as the Board of Directors may otherwise permit, only the business set forth and discussed in the Notice of Annual Meeting and Proxy Statement may be acted on at the Annual Meeting. If any other business does properly come before the Annual Meeting or any postponement or adjournment thereof, the proxy holders will vote in regard thereto according to their discretion.
Under the Companys bylaws, no business may be brought before an annual meeting unless it is specified in the notice of the meeting or is otherwise brought before the meeting by or at the direction of the Board or by a shareholder who has owned beneficially at least 1% of the Companys common stock for a continuous period of not less than 12 months prior to making the proposal and who has delivered proper written notice to the Companys Secretary (containing certain information specified in the bylaws about the shareholder and the proposed action) not less than 120 nor more than 150 days prior to the first anniversary of the preceding years annual meeting. Accordingly, proposals with respect to the 2022 annual meeting of shareholders must be delivered between January 10, 2022 and February 9, 2022. These requirements are separate from the SECs requirements that a shareholder must meet in order to have a shareholder proposal included in the Companys proxy statement pursuant to Rule 14a-8 promulgated under the Exchange Act.
Shareholders interested in submitting a proposal for inclusion in the proxy materials for the annual meeting of shareholders in 2022 may do so by following the procedures prescribed in Rule 14a-8 promulgated under the Exchange Act. To be eligible for inclusion, shareholder proposals must be received by the Companys Secretary no later than December 28, 2021. Proposals should be sent to the Companys principal executive office, 825 Berkshire Boulevard, Suite 200, Wyomissing, Pennsylvania 19610, directed to the attention of the Secretary.
Householding of Proxy Materials
Certain shareholders who share the same address may receive only one copy of the Proxy Statement and the Annual Report in accordance with a notice delivered from such shareholders bank, broker or other holder of record, unless the applicable bank, broker or other holder of record received contrary instructions. This practice, known as householding, is designed to reduce printing and postage costs. Shareholders owning their shares through a bank, broker or other holder of record who wish to either discontinue or commence householding may request or discontinue householding, or may request a separate copy of the Notice and, if applicable, the Proxy Statement or the Annual Report, either by contacting their bank, broker or other holder of record at the telephone number or address provided in the above referenced notice, or contacting the Company by telephone at (610) 373-2400 or in writing at 825 Berkshire Boulevard, Suite 200, Wyomissing, Pennsylvania 19610, Attention: Secretary. Shareholders who are requesting to commence or discontinue householding should provide their name, the name of their broker, bank or other record holder, and their account information.
By order of the Board of Directors | ||
Harper Ko | ||
April 27, 2021 |
Executive Vice President, Chief Legal Officer and Secretary |
84 | PENN NATIONAL GAMING, INC. |
APPENDIX A
SECOND AMENDED AND RESTATED ARTICLES OF INCORPORATION OF PENN NATIONAL GAMING, INC.
Penn National Gaming, Inc. (hereinafter called the Corporation), a corporation organized and existing under the laws of the State of Pennsylvania, does hereby certify as follows:
FIRST: The Amended and Restated Articles of Incorporation of the Corporation was filed with the Pennsylvania Department of State on May 8, 1996 under the name Penn National Gaming, Inc.
SECOND: The first Amendment to the Amended and Restated Articles of Incorporation of the Corporation was filed with the Pennsylvania Department of State on November 13, 1996.
THIRD: The second Amendment to the Amended and Restated Articles of Incorporation of the Corporation was filed with the Pennsylvania Department of State on July 23, 2001.
FOURTH: The third Amendment to the Amended and Restated Articles of Incorporation of the Corporation was filed with the Pennsylvania Department of State on December 28, 2007.
FIFTH: The Statement with Respect to Shares of Series C Convertible Preferred Stock of the Corporation was filed with the Pennsylvania Department of State on January 17, 2013.
SIXTH: The Statement with Respect to Shares of Series D Convertible Preferred Stock of the Corporation was filed with the Pennsylvania Department of State on February 19, 2020.
SEVENTH: This Second Amended and Restated Articles of Incorporation has been duly adopted by the requisite vote of the shareholders of the Corporation in accordance with the provisions of Section 1914 of the Pennsylvania Business Corporation Law of 1988.
EIGHTH: This Second Amended and Restated Articles of Incorporation amends, restates and integrates the provisions of the Corporations Amended and Restated Articles of Incorporation, as amended.
NINTH: The text of the Amended and Restated Articles of Incorporation, as amended, is hereby amended and restated to read in its entirety as follows:
(1) The name of the Corporation is: Penn National Gaming, Inc.
(2) The Corporation was incorporated under the provisions of the Act of May 5, 1933, as amended.
(3) The address of the Corporations registered office in this Commonwealth is: Wyomissing Professional Center, 825 Berkshire Boulevard, Suite 200, Wyomissing, Berks County, Pennsylvania 19610.
(4) The aggregate number of shares which this Corporation shall have authority to issue is:
(a) Four Hundred Million (400,000,000) shares of Common Stock with a par value of $.01 per share; and
(b) (i) One Million (1,000,000) shares of Preferred Stock with a par value of $.01 per share.
(ii) The Preferred Stock may be issued from time to time in one or more series with such distinctive designations as may be stated in the resolution or resolutions providing for the issue of such stock adopted, from time to time, by the Board of Directors of this Corporation. The resolution or resolutions providing for the issue of shares of a particular series shall fix, subject to applicable laws and the provisions hereof, the designation, rights, preferences and limitations of the shares of each such series. The authority of the Board of Directors with respect to each series shall include, but not be limited to, determination of the following:
(A) The number of shares constituting such series, including the authority to increase or decrease such number, and the distinctive designation of such series;
(B) The dividend rate of the shares of such series, whether the dividends shall be cumulative and, if so, the date from which they shall be cumulative, and the relative rights of priority, if any, of payment of dividends on shares of such series;
(C) The right, if any, of the Corporation to redeem shares of such series and the terms and conditions of such redemption;
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(D) The rights of the shares in case of a voluntary or involuntary liquidation, dissolution or winding up of the Corporation, and the relative rights of priority, if any, of payment of shares of such series;
(E) The voting power, if any, of such series and the terms and conditions under which such voting power may be exercised;
(F) The obligation, if any, of the Corporation to retire shares of such series pursuant to a retirement or sinking fund or funds of a similar nature or otherwise and the terms and conditions of such obligations;
(G) The terms and conditions, if any, upon which shares of such series shall be convertible into or exchangeable for shares of stock of any other class or classes, including the price or prices or the rate or rates of conversion or exchange and the terms of adjustment if any; and
(H) Any other rights, preferences or limitations of the shares of such series.
(5) In all elections for Directors, each shareholder entitled to vote shall be entitled to only one vote for each share held, it being intended hereby to deny to shareholders of this Corporation the right of cumulative voting in the election of Directors.
(6) (a) Except as otherwise fixed by or pursuant to the provisions of Article 6 hereof relating to the rights of the holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation to elect additional directors under specified circumstances, the number of Directors of the Corporation shall be fixed from time to time by or pursuant to the Bylaws of the Corporation. The Directors, other than those who may be elected by the holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation, shall be classified, with respect to the time for which they severally hold office, into three classes, as nearly equal in number as possible, as shall be provided in the manner specified in the Bylaws of the Corporation, one class to be originally elected for a term expiring at the annual meeting of shareholders to be held in 1997, another class to be elected for a term expiring at the annual meeting of shareholders to be held in 1998, and another class to be originally elected for a term expiring at the annual meeting of shareholders to be held in 1999, with each director to hold office until his or her successors of the class of Directors whose term expires at that meeting shall be elected to hold office for a term expiring at the annual meeting of shareholders held in the third year following the year of election.
(b) Advance notice of shareholder nominations for the election of Directors and advance notice of business to be brought by shareholders before an annual meeting shall be given in the manner provided in the Bylaws of the Corporation.
(c) Except as otherwise provided for or fixed by or pursuant to the provisions of Article 6 hereof relating to the rights of the holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation to elect additional directors under specified circumstances, newly created directorships resulting from any increase in the number of Directors and any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other case shall be filled only by the affirmative vote of a majority of the remaining Directors then in office, even though less than a quorum of the Board of Directors. Any Directors elected in accordance with the preceding sentence shall hold office for the remainder of the full term of the class of Directors in which the new directorship was created or the vacancy occurred and until such Directors successor shall have been duly elected and qualified. No decrease in the number of Directors constituting the Board of Directors shall shorten the term of any incumbent Director.
(d) Subject to the rights of any class or series of stock having preference over the Common Stock as to dividends or upon liquidation to elect Directors under specified circumstances, any Director may be removed from office, with or without cause, only by the affirmative vote of the holders of 75% of the voting power of all shares of the Corporation entitled to vote generally in the election of Directors, voting together as a single class.
(e) Notwithstanding anything contained in this Second Amended and Restated Articles of Incorporation to the contrary, the affirmative vote of the holders of at least 75% of the voting power of all shares of the Corporation entitled to vote generally in the election of Directors voting together as a single class, shall be required to alter, amend or repeal this Article 6.
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(7) Any or all classes and series of shares, or any part thereof, may be represented by certificates or may be uncertificated shares, provided, however, that any shares represented by a certificate that are issued and outstanding shall continue to be represented thereby until the certificate is surrendered to the Corporation. The rights and obligations of the holders of shares represented by certificates and the rights and obligations of the holders of uncertificated shares of the same class and series shall be identical.
IN TESTIMONY WHEREOF, the undersigned has executed and sealed this Second Amended and Restated Articles of Incorporation.
PENN NATIONAL GAMING, INC. | ||
By: |
Name: |
||
Title: |
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APPENDIX B
PENN NATIONAL GAMING, INC.
2018 LONG TERM INCENTIVE
COMPENSATION PLAN
(as amended and restated effective June 9, 2021)
TABLE OF CONTENTS
PENN NATIONAL GAMING, INC.
