Exhibit 10.1


 


AMENDMENT TO


 


CERTAIN AGREEMENTS


 


BETWEEN


 


DOVER DOWNS GAMING & ENTERTAINMENT, INC.


 


AND


 


SELECTED EXECUTIVES


 


AND DIRECTORS


 


WHEREAS, Dover Downs
Gaming & Entertainment, Inc. (the “Company”) has heretofore
entered into certain Non-Compete or Employment and Non-Compete Agreements with
the following executives and directors (each, an “Individual”):  Henry B. Tippie dated as of June 16,
2004; Denis McGlynn dated as of February 13, 2006; Timothy R. Horne dated
as of February 13, 2006; Klaus M. Belohoubek dated as of February 13,
2006; and Edward J. Sutor dated as of February 13, 2006, providing for
payment of a Change in Control Fee on the date of a Change in Control and
certain other benefits, and for executives only, the provision of certain payments
and benefits during a specified “Extension Period” following a Change in
Control, including in the event the executive’s employment is terminated during
the Extension Period (each, an “Agreement”); and


 


WHEREAS, the Agreements
were partially in consideration of certain restrictive covenants regarding Individual’s
activities following a Change in Control; and


 


WHEREAS, the Company
desires to amend each of the Agreements, with the concurrence of each of the Individuals
who are parties to such Agreements, effective as of January 1, 2008, to
reflect the requirements of section 409A of the Internal Revenue Code (the “Code’)
and the regulations thereunder.


 


NOW THEREFORE, in
consideration of the promises and mutual covenants herein, the Company and each
of the Individuals, with respect to his Agreement, hereto agree as follows:


 


1.             Notwithstanding the Agreement’s definition of a “Change
in Control”, an event shall not constitute a Change in Control for purposes of
the Agreement unless and until it also satisfies the definition of a change in
control under Treas. Reg. § 1.409A-3(i)(5) (or such other applicable
regulations or guidance issued by the Internal Revenue Service pursuant to Code
section 409A).


 


2.             The Individual’s “Date of Termination” for purposes of
his Agreement means the date on which the Individual has a “separation from
service” with the Company within the meaning of Treasury Reg. § 1.409A-1(h) or
any successor thereto.


 

















 


3.             Any payment or reimbursement by the Company of the Individual’s
costs or expenses, including without limitation fees and expenses of the
Independent Tax Counsel engaged with respect to the determination of the “Parachute
Gross-Up”, shall be made promptly upon such evidence of costs and expenses
incurred, or fees and expenses paid, as the Company may reasonably require, but
in no event later than the end of the calendar year following the calendar year
in which the cost, fee or expense was incurred. The amount of such cost, fee or
expense eligible for payment/reimbursement in any calendar year shall not
affect the costs, fees and expenses eligible for payment/reimbursement in any
other calendar year, and shall not be subject to liquidation or exchange
for another benefit.


 


4.             With respect to the
Parachute Gross-up payment or payments on account of possible excise tax under Section 4999
of the Code described in Section 3 of each Agreement, (i) any initial
Parachute Gross-up payment shall be made not later than the time of the
corresponding payment or benefit giving rise to the underlying Section 4999
excise tax, even if the payment of the excise tax is not required under the
Code until a later time, and (ii) any payment of an Underpayment (as
described in Section 3 of each Agreement) by the Company, or reimbursement
to the Executive of taxes relating to the Underpayment, shall be made as soon
as practicable in accordance with the terms of the Agreement but in no event later
than the end of the calendar year following the calendar year in which the
Executive remits the taxes relating to the Underpayment.”


 


5.             With respect to each Employment
and Non-Compete Agreement, (a) the commitment to extend welfare benefits set forth in Section 3(d) during
the Extension Period following a Change in Control cannot be liquidated or
exchanged for another benefit, and (b) the lump sum benefit described in Section 3(c)(iii) payable
in the event the executive’s employment is terminated is revised such that the
payment shall be made upon the Change in Control.


 


6.             In the event that Individual is a Specified Employee
(see paragraph 7 of this Amendment) as of his Date of Termination from the
Company, and notwithstanding anything in the Agreement to the contrary, any amount
of benefit (a) to which he is entitled (whether under his Agreement or
otherwise) by reason of his separation from service but before the six-month
anniversary of his Date of Termination and (b) which, if so paid or
provided, would constitute payment of a “deferral of compensation” within the
meaning of section 409A of the Code that would not comply with section 409A(a)(2) of
the Code (or any successor thereto) shall instead be paid or provided on the
Delayed Payment Date. For purposes of each Individual’s Agreement, amounts
payable under his Agreement shall be deemed not to be a “deferral of
compensation” subject to Code section 409A to the extent provided in the
exceptions in Treasury Regulation Sections 1.409A-1(b)(4) (“short term
deferrals”) and (b)(9) (“separation pay plan”), and other applicable
provisions of Treasury Regulation Sections 1.409A-1 through A-6 (or any
successor to any of the foregoing provisions). To the extent that any provision
of an Agreement would, if enforced as written, cause adverse tax consequences
to either Individual or the Company under section 409A of the Code, the parties
shall work together in good faith to seek to avoid, or minimize, such
consequences.


 


2

















 


7.             For purposes of this Amendment and each
Agreement,


 


(a)           a “Specified Employee” shall mean an
individual who, on his Date of Termination with the Company or a successor, is
a “specified employee” within the meaning of section 409A(a)(2)(B)(i) of
the Code for whom a payment due to a separation from service must be delayed in
accordance with section 409A(a)(2)(B)(i) of the Code and Treas. Reg. §
1.409A-1(c)(3)(v). Individual’s status as a Specified Employee shall be
determined by the Company in accordance with procedures consistent with the
requirements of Treas. Reg. § 1.409A-1(i) or other applicable regulations
or guidance issued by the Internal Revenue Service pursuant to Code section
409A or 416(i); and


 


(b)           the “Delayed Payment Date” shall mean the date which
is six (6) months following the Individual’s Date of Termination.


 


IN WITNESS WHEREOF, the
Company through its officer duly authorized, and each of the undersigned Individuals,
each intending to be legally bound, have duly executed and delivered this
Amendment to his respective Agreement, to be effective as of January 1,
2008.


 


 


	
   

  	
  DOVER DOWNS
  GAMING & ENTERTAINMENT, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
    /s/ Klaus
  M. Belohoubek

  
	
   

  	
  Its:
  Sr. Vice President - General Counsel

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
    /s/ Henry
  B. Tippie

  
	
   

  	
  Henry B. Tippie

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
    /s/ Denis
  McGlynn

  
	
   

  	
  Denis McGlynn

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
    /s/ Timothy
  R. Horne

  
	
   

  	
  Timothy R. Horne

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
    /s/ Klaus
  M. Belohoubek

  
	
   

  	
  Klaus M. Belohoubek

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
    /s/ Edward
  J. Sutor

  
	
   

  	
  Edward J. Sutor

  



 


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