EXHIBIT 10.1


 


AMENDMENT TO 2004 STOCK INCENTIVE PLAN


 


Section 10.14 of the 2004
Stock Incentive Plan is amended and restated in its entirety to read as
follows:


 


10.14.      Change in Control. (a) Except as
otherwise provided in the applicable stock option agreement or restricted stock
agreement, upon a Change in Control, as defined in paragraph (b) of this Section 10.14,
any stock option or restricted stock award granted to any Participant under
this Plan that would have become vested upon continued employment by the
Participant shall immediately vest in full and become exercisable,
notwithstanding the discretion of the Committee pursuant to Section 10.12.


 


(b) For
purposes of this Section 10.14, “Change in Control” means:


 


(1)  The
acquisition by any person, entity or “group”, within the meaning of Section 13(d) (3) or
14(d) (2) of the Securities Exchange Act of 1934 (the “Exchange Act”)
(excluding, for this purpose, (A) the Company, (B) any employee
benefit plan of the Company or its subsidiaries which acquires beneficial
ownership of voting securities of the Company or (C) Lyle Berman, Bradley
Berman, Bradley Berman Irrevocable Trust, Julie Berman Irrevocable Trust,
Jessie Lynn Berman Irrevocable Trust, Amy Berman Irrevocable Trust or Steven
Lipscomb, any combination of such persons or any group that includes any of
such persons) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of more than 50% of either the then
outstanding shares of common stock or the combined voting power of the Company’s
then outstanding voting securities entitled to vote generally in the election
of directors; or


 


(2) 
Individuals who, as of November 25, 2008, constitute the Board (the “Incumbent
Board”) cease for any reason to constitute at least a majority of the Board,
provided that any person becoming a director subsequent to November 25,
2008 whose election, or nomination for election by the Company’s stockholders,
was approved by a vote of at least a majority of the directors then comprising
the Incumbent Board (other than an election or nomination of an individual
whose initial assumption of office is in connection with an actual or
threatened election contest relating to the election of the Directors of the
Company, as such terms are used in Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act) shall be, for purposes of this Agreement,
considered as though such person were a member of the Incumbent Board; or


 


(3) 
Approval by the stockholders of the Company of (A) a reorganization,
merger or consolidation, in each case, with respect to which persons who were
the stockholders of the Company immediately prior to such reorganization,
merger or consolidation do not, immediately thereafter, own more than 50% of
the combined voting power of the reorganized, merged or consolidated company’s
then outstanding voting securities entitled to vote generally in the election of directors of the
reorganized, merged or 


 

















 


consolidated company, or (B) a
liquidation or dissolution of the Company or (C) the sale of all or
substantially all of the assets of the Company.