2018 LONG TERM INCENTIVE COMPENSATION PLAN
(as amended and restated effective June 9, 2021)
PURPOSE
The 2018 Long Term Incentive Compensation Plan is intended to advance the interests of Penn National Gaming, Inc., a Pennsylvania corporation, and its shareholders by providing a means by which the Company and its subsidiaries and affiliates shall be able to motivate selected Employees, Directors and Consultants to direct their efforts to those activities that will contribute materially to the Companys success. The Plan is also intended to serve the best interests of the shareholders by linking remunerative benefits paid to selected Employees, Directors and Consultants who have substantial responsibility for the successful operation, administration and management of the Company and/or its subsidiaries and affiliates with the enhancement of shareholder value while such selected Employees, Directors and Consultants increase their proprietary interest in the Company. Finally, the Plan is intended to enable the Company to attract and retain in its service highly qualified persons for the successful conduct of its business.
DEFINITIONS AND CONSTRUCTION
The following words and phrases when used in the Plan with an initial capital letter, unless their context clearly indicates to the contrary, shall have the respective meanings set forth below in this Section 2.1:
Act. The Securities Exchange Act of 1934, as now in effect or as hereafter amended from time to time.
Award. A grant of one of the following under the Plan: Stock Option Award, Stock Appreciation Right Award, Restricted Stock Award, Phantom Stock Unit Award, and Other Award, all as further defined herein.
Award Agreement. The written instrument delivered by the Company to a Grantee evidencing an Award, and setting forth such terms and conditions of the Award as may be deemed appropriate by the Grantor. The Award Agreement shall be in a form approved by the Grantor, and once executed, shall be amended from time to time to include such additional or amended terms and conditions as the Grantor may specify after the execution in the exercise of his or its, as the case may be, powers under the Plan.
Beneficiary. Any individual, estate or trust who or which by designation of a Holder pursuant to Section 12.3 or operation of law succeeds to the rights and obligations of the Holder under the Plan and one or more Award Agreements.
Board. The Board of Directors of the Company, as it may be constituted from time to time. For the avoidance of doubt, the Board shall not include any director emeritus or chairman emeritus.
Cause. Fraud, embezzlement, theft or dishonesty against the Company, conviction of a felony, willful misconduct, being found unsuitable by a regulatory authority having jurisdiction over the Company, willful and wrongful disclosure of confidential information, engagement in competition with the Company and any other conduct defined as cause in any agreement between a Grantee and the Company or any Subsidiary, in each case during employment with the Company and all Subsidiaries or service as a Director, as the case may be.
CEO. The Chief Executive Officer of the Company or his designee(s).
Change of Control.
(a) With respect to Awards that are not deferred compensation under Section 409A of the Code, any of the following events shall constitute a Change of Control for purposes of this Plan:
(i) the acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Act) (a Person) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Act) of fifty percent (50%) or more of either (A) the then outstanding shares of the Company (the Outstanding Company Shares) or (B) the combined voting power of the then outstanding voting securities of the Company entitled
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to vote generally in the election of directors (the Outstanding Company Voting Securities); provided, however, that for purposes of this Subsection (i), the following acquisitions shall not constitute a Change of Control: (1) any acquisition directly from the Company; (2) any acquisition by the Company; (3) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company; or (4) any acquisition pursuant to a transaction which complies with clauses (A), (B) and (C) of Subsection (iii) below; or
(ii) approval by the shareholders of the Company of a complete liquidation or dissolution of the Company; or
(iii) consummation of a reorganization, merger or consolidation or sale or other disposition of all or substantially all of the assets of the Company or the acquisition of assets of another entity (each, a Corporate Transaction), in each case, unless, following such Corporate Transaction, (A) all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding Company Shares and Outstanding Company Voting Securities immediately prior to such Corporate Transaction beneficially own, directly or indirectly, more than fifty percent (50%) of, respectively, the then outstanding shares and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation or other entity resulting from such Corporate Transaction (including, without limitation, a corporation which as a result of such transaction owns the Company or all or substantially all of the Companys assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to such Corporate Transaction of the Outstanding Company Shares and Outstanding Company Voting Securities, as the case may be, (B) no Person (excluding any employee benefit plan or related trust of the Company or such corporation resulting from such Corporate Transaction) beneficially owns, directly or indirectly, twenty percent (20%) or more of, respectively, the then outstanding shares of the corporation resulting from such Corporate Transaction or the combined voting power of the then outstanding voting securities of such corporation except to the extent that such ownership of the Company existed prior to the Corporate Transaction and (C) at least a majority of the members of the board of directors of the corporation (or other governing board of a non-corporate entity) resulting from such Corporate Transaction were members of the Incumbent Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such Corporate Transaction; or
(iv) individuals who, as of the Effective Date, constitute the Board (the Incumbent Board) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the Effective Date whose election, or nomination for election by the Companys shareholders, was approved by a vote of at least two-thirds (2/3) of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board.
(b) With respect to Awards that are deferred compensation under Section 409A of the Code, to the extent necessary to avoid incurring adverse tax consequences under Section 409A of the Code with respect to such Awards, each of the foregoing events shall only be deemed to be a Change of Control for purposes of the Plan to the extent such event qualifies as a change in control event for purposes of Section 409A of the Code. The Grantor shall be entitled to amend or interpret the terms of any Award to the extent necessary to avoid adverse Federal income tax consequences to a Grantee under Section 409A of the Code.
Clawback Policy. Clawback Policy shall mean the Penn National Gaming, Inc. Executive Incentive Compensation Recoupment Policy, adopted as of April 25, 2014, and as amended from time to time.
Code. The Internal Revenue Code of 1986, as amended from time to time.
Committee. The Compensation Committee of the Board.
Common Stock. Common stock of the Company, par value $0.01.
Company. Penn National Gaming, Inc., a Pennsylvania corporation, and its successors and assigns.
Consultant. Any consultant or advisor to the Company or a Subsidiary.
Date of Grant. The date as of which the Grantor grants an Award.
Director. A member of the Board who is not also an employee of the Company or any Subsidiary, and, for purposes of this Plan, any director emeritus or chairman emeritus.
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Disability. A physical or mental impairment sufficient to make the Grantee who is an Employee eligible for benefits under the Companys or Subsidiarys long-term disability plan in which the Grantee is a participant. A Grantee who is a Director shall be treated as having a Disability if a physical or mental impairment would have made the Director eligible for benefits under the Companys long-term disability plan had the Director been an Employee.
Effective Date. June 13, 2018, the date on which the shareholders of the Company first approved the Plan.
Employee. An employee of the Company or any Subsidiary or parent corporation within the meaning of Section 424(e) of the Code.
Fair Market Value. With respect to the Common Stock on any day, (i) the closing sales price on the immediately preceding business day of a share of Common Stock as reported on the principal securities exchange on which shares of Common Stock are then listed or admitted to trading, or (ii) if the Common Stock is not listed or admitted to trading on a securities exchange, as determined in a manner specified by the Committee determined in accordance with Section 409A of the Code. A business day is any day on which the relevant market is open for trading.
Grantee. A current or former Employee, Director or Consultant to whom an Award is or has been granted.
Grantor. With respect to an Award granted to an Employee or Consultant, the Committee or the CEO (with respect to Nonreporting Persons), as the case may be, that grants the Award. With respect to an Award granted to a Director, the Board or Committee is the Grantor.
Holder. The individual who holds an Award, who shall be the Grantee or a Beneficiary.
Incentive Stock Option or ISO. An Option that is intended to meet, and structured with a view to satisfying, the requirements of Section 422 of the Code and is designated by the Grantor as an Incentive Stock Option.
Non-Qualified Stock Option. An Option that is not designated by the Grantor as an Incentive Stock Option, or an Option that is designated by the Grantor as an Incentive Stock Option if it does not satisfy the requirements of Section 422 of the Code.
Nonreporting Person. A Grantee who is not subject to Section 16 of the Act.
Option or Stock Option. A right granted pursuant to Article V.
Option Period. The period beginning on the Date of Grant of an Option and ending on the date the Option terminates.
Option Price. The per share price at which shares of Common Stock may be purchased upon exercise of a particular Option.
Other Award. Awards granted pursuant to Article IX.
Performance Goals. One or more of the following performance criteria, either individually, alternatively or in any combination, applied to either the Company as a whole or to a business unit or related company, and measured either annually or cumulatively over a period of years, on an absolute basis or relative to a pre-established target, to a previous years results or to a designated comparison group, in each case as specified by the Grantor in the Award: free cash flow, EBITDA, sales, revenue, revenue growth, income, operating income, net income, net earnings, earnings per share, return on total capital, return on equity, cash flow, operating profit and margin rate, gross margins, debt leverage (debt to capital), market capitalization, total enterprise value (market capitalization plus debt), total shareholder return and stock price. The Grantor shall appropriately adjust any Performance Goal to take into account the impact of any of the following events on the Company that occurs during the period to which such Performance Goal is applied: asset write-downs; litigation, claims, judgments, settlements; currency fluctuations and other non-cash charges; changes in applicable law, rule or regulation or accounting principles; accruals for reorganization and restructuring programs; costs incurred in the pursuit of acquisition opportunities; strikes, delays or similar disruptions by organized labor, guilds or horsemens organizations; national macroeconomic conditions; terrorism and other international hostilities; significant regional weather events; and any other extraordinary, unusual or non-recurring as described in Accounting Principles Board Opinion No. 30 and/or managements discussion and analysis of financial condition and results of operations appearing in the Companys securities filings. Any Award may be granted subject to the attainment of such Performance Goals as determined by the Grantor.
Phantom Stock Unit Award. An Award of Phantom Stock Units under Article VIII.
Plan. Penn National Gaming, Inc. 2018 Long Term Incentive Compensation Plan, as set forth herein and as amended from time to time.
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Reporting Person. A Grantee who is subject to Section 16 of the Act.
Restricted Period. The period of time beginning with the Date of Grant of a Restricted Stock Award and ending when the Restricted Stock is forfeited or when all conditions for vesting are satisfied.
Restricted Stock. Shares of Common Stock issued pursuant to a Restricted Stock Award.
Restricted Stock Award. An Award of Restricted Stock under Article VII.
Retirement. A separation from service by the Grantee (i) on or after the attainment of age 55 with at least ten (10) Years of Service or (ii) on or after the attainment of age 65. Years of Service shall be determined pursuant to the terms of the Penn National Gaming, Inc. 401(k) Plan.
Rule 16b-3. Rule 16b-3 of the General Rules and Regulations under the Act, or any law, rule, regulation or other provision that may hereafter replace such Rule.
SAR Base Amount. An amount set forth in the Award Agreement for a SAR.
Securities Act. The Securities Act of 1933, as now in effect or as hereafter amended from time to time.
