**Exhibit 10.57**

 

 

 

PENINSULA GAMING PARTNERS, LLC

AMENDED AND RESTATED

2004 INCENTIVE UNIT PLAN

 

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PENINSULA GAMING PARTNERSLLCAMENDED AND RESTATED2004 INCENTIVE UNIT PLAN

SECTION1GENERAL

1.1           Purpose.  The Peninsula Gaming Partners LLC Amended andRestated 2004 Incentive Unit Plan (the “Plan”) has been established byPeninsula Gaming Partners, LLC (the “Company”) to (i) attract and retainPersons eligible to participate in the Plan; (ii) motivate Participants, bymeans of appropriate incentives, to achieve long-range goals; (iii) provideincentive compensation opportunities that are competitive with those of othersimilar companies; (iv) compensate Participants for services or otherconsideration provided, or to be provided, to the Company and (v) furtheralign Participants’ interests with those of the Company’s owners throughcompensation that is based on a profits interest in the Company; and therebypromote the long-term financial interest of the Company, including the growthin value of the Company.

1.2           Participation.  Subject to the terms and conditions of thePlan, the Executive Committee shall determine and designate, from time to time,from among the Eligible Individuals identified from time to time by the Board,those persons who will be granted one or more Awards under the Plan, andthereby become “Participants” in the Plan. The Board may allow an Eligible Participant to designate an entity tohold Covered Units and become a Participant in the Plan, so long as theEligible Participant (the “Principal” in such case) owns and controls suchentity.  If the Board allows an EligibleIndividual to designate an entity as the Participant, then such EligibleIndividual shall be required to provide the name of such entity and its federaltax identification number to the Company as a prerequisite to participation,and include in the constituent documents for such entity provisions required bythis Plan and related Award Agreement.

1.3           Operation,Administration, and Definitions. The operation and administration of the Plan, including the Awards madeunder the Plan, shall be subject to the provisions of Section 3(relating to operation and administration). Capitalized terms used in the Plan shall be defined as set forth in thePlan (including the definition provisions of Section 7).

1.4           Amendment and Restatement.  The terms, provisions, covenants and conditionsof the 2004 Incentive Unit Plan, effective as of June 16, 2004, are amended,restated and superseded in their entirety by the Plan.

SECTION2NON-VOTING COMMON UNIT AWARDS

2.1           Non-VotingCommon Unit Award. Participants in the Plan shall receive Awards to the extent determinedby the Executive Committee, subject to approval by the Board.  A Non-Voting Common Unit Award shall be aright to “Non-Voting Common Units,” subject to such terms, restrictions andcontingencies as set forth in this Plan and by the Executive Committee, subjectto approval of the Board.

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SECTION3OPERATION AND ADMINISTRATION

3.1           EffectiveDate.  The Plan shall beeffective as of February 25, 2005 (the “Effective Date”).  The Plan shall be unlimited in duration and,in the event of Plan termination, shall remain in effect as long as any Awardsunder it are outstanding.

3.2           Non-Voting Common Units Subject to Plan.  The aggregate number of Non-Voting CommonUnits available under the Plan (and LLC Agreement) shall initially be Two HundredTen Thousand Eight Hundred Seventy-One and Fifty-Three One Hundreths(210,871.53) which amount shall be adjusted as necessary from time to time toequal a maximum aggregate amount representing 12% of the outstanding Units on afully diluted basis after giving effect to any additional issuancesthereunder.  If any Non-Voting CommonUnits covered by an Award are forfeited and lawfully canceled, such Non-VotingCommon Units shall not be deemed to have been awarded for purposes ofdetermining the maximum number of Non-Voting Common Units available under thePlan.

3.3           Grant ofAwards.  The ExecutiveCommittee, subject to Board approval, shall establish, from time to time fromamong the Eligible Individuals, those persons eligible to become Participantsand shall determine the maximum number of Non-Voting Common Units that may begranted to any such Participant.

3.4           Distributions.  A Participant shall become eligible toreceive distributions with respect to Covered Units in accordance with theterms of the LLC Agreement.

3.5           Transferability.  Except as otherwise provided in an AwardAgreement, and subject to the terms and restrictions of the LLC Agreement,Non-Voting Common Units subject to an Award are not transferable by will or bythe laws of descent and distribution. With the approval of the Board, a Participant may transfer Covered Unitsto a revocable living trust for the benefit of the Participant  (with the trustee of such revocable livingtrust being obligated under the terms of such trust to hold such Units subjectto the terms and provisions of the Plan, the Award Agreement and the LLCAgreement).

3.6           AgreementWith Company.  An Award underthe Plan shall be subject to such terms and conditions, not inconsistent withthe Plan or the LLC Agreement, as the Executive Committee, subject to approvalof the Board, shall, in its sole discretion, prescribe.  The terms and conditions of any Award to anyParticipant shall be reflected in an Award Agreement, executed by theParticipant. A Participant shall also be required to execute a counterpart tothe LLC Agreement agreeing to be bound by all of the terms thereof.

3.7           Actionby Company or Subsidiary.  Anyaction required or permitted to be taken by the Company or any Subsidiary underthis Plan or an Award Agreement shall be by action of the Executive Committee,subject to approval of the Board, (except to the extent prohibited byapplicable law)  and shall be valid andbinding on the Company and each Subsidiary of the Company.

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3.8           Genderand Number.  Where the contextadmits, words in any gender shall include any other gender, words in thesingular shall include the plural and the plural shall include the singular.