Stock Appreciation Right or SAR. A right granted under Article VI.
Stock Appreciation Right Award. An Award of Stock Appreciation Rights under Article VI.
Stock Option Award. An Award of Options under Article V.
Subsidiary. Any corporation, partnership, joint venture or other entity in which the Committee has determined that the Company had made, directly or indirectly through one or more intermediaries, a substantial investment or commitment, including, without limit, through the purchase of equity or debt or the entering into of a management agreement or joint operating agreement. In the case of Incentive Stock Options, Subsidiary shall mean any entity that qualifies as a subsidiary corporation of the Company under Section 424(f) of the Code.
Ten Percent Shareholder. A person owning shares possessing more than 10% of the total combined voting power of all classes of shares of the Company, any subsidiary corporation (within the meaning of Section 424(f) of the Code) or parent corporation (within the meaning of Section 424(e) of the Code).
Whenever any words are used herein in the masculine gender, they shall be construed as though they were also used in the feminine gender in all cases where they would so apply, and wherever any words are used herein in the singular form they shall be construed as though they were also used in the plural form in all cases where they would so apply. Headings of Sections and Subsections of the Plan are inserted for convenience of reference, are not a part of the Plan, and are not to be considered in the construction hereof. The words hereof, herein, hereunder and other similar compounds of the word here shall mean and refer to the entire Plan, and not to any particular provision or Section. The words includes, including and other similar compounds of the word include shall mean and refer to including without limitation. All references herein to specific Articles, Sections or Subsections shall mean Articles, Sections or Subsections of this document unless otherwise qualified.
STOCK AVAILABLE FOR AWARDS
Shares of Common Stock may be delivered under the Plan, such shares to be made available from authorized but unissued shares or from shares reacquired by the Company, including shares purchased in the open market.
Section 3.2 Number of Shares Deliverable
Subject to adjustments as provided in Section 11.2, no more than 12,700,000 shares of Common Stock may be issued under the Plan. Any shares of Common Stock issued under Options or Stock Appreciation Rights shall be counted against this limit as one (1) share of Common Stock. Any shares of Common Stock issued under Awards (other than Options or Stock Appreciation Rights) shall be counted against this limit as 2.3 shares of Common Stock. Any Awards that are not settled in shares of Common Stock shall not count against this limit.
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The Plan will remain in place until all of the awards granted thereunder have been paid or expired. Any shares remaining available for issuance under the Plan will be cancelled upon the subsequent approval of a new equity plan by the Company.
Shares of Common Stock subject to an Award that are forfeited to the Company shall again be available for issuance under the Plan. For the avoidance of doubt, the following shares of Common Stock may not again be made available for issuance as Awards under the Plan: (i) shares of Common Stock not issued or delivered as a result of the net settlement of an outstanding Stock Option or SAR, (ii) shares of Common Stock used to pay the Option Price or withholding taxes related to an outstanding Stock Option or SAR, or (iii) shares of Common Stock repurchased on the open market with the proceeds of the Option Price.
AWARDS AND AWARD AGREEMENTS
4.1.1 Subject to the provisions of the Plan, the Committee may at any time (i) determine and designate those Reporting Persons who are Employees to whom Awards are to be granted; (ii) determine the time or times when Awards to Reporting Persons who are Employees shall be granted; (iii) determine the form or forms of Awards to be granted to any Reporting Person who is an Employee; (iv) determine the number of shares of Common Stock or dollar amounts subject to or denominated by each Award to be granted to any Reporting Person who is an Employee; (v) determine the terms and conditions of each Award to a Reporting Person who is an Employee; (vi) determine the maximum aggregate number of shares or, for purposes of Other Awards payable in cash, the aggregate amount of cash subject to Awards to be granted to Nonreporting Persons, as a group, who are Employees; and (vii) determine the general form or forms of Awards to be granted to Nonreporting Persons who are Employees.
4.1.2 The Committee or the CEO, subject to the provisions of the Plan and authorization by the Committee, may, at any time and from time to time, (i) determine and designate those Nonreporting Persons who are Employees or Consultants to whom Awards are to be granted; (ii) determine when Awards to Nonreporting Persons who are Employees or Consultants shall be granted; (iii) determine the form or forms of Award to be granted to any Nonreporting Person who is an Employee or Consultant, from among the form or forms approved by the Committee; (iv) determine the number of shares of Common Stock or dollar amounts subject to or denominated by each Award to be granted to any Nonreporting Person who is an Employee or Consultant; and (v) determine the terms and conditions of each Award to a Nonreporting Person who is an Employee or Consultant.
4.1.3 Subject to the provisions of the Plan, the Board or Committee may, at any time, (i) determine and designate those Directors to whom Awards, other than Incentive Stock Options, are to be granted; (ii) determine when Awards to Directors shall be granted; (iii) determine the form of Awards to be granted to any Director; (iv) determine the number of shares of Common Stock or dollar amounts subject to or denominated by each Award to be granted to a Director; and (v) determine the terms and condition of each Award to a Director.
4.1.4 Awards may be granted singly, in combination or in tandem and may be made in combination or in tandem with or in replacement of, or as alternatives to awards or grants under any other employee plan maintained by the Company or its Subsidiaries. No Awards shall be granted under the Plan after the tenth anniversary of the Effective Date.
Any Employee, Director or Consultant shall be eligible to receive Awards under the Plan. Additionally, except to the extent it would result in adverse tax consequences under Section 409A of the Code and, if the Securities Act applies, provided such recipient is eligible to be offered securities registrable on Form S-8 under the Securities or the Company determines that an Award granted to such person need not comply with the requirements of Form S-8 and will satisfy an exemption under the Securities Act as well as comply with the securities laws of all other relevant jurisdictions, prospective employees, directors, consultants and advisors who have accepted offers of employment,
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service or consultancy from the Company or a Subsidiary (and who will be an Employee, Director or Consultant once employment or services to the Company or a Subsidiary commences) shall also be eligible to receive Awards under the Plan; provided, however, only current employees of the Company or any subsidiary corporation (within the meaning of Section 424(f) of the Code) shall be eligible to receive Incentive Stock Options under the Plan.
Section 4.3 Terms and Conditions; Award Agreements
4.3.1 Terms and Conditions. Each Award granted pursuant to the Plan shall be subject to all of the terms, conditions and restrictions provided in the Plan and such other terms, conditions and restrictions, if any, as may be specified by the Grantor with respect to the Award in the Award Agreement or as may be specified thereafter by the Grantor in the exercise of its or his, as the case may be, powers under the Plan. Without limiting the foregoing, it is understood that the Grantor may, at any time after the granting of an Award hereunder, specify such amended or additional terms, conditions and restrictions with respect to such Award as may be deemed necessary or appropriate to ensure compliance with any and all applicable laws, including, but not limited to, compliance with Federal and state securities laws, compliance with Federal and state gaming or racing laws, compliance with Federal and state tax laws that would otherwise result in adverse and unintended tax consequences for a Grantee, the Company or any Subsidiary and methods of withholding or providing for the payment of required taxes. The terms, conditions and restrictions with respect to any Award, Grantee or Award Agreement need not be identical with the terms, conditions and restrictions with respect to any other Award, Grantee or Award Agreement.
4.3.2 Award Agreements. Except as otherwise provided in the Plan, each Award granted pursuant to the Plan shall be evidenced by an Award Agreement and shall comply with, and be subject to, the provisions of the Plan.
Section 4.4 Award Limits for Directors
In any one calendar year, the Committee shall not grant to any one Director Awards with a value which is in excess of $750,000 in value (calculated as of the date of grant in accordance with applicable financial accounting rules).
OPTIONS
5.1.1 Grants. The Committee may grant Stock Option Awards to such Reporting Persons who are Employees as the Committee may select in its sole discretion. The Committee or the CEO also may grant Stock Option Awards in such number as the Committee or the CEO may determine to such Nonreporting Persons who are Employees or Consultants as the Committee or the CEO may select in its or his, as the case may be, sole discretion; provided, however, such grants shall be subject to any maximum aggregate amount of Awards in general and Options in particular (if any) established by the Committee for grants under the Plan for Nonreporting Persons who are Employees or Consultants. The Board or Committee may grant Options to such Directors as the Board or Committee may select in its sole discretion. The Grantor shall determine the number of shares of Common Stock to which each Option relates. A Stock Option entitles the holder thereof to purchase full shares of Common Stock at a stated price for a specified period of time.
5.1.2 Types of Options
5.1.2.1 Employees. Options granted to Employees pursuant to the Plan may be either in the form of Incentive Stock Options or in the form of Non-Qualified Stock Options.
5.1.2.2 Directors. Options granted to Directors and Consultants pursuant to the Plan will be in the form of Non-Qualified Stock Options.
5.1.3 Maximum Award To An Individual. No individual shall be granted in any calendar year Options to purchase more than 1,000,000 shares of Common Stock. In addition, a Director shall not be granted any Awards which would exceed the limit applicable under Section 4.4 of the Plan.
5.1.4 Internal Revenue Code Limits. Options designated as Incentive Stock Options shall not be eligible for treatment under the Code as incentive stock options (and will be deemed to be Non-Qualified Stock Options) to
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the extent that either (1) the aggregate Fair Market Value of Shares (determined as of the time of grant) with respect to which such Options are exercisable for the first time by the Grantee during any calendar year (under all plans of the Company and any Subsidiary) exceeds $100,000, taking Options into account in the order in which they were granted or (2) such Options otherwise remain exercisable but are not exercised within three (3) months of termination of employment (or such other period of time provided in Section 422 of the Code).
The Option Price of Common Stock covered by each Option shall be determined by the Grantor, but shall not be less than 100% of the Fair Market Value of a share of Common Stock on the Date of Grant, provided, however, in the case of an Incentive Stock Option granted to Ten Percent Shareholder, the Option Price shall be no less than 110% of the Fair Market Value of the of a share of Common Stock on the Date of Grant.
The Grantor shall determine the term of each Option which shall be reflected in the Award Agreement. No Option may be exercised after the expiration of its term. Subject to earlier termination as provided in the Plan, the term shall not exceed ten (10) years from the Date of Grant; provided, that the term of an Incentive Stock Option granted to a Ten Percent Shareholder shall not exceed five (5) years.
5.4.1 Subject to Article X and XIII, each Option shall be exercisable at any time or times during the term of the Option and subject to such conditions, including, without limitation, attainment of one or more Performance Goals, as the Grantor may prescribe in the applicable Award Agreement. Except as provided in Article XIII, an Option may not become exercisable before the first anniversary of the Date of Grant of such Option.
5.4.2 Except as provided in Article X, or as otherwise provided in an Award Agreement, an Option may be exercised only during the Grantees employment with the Company or any of its Subsidiaries or service as a Director or a Consultant. No Option may be exercised for a fractional share.
5.4.3 Method of Exercise. A Holder may exercise an Option, in whole or in part, by giving notice of exercise to the Company, in a form and manner acceptable to the Company.
Section 5.5 Time and Method of Payment for Options
5.5.1 Form of Payment. The Holder shall pay the Option Price in cash or, with the Grantors permission and according to such rules as it may prescribe, by delivering shares of Common Stock already owned by the Holder having a Fair Market Value on the date of exercise equal to the Option Price, or a combination of cash and such shares. The Grantor may also permit payment in accordance with a cashless exercise program under which, if so instructed by the Holder, shares of Common Stock may be issued directly to the Holders broker or dealer who in turn will sell the shares and pay the Option Price in cash to the Company from the sale proceeds. Finally, the Grantor may permit payment by reducing the number of shares of Common Stock delivered upon exercise by an amount equal to the largest number of whole shares of Common Stock with a Fair Market Value that does not exceed the Option Price, with the remainder of the Option Price being payable in cash.
5.5.2 Time of Payment. Except in the case where exercise is conditioned on a simultaneous sale of the Option shares pursuant to a cashless exercise, the Holder shall pay the Option Price before an Option is exercised.
5.5.3 Methods for Tendering Shares. The Grantor shall determine acceptable methods for tendering shares of Common Stock as payment upon exercise of an Option and may impose such limitations and restrictions on the use of shares of Common Stock to exercise an Option as it or he, as the case may be, deems appropriate.
Section 5.6 Delivery of Shares Pursuant to Exercise of Option
No shares of Common Stock shall be delivered pursuant to the exercise, in whole or in part, of any Option, unless and until (i) payment in full of the Option Price for such shares is received by the Company and (ii) compliance with all applicable requirements and conditions of the Plan, the Award Agreement and such rules and regulations as may be established by the Grantor, that are preconditions to delivery. Following exercise of the Option and
2021 PROXY STATEMENT |
B-7 |
payment in full of the Option Price and compliance with the conditions described in the preceding sentence, the Company shall promptly effect the issuance to the Grantee of such number of shares of Common Stock as are subject to the Option exercise.
STOCK APPRECIATION RIGHTS
6.1.1 Grants. The Committee may grant Stock Appreciation Rights Awards to such Reporting Persons who are Employees, as the Committee may select in its sole discretion. The Committee or the CEO also may grant Stock Appreciation Rights Awards in such number as the Committee or the CEO may determine to such Nonreporting Persons who are Employees or Consultants as the Committee or the CEO may select in its or his, as the case may be, sole discretion; provided, however, such grants shall be subject to any maximum aggregate amount of Awards in general and SARs in particular (if any) established by the Committee for grants under the Plan for Nonreporting Persons who are Employees or Consultants as a group. The Board or Committee may grant Stock Appreciation Rights to such Directors as the Board or Committee may select in its sole discretion. The Grantor shall determine the number of shares of Common Stock to which each SAR relates.
6.1.2 Maximum Award To An Individual. No individual shall be granted in any calendar year SARs to purchase more than 1,000,000 shares of Common Stock. In addition, a Director shall not be granted any Awards which would exceed the limit applicable under Section 4.4 of the Plan.
6.1.3 SAR Base Amount. The SAR Base Amount with respect to each SAR shall be determined by the Grantor, but shall not be less than 100% of the Fair Market Value of a share of Common Stock on the Date of Grant.
The Grantor shall determine the term of each SAR. No SAR may be exercised after the expiration of its term. Subject to earlier termination as provided in the Plan, the term shall not exceed ten (10) years from the Date of Grant.
6.3.1 Subject to Articles X and XIII, each SAR shall be exercisable at any time during the term of the SAR and subject to such conditions, including, without limitation, attainment of one or more Performance Goals, as the Grantor may, from time to time, prescribe in the applicable Award Agreement. Except as provided in Article XIII, an SAR may not become exercisable before the first anniversary of the Date of Grant of such SAR.
6.3.2 Except as provided in Article X, or as otherwise provided in an Award Agreement, a SAR may be exercised only during the Grantees employment with the Company or any of its Subsidiaries or service as a Director or Consultant.
6.3.3 Method of Exercise. A Holder may exercise a SAR, in whole or in part, by giving notice of exercise to the Company, in a form and manner acceptable to the Company.
Section 6.4 Payment Amount, Time and Method of Payment With Respect to SARs
6.4.1 A SAR entitles the Holder thereof, upon the Holders exercise of the SAR, to receive an amount equal to the product of (i) the amount by which the Fair Market Value on the exercise date of one share of Common Stock exceeds the SAR Base Amount for such SAR, and (ii) the number of shares covered by the SAR, or portion thereof, that is exercised.
6.4.2 Any payment which may become due from the Company by reason of a Grantees exercise of a SAR may be paid to the Grantee all in cash, all in shares of Common Stock or partly in shares and partly in cash, as provided in the Award Agreement.
6.4.3 In the event that all or a portion of the payment is made in shares of Common Stock, the number of shares of Common Stock received shall be determined by dividing the amount of the payment by the Fair Market Value of a share of Common Stock on the exercise date of the SAR. Cash will be paid in lieu of any fractional share of Common Stock.
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6.4.4 Amounts payable in connection with a SAR shall be paid to the Holder, as determined by the Grantor and as set forth in the applicable Award Agreement or in accordance with such rules, regulations and procedures as may be adopted by the Committee or Grantor.
SARs shall be used solely as a device for the measurement and determination of the amount to be paid on behalf of Grantees as provided in the Plan. SARs shall not constitute or be treated as property or as a trust fund of any kind. All amounts at any time attributable to the SARs shall be and remain the sole property of the Company and all Grantees rights hereunder are limited to the rights to receive cash and shares of Common Stock as provided in the Plan.
RESTRICTED STOCK AWARDS
The Committee may grant Restricted Stock Awards in such number as it may determine to such Reporting Persons who are Employees as the Committee may select in its sole discretion. The Committee or the CEO also may grant in such number as the Committee or the CEO may determine Restricted Stock Awards to such Nonreporting Persons who are Employees or Consultants as the Committee or the CEO may select in its or his, as the case may be, sole discretion; provided, however, such grants shall be subject to any maximum aggregate number of Awards in general and shares of Restricted Stock in particular established by the Committee for grants under the Plan for Nonreporting Persons who are Employees or Consultants as a group. The Board or Committee may grant Restricted Stock Awards to such Directors as the Board or Committee may select in its sole discretion. A Restricted Stock Award is a grant of shares of Common Stock subject to those conditions, if any, set forth in the Plan and the Award Agreement.
Section 7.2 Maximum Award to An Individual
No individual shall be granted or receive in any calendar year a Restricted Stock Award of more than 1,000,000 shares of Common Stock. In addition, a Director shall not be granted any Awards which would exceed the limit applicable under Section 4.4 of the Plan.
The Grantor may, from time to time, establish any condition or conditions on which the Restricted Stock Award will vest and no longer be subject to forfeiture. Such conditions may include, without limitation, continued employment by the Grantee or service as a Director, as the case may be, for a period of time specified in the Award Agreement and/or the attainment of one or more Performance Goals within a time period specified in the Award Agreement. A Restricted Stock Award may, if the Grantor in its sole discretion decides, provide for an unconditioned grant. Except as provided in Article XIII, a Restricted Stock Award may not become vested before the first anniversary of the Date of Grant of such Restricted Stock Award.
Section 7.4 Restrictions and Forfeiture
Except as otherwise provided in the Plan or the applicable Award Agreement, the Restricted Stock shall be subject to the following restrictions until the expiration or termination of the Restricted Period: (i) a Holder shall not be entitled to delivery of a certificate evidencing the shares of Restricted Stock until the end of the Restricted Period and the satisfaction of any and all other conditions specified in the Award Agreement applicable to such Restricted Stock and (ii) none of the Restricted Stock may be sold, transferred, assigned, pledged or otherwise encumbered or disposed of during the Restricted Period, and until the satisfaction of any and all other conditions specified in the Award Agreement applicable to such Restricted Stock. Upon the forfeiture of any Restricted Stock, such forfeited shares shall be transferred to the Company without further acts by the Holder.
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B-9 |
Section 7.5 Issuance of Stock and Stock Certificate(s)
7.5.1 Issuance. As soon as practicable after the Date of Grant of a Restricted Stock Award, the Company shall cause to be issued in the name of the Grantee (and held by the Company, if applicable, under Section 7.4) such number of shares of Common Stock as constitutes the Restricted Stock awarded under the Restricted Stock Award. Each such issuance shall be subject throughout the Restricted Period to the terms, conditions and restrictions contained in the Plan and/or the Award Agreement.
7.5.2 Custody and Registration. Any issuance of Restricted Stock may be evidenced in such manner as the Grantor may deem appropriate, including, without limitation, book-entry registration or issuance of a stock certificate or certificates. In the event any stock certificate is issued in respect of Restricted Stock, such certificate shall be registered in the name of the Grantee and shall bear an appropriate legend referring to the terms, conditions, and restrictions applicable to such Restricted Stock.
Section 7.6 Shareholder Rights
Following registration in the Grantees name, during the Restricted Period, the Grantee shall have the entire beneficial interest in, and all rights and privileges of a shareholder as to, such shares of Common Stock covered by the Restricted Stock Award, including, but not limited to, the right to vote such shares and the right to receive dividends, subject to the restrictions and forfeitures set forth herein. Any shares of Common Stock distributed as a dividend or otherwise with respect to any shares of Restricted Stock as to which the restrictions have not yet lapsed shall be subject to the same restrictions as such Restricted Stock shares.
Section 7.7 Delivery of Shares
Upon the expiration (without a forfeiture) of the Restricted Period or at such earlier time as provided under the Plan, all shares of Restricted Stock shall be released from all restrictions and forfeiture provisions hereunder, any similar restrictions and forfeiture provisions under the Award Agreement applicable to such shares and all other restrictions and forfeiture provisions of the Plan or such Award Agreement. No payment will be required from the Holder upon the delivery of any shares of Restricted Stock, except that any amount necessary to satisfy applicable Federal, state or local tax requirements shall be paid by the Holder in accordance with the requirements of the Plan.
PHANTOM STOCK UNIT AWARDS
The Committee may grant Phantom Stock Unit Awards to such Reporting Persons who are Employees as the Committee may select in its sole discretion. The Committee or the CEO also may grant Phantom Stock Unit Awards in such number as the Committee or the CEO may determine to such Nonreporting Persons who are Employees or Consultants, as the Committee or the CEO may select in its or his, as the case may be, sole discretion; provided, however, such grants shall be subject to any maximum aggregate number of Awards in general and Phantom Stock Unit Awards in particular established by the Committee for grants under the Plan for Nonreporting Persons who are Employees or Consultants as a group. The Board or Committee may grant Phantom Stock Unit Awards to Directors as the Board or Committee may select in its sole discretion. A Phantom Stock Unit represents the right to receive, without payment to the Company, shares of Common Stock, an amount of cash equal to the value of a share of Common Stock on a future date or any combination thereof, as determined by the Grantor.
Section 8.2 Maximum Award to An Individual
No individual shall be granted or receive in any calendar year Phantom Stock Unit Awards representing more than 1,000,000 shares of Common Stock. In addition, a Director shall not be granted any Awards which would exceed the limit applicable under Section 4.4 of the Plan.
Section 8.3 Vesting of Phantom Stock Unit Awards
Phantom Stock Units shall become vested as set forth in the applicable Award Agreement unless otherwise described in the Plan. Except as provided in Article XIII, a Phantom Stock Unit may not become vested before the first anniversary of the Date of Grant of such Phantom Stock Unit.
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Section 8.4 Cash Value of Phantom Stock Unit Payments
The amount payable with respect to each vested Phantom Stock Unit payable in cash shall be an amount determined by multiplying the number of Phantom Stock Units by the Fair Market Value of one share of Common Stock as of the vesting date.
Amounts payable in connection with a Phantom Stock Unit shall be paid to the Holder, as determined by the Grantor and as set forth in the applicable Award Agreement or in accordance with such rules, regulations and procedures as may be adopted by the Grantor but in no event later than two and one-half months following the end of the calendar year in which a restriction lapses or a vesting condition is met.
Section 8.6 Nature of Phantom Stock Units
Phantom Stock Units shall be used solely as a device for the measurement and determination of the amount to be paid on behalf of Grantees as provided in the Plan. Phantom Stock Units shall not constitute or be treated as property or as a trust fund of any kind. All amounts at any time attributable to the Phantom Stock Units shall be and remain the sole property of the Company and all Grantees rights hereunder are limited to the rights to receive cash or shares of Common Stock as provided in the Plan.
OTHER AWARDS
The Committee may grant Other Awards to such Reporting Persons who are Employees as the Committee may select in its sole discretion. The Committee or the CEO also may grant Other Awards to such Nonreporting Persons who are Employees or Consultants as the Committee or the CEO may select in its or his, as the case may be, sole discretion; provided, however, such grants shall be subject to any maximum aggregate amount of Awards in general and Other Awards in particular (if any) established by the Committee for grants under the Plan for Nonreporting Persons who are Employees or Consultants as a group. The Board or Committee may grant Other Awards to such Directors as the Board or Committee may select in its sole discretion. An Other Award may or may not be evidenced by an Award Agreement. Except as provided in Article XIII, an Other Award may not become vested before the first anniversary of the Date of Grant of such Other Award.
Section 9.2 Maximum Award to An Individual
9.2.1 Awards Denominated or Payable with Reference to Common Stock. No individual shall be granted or receive in any calendar year Other Awards denominated or payable in, valued in whole or in part by reference to, or otherwise based on or related to shares of Common Stock (including, without limitation, securities convertible into shares of Common Stock) representing more than 1,000,000 shares of Common Stock. In addition, a Director shall not be granted any Awards which would exceed the limit applicable under Section 4.4 of the Plan.
9.2.2 Awards Denominated or Payable with Reference to Cash. No individual shall be granted or receive in any calendar year Other Awards denominated by or payable in cash representing more than $6,000,000. In addition, a Director shall not be granted any Awards which would exceed the limit applicable under Section 4.4 of the Plan.
Section 9.3 Description of Other Awards
An Other Award may be a grant of a type of equity-based, equity-related, or cash based Award not otherwise described by the terms of the Plan in such amounts and subject to such terms and conditions as determined by the Grantor, from time to time, under the Plan, including but not limited to being subject to Performance Goals. Such Awards may provide for the payment of shares of Common Stock or cash or any combination thereof to a Grantee. The value of a cash- based Other Award shall be determined by the Grantor.
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B-11 |
TERMINATION OF EMPLOYMENT OR CESSATION OF BOARD SERVICE
Section 10.1 Stock Options and SARs
If a Grantee who was an Employee, Director or Consultant, as the case may be, when the Grantee received the Options or SARs ceases to be an Employee, Director or Consultant of the Company and all Subsidiaries for any reason, then the Grantees Options and SARs that are exercisable as of the termination or cessation date shall be administered as follows in accordance with the characterization of the separation. In cases where such termination of employment or cessation of service is a result of: (i) the Grantees death or Disability, the Grantees Options or SARs that are not then exercisable shall thereupon become exercisable and all Options and SARs shall remain exercisable for the balance of their respective terms; (ii) resignation (other than for Retirement in the case of an Employee and, in the case of a Director, other than due to the cessation of services of a Director at the end of his or her term on the Board) by the Grantee, the Grantees Options or SARs that are exercisable as of such termination or cessation date shall be cancelled and forfeited at the end of the 30th day after such date; (iii) termination for Cause by the Company, a Subsidiary, or the Board, all of the Grantees Options and SARs, whether or not then exercisable, shall be cancelled and forfeited as of such termination date; (iv) termination other than for Cause by the Company, a Subsidiary, or the Board, all of the Grantees Options and SARs that are exercisable as of such termination date shall be cancelled and forfeited at the end of the period which is one (1) year after such date or, if earlier, at the end of their respective terms, or (v) Retirement by the Employee or the cessation of services of a Director at the end of his term on the Board, the Grantees Options or SARs that are exercisable as of such date shall be cancelled and forfeited at the end of the period which is three (3) years after such date or, if earlier, at the end of their respective terms; provided, however, that such Options or SARs shall be immediately cancelled and forfeited in the event that the Grantor determines that the Grantee has failed to abide by the terms and conditions of any restrictive covenant that may be set forth in the Grantees Award Agreement.
Section 10.2 Restricted Stock, Phantom Stock Units and Other Awards
If a Grantee who was an Employee, Director or Consultant, as the case may be, when the Grantee received the Restricted Stock, Phantom Stock Units or Other Awards ceases to (i) be employed by the Company and all Subsidiaries or (ii) serve as a Director or Consultant, then all of the Grantees Restricted Stock, Phantom Stock Units or Other Awards that remain subject to restriction or vesting at such time shall be cancelled and forfeited except in cases of such Grantees death or Disability, in which case any remaining restriction or vesting shall thereupon lapse.
Section 10.3 Date of Termination of Employment or Cessation of Service as a Director or Consultant
Termination of employment or cessation of service as a Director or Consultant of a Grantee for any of the reasons enumerated in this Article X shall, for purposes of the Plan, be deemed to have occurred as of the date which is recorded in the ordinary course in the Companys or a Subsidiarys books and records in accordance with the then-prevailing procedures and practices of the Company or the Subsidiary. Unless provided otherwise in an Award Agreement, the employment or cessation of service as a Director or Consultant of a Grantee shall not be deemed to have terminated for purposes of the Plan due to the Grantees transfer to the Company from a Subsidiary, to a Subsidiary from the Company or from one Subsidiary to another in any capacity of Employee, Director or Consultant or due to changes in status as long as the individual remains in the service of the Company or a Subsidiary in any capacity of Employee, Director or Consultant. The employment or cessation of service as a Director or Consultant of a Grantee shall be deemed to have terminated for all purposes of the Plan if such Grantee is employed by or provides services to an entity that ceases to be a Subsidiary of the Company, unless the Committee determines otherwise. With respect to Awards that are deferred compensation under Section 409A of the Code, to the extent necessary to avoid incurring adverse tax consequences under Section 409A of the Code, termination of employment or cessation of service as a Director or Consultant of a Grantee shall, for purposes of the Plan, be deemed to have occurred when a Grantee has a separation from service as defined in the regulations promulgated under Section 409A of the Code.
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Section 10.4 Specified Employee Restriction
Notwithstanding anything in this Plan to the contrary, with respect to any Award that constitutes deferred compensation subject to Section 409A of the Code, to the extent necessary to avoid incurring adverse tax consequences under Section 409A of the Code, any payments (whether in cash, shares of Common Stock or other property) to be made with respect to such Award upon the Holders termination of employment shall be delayed until the first day of the seventh month following his separation from service as defined under Section 409A of the Code, if the Holder is a specified employee within the meaning of Section 409A of the Code (as determined in accordance with the uniform policy adopted by the Committee with respect to all of the arrangements subject to Section 409A of the Code maintained by the Company and its Subsidiaries).
Section 10.5 Immediate Forfeiture; Acceleration
Except as otherwise provided in this Article X or in an Award Agreement or as otherwise determined by the Grantor, once a Grantees employment terminates or service as a Director or Consultant ceases, as the case may be, any Award that is not then exercisable or vested or as to which any restrictions have not lapsed shall be cancelled and forfeited to the Company; provided, however, that the Grantor may, subject to the provisions of Sections 5.3 and 6.2, extend the periods during which Awards may be exercised or provide for acceleration or continuation of the exercise or vesting date or the lapse of restrictions of such Awards to such extent and under such terms and conditions as such Grantor deems appropriate.
Section 10.6 Terms of Award Agreement
The terms of any Award Agreement may address any of the issues provided for in this Article. In the event of a discrepancy between such terms and the terms of this Article, the terms of the Award Agreement shall apply, subject to Section 12.16.
CERTAIN TERMS APPLICABLE TO ALL AWARDS
Section 11.1 Withholding Taxes
The Company and any Subsidiary shall be authorized to withhold from any Award granted or any payment due or transfer made under any Award or under the Plan the amount (in cash, shares of Common Stock, other securities, or other Awards) of withholding taxes due in respect of an Award, its exercise, or any payment or transfer under such Award or under the Plan and to take such other action as may be necessary in the opinion of the Company or a Subsidiary to satisfy statutory withholding obligations for the payment of such taxes. Without limiting the generality of the foregoing, the Committee may, in its sole discretion, permit or require a Grantee to satisfy, in whole or in part, the foregoing tax withholding by (a) the delivery of shares of Common Stock (which, except as otherwise determined by the Committee, are not subject to any pledge or other security interest and that meet such requirements, if any, as the Committee may determine are necessary in order to avoid an accounting earnings charge on account of the use of such shares to satisfy a tax withholding obligation) owned by the Grantee having a Fair Market Value equal to such withholding obligation or (b) having the Company withhold from the number of shares of Common Stock otherwise issuable or deliverable pursuant to the exercise or settlement of the Award (or, in the case of Restricted Stock, returning to the Company from the shares of Common Stock that would otherwise vest) a number of such shares with a Fair Market Value equal to such withholding obligation, but in no event exceeding the maximum statutory tax rates of the Grantees applicable jurisdiction (or such other rate as would not trigger a negative accounting impact), as determined by the Company in its sole discretion.
Section 11.2 Adjustments to Reflect Capital Changes
11.2.1 Recapitalization, etc. In the event that the Committee shall determine that any dividend or other distribution (whether in the form of cash, shares of Common Stock or other securities), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase or exchange of shares of Common Stock, other securities of the Company, issuance of warrants or other rights to purchase shares of Common Stock or other securities of the Company, or other similar corporate transaction or event constitutes an
2021 PROXY STATEMENT |
B-13 |
equity restructuring transaction, as that term is defined in ASC Topic 718, Compensation-Stock Compensation, or otherwise affects the shares of Common Stock, then the Committee shall adjust the following in a manner that is determined by the Committee to be appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan:
11.2.1.1 the number and type of shares of Common Stock or other securities which thereafter may be made the subject of Awards, including the aggregate limits specified in the Plan;
11.2.1.2 the number and type of shares of Common Stock or other securities subject to outstanding Awards;
11.2.1.3 the grant, purchase, SAR Base Amount or Option Price with respect to any Award, or, if deemed appropriate, make provision for a cash payment to the holder of an outstanding Award; and
11.2.1.4 other value determinations applicable to outstanding Awards.
11.2.2 Sale or Reorganization. After any reorganization, merger or consolidation whether or not the Company is the surviving corporation and unless there is a provision in the sale or reorganization agreement to the contrary, each Grantee shall, at no additional cost, be entitled upon any exercise of an Option or receipt of other Award to receive (subject to any required action by shareholders), in lieu of the number of shares of Common Stock receivable or exercisable pursuant to such Award, the number and class of shares of stock or other securities to which such Grantee would have been entitled pursuant to the terms of the reorganization, merger or consolidation if, at the time of such reorganization, merger or consolidation, such Grantee had been the holder of record of a number of shares of stock equal to the number of shares receivable or exercisable pursuant to such Award. Comparable rights shall accrue to each Grantee in the event of successive reorganizations, mergers or consolidations of the character described above. Subject to Section 14.1, in the event of a Change of Control, the Grantor may (a) cancel without consideration any outstanding Awards with an exercise price that is more than the Fair Market Value of Common Stock as of the Change of Control, and (b) in lieu of the substituted shares referenced herein, Grantor may elect to pay Grantee a cash payment equal to the difference between the exercise price for the Award and the Fair Market Value of the Companys Common Stock as of the Change of Control
11.2.3 Options to Purchase Stock of Acquired Companies. After any reorganization, merger or consolidation in which the Company or a Subsidiary shall be a surviving corporation, the Committee may grant substituted options under the provisions of the Plan, pursuant to Section 424 of the Code, replacing old options granted under a plan of another party to the reorganization, merger or consolidation whose stock subject to the old options may no longer be issued following such merger or consolidation. The foregoing adjustments and manner of application of the foregoing provisions shall be determined by the Committee in its sole discretion. Any such adjustments may provide for the elimination of any fractional shares which might otherwise become subject to any Options.
Section 11.3 Failure to Comply with Terms and Conditions
Notwithstanding any other provision of the Plan, any outstanding Awards, including, without limit, any rights of payment or delivery or any other rights of a Holder with respect to any Award shall, unless otherwise determined by the Grantor, be immediately forfeited and cancelled if the Holder:
(i) breaches any term, restriction and/or condition of the Plan, any Award Agreement or any employment, separation or other agreement between the Holder and the Company or its Subsidiaries; or
(ii) while serving as a Director or an Employee, is employed by or serves as a director of a competitor of the Company or its Subsidiaries, or shall be engaged in any activity in competition with the Company or its Subsidiaries; or
(iii) within one (1) year of the Grantees termination of employment or cessation of service with the Company and its Subsidiaries as a Director or Consultant, solicits or assists in soliciting, directly or in any manner, any person employed by the Company or a Subsidiary to leave such employment or recruit, make an offer of employment to, or hire any such person; or
(iv) divulges at any time any confidential information belonging to the Company or any Subsidiary.
The determination of the Grantor as to the occurrence of any of the events specified in this Section 11.3 shall be conclusive and binding upon all persons for all purposes.
Section 11.4 Regulatory Approvals and Listing
The Company shall not be required to issue any certificate or certificates for shares of Common Stock under the Plan prior to (i) obtaining any approval from any governmental agency which the Company shall, in its discretion,
B-14 | PENN NATIONAL GAMING, INC. |
determine to be necessary or advisable, (ii) the admission of such shares to listing on any national securities exchange on which the Companys Common Stock may be listed, and (iii) the completion of any registration or other qualification of such shares of Common Stock under any state or Federal law or ruling or regulations of any governmental body which the Company shall, in its discretion, determine to be necessary or advisable.
Section 11.5 Restrictions Upon Resale of Stock
If the shares of Common Stock that have been issued to a Holder pursuant to the terms of the Plan are not registered under the Securities Act, pursuant to an effective registration statement, such Holder, if the Committee shall deem it advisable, may be required to represent and agree in writing (i) that any such shares acquired by such Holder pursuant to the Plan will not be sold except pursuant to an effective registration statement under the Securities Act, or pursuant to an exemption from registration under the Securities Act and, (ii) that such Holder is acquiring such shares for his own account and not with a view to the distribution thereof.
Section 11.6 Reporting Person Limitation
Notwithstanding any other provision of the Plan, to the extent required to qualify for the exemption provided by Rule 16b-3 under the Act and any successor provision, any Common Stock or other equity security offered under the Plan to a Reporting Person may not be sold for at least six (6) months after the earlier of acquisition of the security or the date of grant of the derivative security, if any, pursuant to which the Common Stock or other equity security was acquired.
ADMINISTRATION OF THE PLAN
The Plan shall be administered by or under the direction of the Committee.
Section 12.2 Committee Actions
Except for matters required by the terms of the Plan to be decided by the Board or the CEO, the Committee shall have full power and authority to interpret and construe the Plan, to prescribe, amend and rescind rules, regulations, policies and practices, to impose such conditions and restrictions on Awards as it deems appropriate and to make all other determinations necessary or desirable in connection with the administration of, or the performance of its responsibilities under, the Plan.
Section 12.3 Designation of Beneficiary
Each Holder may file with the Company a written designation (in a form prescribed by the Committee) of one or more persons as the Beneficiary who shall be entitled to receive the Award, if any, payable under the Plan upon his death. A Holder may from time to time revoke or change his Beneficiary designation without the consent of any prior Beneficiary by filing a new designation with the Company. The last such designation received by the Company shall be controlling; provided, however, that no designation, or change or revocation thereof, shall be effective unless received by the Company prior to the Holders death, and in no event shall it be effective as of a date prior to such receipt. If no such Beneficiary designation is in effect at the time of a Holders death, or if no designated Beneficiary survives the Holder or if such designation conflicts with law, the Holders estate shall be entitled to receive the Award, if any, payable under the Plan upon his death. If the Committee is in doubt as to the right of any person to receive such Award, the Company may retain such Award, without liability for any interest thereon, until the Committee determines the rights thereto, or the Company may pay such Award into any court of appropriate jurisdiction and such payment shall be a complete discharge of the liability of the Company therefore.
Section 12.4 No Right to an Award or to Continued Employment
No Grantee or other person shall have any claim or right to be granted an Award under the Plan. Neither the action of the Company in establishing the Plan, nor any provisions hereof, nor any action taken by the Company, any Subsidiary, the Board, the Committee or the CEO pursuant to such provisions shall be construed as creating in any
2021 PROXY STATEMENT |
B-15 |
employee or class of employees any right with respect to continuation of employment by the Company or any of its Subsidiaries, and they shall not be deemed to interfere in any way with the Companys or any Subsidiarys right to employ, discipline, discharge, terminate, lay off or retire any Grantee, with or without cause, to discipline any employee, or to otherwise affect the Companys or a Subsidiarys right to make employment decisions with respect to any Grantee.
Section 12.5 Discretion of the Grantor
Whenever the terms of the Plan provide for or permit a decision to be made or an action to be taken by a Grantor, such decision may be made or such action taken in the sole and absolute discretion of such Grantor and shall be final, conclusive and binding on all persons for all purposes; provided, however, that the Board may review any decision or action of the Grantor and it may reverse or modify such Award, decision or act as it deems appropriate. The Grantors determinations under the Plan, including, without limitation the determination of any person to receive awards and the amount of such awards, need not be uniform.
Section 12.6 Indemnification and Exculpation
12.6.1 Indemnification. Each person who is or shall have been a member of the Board or the Committee and each director, officer or employee of the Company or any Subsidiary to whom any duty or power related to the administration or interpretation of the Plan may be delegated (each, an Indemnified Person), shall be indemnified and held harmless by the Company against and from any and all loss, cost, liability or expense that may be imposed upon or reasonably incurred by him in connection with or resulting from any claim, action, suit or proceeding to which he may be or become a party or in which he may be or become involved by reason of any action taken or failure to act under the Plan and against and from any and all amounts paid by him in settlement thereof (with the Companys written approval) or paid by him in satisfaction of a judgment in any such action, suit or proceeding, except a judgment in favor of the Company based upon a finding of his bad faith; subject, however, to the condition that upon the institution of any claim, action, suit or proceeding against him, he shall in writing give the Company an opportunity, at its own expense, to handle and defend the same before he undertakes to handle and defend it on his own behalf. The foregoing right of indemnification shall not be exclusive of, and shall be in addition to, any other right to which such person may be entitled under the Companys charter or bylaws, as a matter of law or otherwise, or any power that the Company may have to indemnify him or hold him harmless.
12.6.2 Exculpation. No Indemnified Person shall be personally liable by reason of any contract or other instrument executed by him or on his behalf in his capacity as an Indemnified Person hereunder, nor for any mistake of judgment made in good faith, unless otherwise provided by law. Each Indemnified Person shall be fully justified in relying or acting upon in good faith any information furnished in connection with the administration of the Plan by any appropriate person or persons other than himself. In no event shall any Indemnified Person be liable for any determination made or other action taken or any omission to act in reliance upon such report or information, for any action (including the furnishing of information) taken or any failure to act, if in good faith.
The Plan is intended to constitute an unfunded, long-term incentive compensation plan for certain selected Employees and Directors. No special or separate fund shall be established and no segregation of assets shall be made to assure payment of such amounts. The Company may, but shall not be obligated to, acquire shares of its Common Stock from time to time in anticipation of its obligations under the Plan, but no Grantee shall have any right in or against any shares of stock so acquired. All such stock shall constitute general assets of the Company and may be disposed of by the Company at such time and for such purposes as it may deem appropriate. No obligation or liability of the Company to any Grantee with respect to any right to receive a distribution or payment under the Plan shall be deemed to be secured by any pledge or other encumbrance on any property of the Company.
Section 12.8 Inalienability of Rights and Interests
The rights and interests of a Holder under the Plan are personal to the Holder and to any person or persons who may become entitled to distribution or payments under the Plan by reason of death of the Holder, and the rights and interests of the Holder or any such person (including, without limitation, any Award distributable or payable under the Plan) shall not be subject in any manner to alienation, sale, transfer, assignment, pledge, encumbrance or charge, and any such attempted action shall be void and no such benefit or interest shall be in any manner liable for
B-16 | PENN NATIONAL GAMING, INC. |
or subject to debts, contracts, liabilities, engagements or torts of any Holder, provided that transfers pursuant to a qualified domestic relations order shall be allowable. If any Holder shall attempt to alienate, sell, transfer, assign, pledge, encumber or charge any of his rights or interests under the Plan, (including without limitation, any Award payable under the Plan) then the Committee may hold or apply such benefit or any part thereof to or for the benefit of such Holder in such manner and in such proportions as the Committee may consider proper. Notwithstanding the foregoing, the Holder, subject to the approval of the Company may elect to irrevocably transfer some or all of an Award to a family member. For this purpose, a family member shall refer to one or more of the Holders spouse, children or grandchildren, or to a trust established solely for the benefit of, or to a partnership whose partners are, the Holders spouse, children and grandchildren; provided, however, that:
(i) the Award, once transferred, may not again be transferred except by will or by the laws of descent and distribution;
(ii) the Award, once transferred, shall remain subject to the same terms and conditions of the Award in effect before the transfer and the transferee of the Award (the Transferee) must comply with all other provisions of the Award; and
(iii) the Holder receives no consideration for such transfer. No transferred Award shall be exercisable following a transfer, as provided for herein, unless the Committee receives written notice from the Holder in a form and manner satisfactory to the Committee, in its sole discretion, to the effect that a transfer of the Award has occurred and the notice identifies the Award transferred, the identity of the Transferee and his relationship to the Holder.
Section 12.9 Awards Not Includable for Benefit Purposes
Except as otherwise set forth in any applicable 401(k) plan, payments received by a Grantee pursuant to the provisions of the Plan shall not be included in the determination of benefits under any pension, group insurance or other benefit plan applicable to the Grantee which are maintained by the Company or any of its Subsidiaries, except as may be determined by the Committee.
Section 12.10 No Issuance of Fractional Shares
The Company shall not be required to deliver any fractional share of Common Stock but, as determined by the Committee, may pay a cash amount to the Holder in lieu thereof, except as otherwise provided in the Plan, equal to the Fair Market Value (determined as of an appropriate date determined by the Committee) of such fractional share.
Section 12.11 Modification for International Grantees
Notwithstanding any provision to the contrary, the Committee may incorporate such provisions, or make such modifications or amendments in Award Agreements of Grantees who reside or are employed outside of the United States of America, or who are citizens of a country other than the United States of America, as the Committee deems necessary or appropriate to accomplish the purposes of the Plan with respect to such Grantee in light of differences in applicable law, tax policies or customs, and to ascertain compliance with all applicable laws.
Section 12.12 Leaves of Absence
The Committee shall be entitled to make such rules, regulations and determinations as it deems appropriate under the Plan in respect of any leave of absence taken by the recipient of any Award. Without limiting the generality of the foregoing, the Grantor shall be entitled to determine (a) whether or not any such leave of absence shall constitute a termination of employment within the meaning of the Plan and, (b) the impact, if any, of any such leave of absence on awards under the Plan theretofore made to any recipient who takes such leave of absence. Notwithstanding the foregoing, with respect to Awards that are deferred compensation under Section 409A of the Code, to the extent necessary to avoid incurring adverse tax consequences under Section 409A of the Code, any leave of absence taken by the recipient shall constitute a termination of employment within the meaning of the Plan when the recipient has a separation from service as defined in Section 409A of the Code and the regulations thereunder.
12.13.1 Communications by the Grantor. All notices, statements, reports and other communications made, delivered or transmitted to a Holder or other person under the Plan shall be deemed to have been duly given, made
2021 PROXY STATEMENT |
B-17 |
or transmitted, when sent electronically to a Company or Subsidiary e-mail address, when delivered to, or when mailed by first-class mail, postage prepaid and addressed to, such Holder or other person at his address last appearing on the records of the Company.
12.13.2 Communications by the Directors, Consultants, Employees, and Others. All elections, designations, requests, notices, instructions and other communications made, delivered or transmitted by the Company, a Subsidiary, Grantee, Beneficiary or other person to the Committee required or permitted under the Plan shall be transmitted by any means authorized by the Committee or shall be mailed by first-class mail or delivered to the Companys principal office to the attention of the Companys Secretary or such other location as may be specified by the Committee, and shall be deemed to have been given and delivered only upon actual receipt thereof by the Committee at such location.
Section 12.14 Parties in Interest
The provisions of the Plan and the terms and conditions of any Award shall, in accordance with their terms, be binding upon, and inure to the benefit of, all successors of each Grantee, including, without limitation, such Grantees estate and the executors, administrators, or trustees thereof, heirs and legatees, and any receiver, trustee in bankruptcy or representative of creditors of such Grantee. The obligations of the Company under the Plan shall be binding upon the Company and its successors and assigns.
Whenever possible, each provision in the Plan and every Award at any time granted under the Plan shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of the Plan or any Award at any time granted under the Plan shall be held to be prohibited by or invalid under applicable law, then (a) such provision shall be deemed amended to accomplish the objectives of the provision as originally written to the fullest extent permitted by law, and (b) all other provisions of the Plan and every other Award at any time granted under the Plan shall remain in full force and effect.
Section 12.16 Compliance with Laws
The Plan and the grant of Awards shall be subject to all applicable Federal and state laws, rules and regulations and to such approvals by any government or regulatory agency as may be required. It is intended that the Plan be applied and administered in compliance with Rule 16b-3. If any provision of the Plan would be in violation of Rule 16b-3 if applied as written, such provision shall not have effect as written and shall be given effect so as to comply with Rule 16b-3, as determined by the Committee. The Board is authorized to amend the Plan and to make any such modifications to Award Agreements to comply with Rule 16b-3, and to make any such other amendments or modifications as it deems necessary or appropriate to better accomplish the purposes of the Plan in light of any amendments made to Rule 16b-3.
Section 12.17 No Strict Construction
No rule of strict construction shall be implied against the Company, the Committee, the CEO or any other person in the interpretation of any of the terms of the Plan, any Award granted under the Plan or any rule or procedure established by the Committee or the Board.
This document contains all of the provisions of the Plan and no provisions may be waived, modified or otherwise altered except in a writing adopted by the Board.
All questions pertaining to validity, construction and administration of the Plan and the rights of all persons hereunder shall be determined with reference to, and the provisions of the Plan shall be governed by and shall be construed in conformity with, the internal laws of the Commonwealth of Pennsylvania without regard to any of its conflict of laws principles.
B-18 | PENN NATIONAL GAMING, INC. |
Notwithstanding anything to the contrary herein, all outstanding Awards constitute Incentive Compensation as defined in the Companys Clawback Policy and pursuant to which the Committee may cancel any Award to the extent that the terms of the Clawback Policy so provide.
CHANGE OF CONTROL
Section 13.1 Impact of Change of Control
Subject to Section 11.2.2, in the event of a Change of Control, upon a Grantees termination of employment by the Grantees employer without Cause, or by the Grantee for Good Reason (as defined below), within one (1) year following the Change of Control (or on the date of the Change of Control), then (a) Options (with an exercise price that is less than the Fair Market Value of the Companys Common Stock at the time of the Change in Control) and SARs shall vest and become fully exercisable, (b) restrictions on Restricted Stock Awards and Phantom Stock Unit Awards shall lapse and such Awards shall become fully vested, (c) any other Awards with vesting or other provisions tied to achievement of performance goals shall be considered to be vested (and, as applicable, shall be earned and paid) at their target levels or, if greater, the actual level of achievement as of the date of the Change of Control, annualized by the entire performance period, if appropriate, (d) any Awards payable in cash shall be paid within thirty (30) days after such termination of employment to all Grantees who have been granted such an Award, and (e) such other additional benefits, changes or adjustments as the Committee deems appropriate and fair shall apply, subject in each case to any terms and conditions contained in the Award Agreement evidencing such Award. For purposes of this Section 13.1, Good Reason shall mean the occurrence of any of the following events that the Company fails to cure within ten (10) days after receiving written notice thereof from the Grantee (which notice must be delivered within thirty (30) days of the Grantee becoming aware of the applicable event or circumstance):
(i) assignment to the Grantee of any duties inconsistent in any material respect with the Grantees position (including status, titles, and reporting requirements), authority, duties or responsibilities or inconsistent with the Grantees legal or fiduciary obligations; (ii) any reduction in the Grantees compensation or substantial reduction in the Grantees benefits taken as a whole; (iii) any travel requirements materially greater than the Grantees travel requirements prior to the Change of Control; (iv) any office relocation of greater than 50 miles from the Grantees then current office; or (v) any breach of any material term of any employment agreement between the Company and the Grantee.
Section 13.2 Assumption Upon Change of Control
Notwithstanding the foregoing, if in the event of a Change of Control, the successor company does not agree to assume or substitute for an Award, or the Awards will otherwise not remain outstanding after the Change of Control, then, in lieu of such outstanding assumed or substituted Award, the holder shall be entitled to the benefits set forth in the first sentence of Section 13.1 as of the date of the Change of Control, to the same extent as if the holders employment or service as a Director or Consultant had been terminated by the Company without Cause as of the date of the Change of Control. For the purposes of this Section 13.2, an Award shall be considered assumed or substituted for if following the Change of Control the award confers the right to purchase or receive, for each share subject to the Award immediately prior to the Change of Control, the consideration (whether stock, cash or other securities or property) received in the transaction constituting a Change of Control by holders of shares for each share held on the effective date of such transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding shares); provided, however, that if such consideration received in the transaction constituting a Change of Control is not solely common stock of the successor company, the Committee may, with the consent of the successor company, provide that the consideration to be received upon the exercise or vesting of any Award, for each share subject thereto, will be solely common stock of the successor company substantially equal in fair market value to the per share consideration received by holders of Shares in the transaction constituting a Change of Control. The determination of such substantial equality of value or consideration shall be made by the Committee before the Change of Control in its sole discretion and its determination shall be conclusive and binding. Any assumption or substitution of the
2021 PROXY STATEMENT |
B-19 |
Incentive Stock Option will be made in a manner that will not be considered a modification under the provisions of Section 424(h)(3) of the Code.
AMENDMENT AND TERMINATION
Section 14.1 Amendment; No Repricing
The Board with respect to the Plan, and the Grantor with respect to any Award Agreement, reserve the right at any time to modify, alter or amend, in whole or in part, any or all of the provisions of the Plan or any Award Agreement to any extent and in any manner that it or he, as the case may be, may deem advisable, and no consent or approval by the shareholders of the Company, by any Grantee or Beneficiary, or by any other person, committee or entity of any kind shall be required to make any modification, alteration or amendment; provided, however, that the Board shall not, without the requisite affirmative approval of the shareholders of the Company, make any modification, alteration or amendment that requires shareholders approval under any applicable law, the Code or stock exchange requirements. No modification, alteration or amendment of the Plan or any Award Agreement may, without the consent of the Grantee (or the Grantees Beneficiaries in case of the Grantees death) to whom any Award shall theretofore have been granted under the Plan, adversely affect any material right of such Grantee under such Award, except in accordance with the provisions of the Plan and/or any Award Agreement applicable to any such Award. Subject to the provisions of this Section 14.1, any modification, alteration or amendment of any provisions of the Plan may be made retroactively. Except as otherwise provided in Section 11.2 hereof, neither the Committee nor the Board shall (a) reduce the SAR Base Amount or Option Price, as applicable, of Stock Options or SARs previously awarded to any Grantee, (b) cancel, surrender, replace or otherwise exchange any outstanding Stock Option or SAR where the Fair Market Value of the Common Stock underlying such Stock Option or SAR is less than its Option Price for a new Stock Option or SAR, another Award, cash, shares of Common Stock or other securities or (c) take any other action that is considered a repricing for purposes of the shareholder approval rules of the applicable securities exchange or inter-dealer quotation system on which the shares of Common Stock are listed or quoted, without the requisite prior affirmative approval of the shareholders of the Company.
Section 14.2 Suspension or Termination
The Board reserves the right at any time to suspend or terminate, in whole or in part, any or all of the provisions of the Plan for any reason and without the consent of or approval by the shareholders of the Company, any Holder or any other person, committee or entity of any kind; provided, however, that no such suspension or termination shall adversely affect any material right or obligation with respect to any Award theretofore made except as herein otherwise provided.
SECTION 409A
Notwithstanding any provision of this Plan to the contrary, all Awards made under this Plan are intended to be exempt from or, in the alternative, comply with Section 409A of the Code and the interpretive guidance thereunder, including the exceptions for stock rights and short-term deferrals. The Plan shall be construed and interpreted in accordance with such intent. Each payment under an Award shall be treated as a separate payment for purposes of Section 409A of the Code.
EFFECTIVE DATE AND TERM OF THE PLAN
The Plan shall become effective on the Effective Date if it is approved by the shareholders of the Company. No Award shall be granted under the Plan after the date specified in Section 4.1.4. The Plan will continue in effect for existing Awards as long as any such Awards are outstanding.
B-20 | PENN NATIONAL GAMING, INC. |
APPENDIX C
RECONCILATION OF NET INCOME (LOSS) TO ADJUSTED EBITDA, AFTER LEASE PAYMENTS
For the year ended (dollars in millions) | ||
Net loss |
$(669.1) | |
Income tax benefit |
(165.1) | |
Loss on early extinguishment of debt |
1.2 | |
Income from unconsolidated affiliates |
(13.8) | |
Interest expense, net |
543.2 | |
Other income |
(106.6) | |
Operating loss |
(410.2) | |
Stock-based compensation |
14.5 | |
Cash-settled stock-based award variance |
67.2 | |
Gain on disposal of assets |
(29.2) | |
Contingent purchase price |
(1.1) | |
Pre-opening and acquisition costs |
11.8 | |
Depreciation and amortization |
366.7 | |
Impairment losses |
623.4 | |
Insurance recoveries, net of deductible charges |
(0.1) | |
Income from unconsolidated affiliates |
13.8 | |
Non-operating items of equity method investments |
4.7 | |
Other expenses |
13.5 | |
Adjusted EBITDA |
675.0 | |
Rent expense associated with triple net operating leases |
419.8 | |
Adjusted EBITDAR |
1,094.8 | |
Less: Lease Payments |
(891.1) | |
Adjusted EBITDA, after Lease Payments |
$203.7 |
This Adjusted EBITDA, after Lease Payments amount reflects adjustments from the Companys Adjusted EBITDAR to include the impact of rent payments made to our landlords under our triple net leases and includes $337.5 million of rent credits utilized.
2021 PROXY STATEMENT | C-1 |
TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS:
D43762-P54405 KEEP THIS PORTION FOR YOUR RECORDS
DETACH AND RETURN THIS PORTION ONLY
THIS PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED.
PENN NATIONAL GAMING, INC. | For | Withhold | For All | To withhold authority to vote for any individual | ||||||||||||||||
All | All |
Except | nominee(s), mark For All Except and write the | |||||||||||||||||
The Board of Directors recommends you vote FOR the following: |
number(s) of the nominee(s) on the line below. | |||||||||||||||||||
1. Election of two Class I directors to serve until the 2024 |
☐ | ☐ | ☐ |
|
||||||||||||||||
Annual Meeting of Shareholders and until their respective successors are elected and qualified to serve. |
Nominees: | ||
01) | David A. Handler | |
02) | John M. Jacquemin |
The Board of Directors recommends you vote FOR proposals 2, 3, 4, and 5. | For | Against | Abstain | |||||||
2. | Approval of the Companys Second Amended and Restated Articles of Incorporation to increase the number of authorized shares of common stock from 200,000,000 to 400,000,000. | ☐ | ☐ | ☐ | ||||||
3. | Approval of the Companys Amended and Restated 2018 Long Term Incentive Compensation Plan. | ☐ | ☐ | ☐ | ||||||
4. | Ratification of the selection of Deloitte & Touche LLP as the Companys independent registered public accounting firm for the 2021 fiscal year. | ☐ | ☐ | ☐ | ||||||
5. | Approval, on an advisory basis, of the compensation paid to the Companys named executive officers. | ☐ | ☐ | ☐ | ||||||
NOTE: At their discretion, the named proxies are authorized to consider and vote upon such other business as may properly come before the meeting or any adjournment or postponement thereof. |
Please sign exactly as your name(s) appear(s) hereon. When signing as attorney, executor, administrator, or other fiduciary, please give full title as such. Joint owners should each sign personally. All holders must sign. If a corporation or partnership, please sign in full corporate or partnership name by authorized officer. |
Signature [PLEASE SIGN WITHIN BOX] | Date | Signature (Joint Owners) | Date |
Important Notice Regarding the Availability of Proxy Materials for the Annual Meeting:
The Notice and Proxy Statement and Annual Report are available at www.proxyvote.com.
D43763-P54405
PENN NATIONAL GAMING, INC.
ANNUAL MEETING OF SHAREHOLDERS, JUNE 9, 2021
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The shareholder(s) whose signature(s) appear(s) on the reverse side of this Proxy Form hereby appoint(s) David A. Handler and Barbara Shattuck Kohn, and each of them, as attorneys and proxies, with full power of substitution, to vote on behalf of the shareholder(s) all of the shares of Common Stock of Penn National Gaming, Inc. (the Company), which the shareholders would be entitled to vote if virtually present at the Annual Meeting of Shareholders thereof to be held on June 9, 2021 and at any and all postponements and adjournments thereof, upon the matters listed on the reverse side. Such meeting will be held via live webcast on the Internet at www.virtualshareholdermeeting.com/PENN2021.
WHEN PROPERLY EXECUTED, THIS PROXY WILL BE VOTED AS DIRECTED HEREIN. WHERE A VOTE IS NOT SPECIFIED, THE PROXIES WILL VOTE SHARES REPRESENTED BY THIS PROXY FOR ALL NOMINEES FOR DIRECTOR, FOR PROPOSALS 2, 3, 4, AND 5 AND WILL VOTE IN THEIR DISCRETION ON SUCH OTHER MATTERS THAT MAY PROPERLY COME BEFORE THE MEETING AND AT ANY ADJOURNMENT OF SUCH MEETING.
PLEASE DATE AND SIGN ON THE OTHER SIDE AND RETURN THIS PROXY PROMPTLY.