3.9           Limitation of Implied Rights.

(a)                                  Nothingcontained in the Plan shall constitute a guarantee that the assets of theCompany or any Subsidiary shall be sufficient to pay any benefits to anyPerson.

(b)                                 ThePlan does not constitute a contract of employment, and selection as aParticipant will not give any participating employee, Consultant, other individualthe right to be retained in the employ of the Company or any Subsidiary of theCompany or the right to continue to provide services to the Company or anySubsidiary of the Company.

3.10         Evidence.  Evidence required of anyone under the Planmay be by certificate, affidavit, document or other information which theperson acting on it considers pertinent and reliable, and signed, made orpresented by the proper party or parties.

SECTION 4CHANGE OF CONTROL

In an Award Agreement, the Board shall have the rightto provide for the effect of a Change of Control or Recapitalization upon anAward under this Plan.

SECTION 5ADMINISTRATION OF THE PLAN

5.1           Administration.  The authority to control and manage theoperation of the Plan, and the authority to administer the Plan shall be vestedin the Executive Committee, all in accordance with the provisions of this Section5.

5.2           Powersof the Executive Committee. The Executive Committee’s authority to control, manage and administerthe Plan shall be as follows:

(a)                                  Subjectto the provisions of the Plan and the LLC Agreement, the Executive Committeewill have the authority and discretion to (i) select from among the EligibleIndividuals those persons who shall be eligible to receive Awards, (ii) todetermine the maximum number of Non-Voting Common Units covered by each of theAwards, (iii) to establish the terms, conditions, restrictions, and otherprovisions of such Awards under an Award Agreement, and (iv) subject to therestrictions imposed by Section 6, to cancel or suspend Awards, in eachcase subject to the approval of the Board.

(b)                                 TheExecutive Committee will have the authority and discretion to interpret thePlan, to establish, amend, and rescind any rules and regulations relating tothe Plan, and to determine or amend or waive any of the terms and provisions ofany Award Agreement made pursuant to the Plan, in each case subject to approvalof the Board.

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(c)                                  Tothe extent that the Executive Committee determines that the restrictionsimposed by the Plan preclude the achievement of the material purposes of theAwards to be granted under the Plan in jurisdictions outside the United States,the Executive Committee will have the authority and discretion, subject toapproval of the Board, to modify those restrictions as the Executive Committeedetermines to be necessary or appropriate to conform to applicable requirementsor practices of jurisdictions outside of the United States.

(d)                                 Anyinterpretation of the Plan by the Executive Committee and approved by the Boardand any decision made by the Executive Committee and the Board under the Planis final and binding on all Persons, subject to rights and remedies availableto a Participant under an applicable Award Agreement.

(e)                                  Ininterpreting and administering the Plan and any Award Agreement, the ExecutiveCommittee shall take action in a manner that conforms to the LLC Agreement andapplicable state laws.

5.3           Informationto be Furnished to Board and Executive Committee.  The Company and its Subsidiaries shall furnishthe Board and the Executive Committee with such data and information as each ofthem determines may be required for it to discharge its duties.  The records of the Company and itsSubsidiaries as to an employee’s or Participant’s employment (or other provisionof services), termination of employment (or cessation of the provision ofservices), leave of absence, reemployment and compensation shall be conclusiveon all persons unless determined to be incorrect.  Participants and other persons entitled to benefitsunder the Plan must furnish the Board and the Executive Committee suchevidence, data or information as the Board and the Executive Committeeconsiders desirable to carry out the terms of the Plan.

SECTION6AMENDMENT AND TERMINATION

The Board may, at any time, amend or terminate thePlan, provided that (i) no amendment or termination may, in the absence ofwritten consent to the change by the affected Participant or, the Participant’sPersonal Representative, adversely affect the then existing rights of anyParticipant or beneficiary under any Award granted under the Plan as of thedate such amendment is adopted by the Board, and (ii) no amendment to this Planthat materially limits or modifies the powers and authority of the ExecutiveCommittee as set forth herein shall be effective without the prior consent ofthe Executive Committee.

SECTION7GAMING CONTROL; FINDING OF UNSUITABILITY; AND LEGENDS

7.1           Gaming Control.  The Company shall grant Awards in accordancewith the provisions of applicable Gaming Laws. The grant of any Award in violation of any Gaming Law shall beineffective, and Covered Units shall be deemed not to be issued or outstandinguntil (1) the Company shall cease to be subject to the jurisdiction of GamingAuthorities or (2) the Gaming Authorities shall, by affirmative action,validate such issuance or waive any defect in 

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such issuance. No Non-Voting Common Units issued bythe Company under this Plan and no interest, claim, or charge therein orthereto shall be transferred in any manner whatsoever except in accordance withthe provisions of applicable Gaming Laws. Any transfer in violation thereof shall be ineffective until (1) theCompany shall cease to be subject to the jurisdiction of applicable GamingAuthorities, or (2) applicable Gaming Authorities shall, by affirmative action,validate such transfer or waive any defect in such transfer.

7.2           Finding of Unsuitability orSurrender of License.  If a GamingAuthority finds that a Participant is unsuitable to hold or continue to hold  gaming licenses with respect to the Companyor if Participant shall voluntarily surrender his, her, or its gaming license,then the Participant found to be unsuitable or otherwise surrendering his, her,or its license shall sell, and the Company shall purchase, his, her, or itsCovered Units within such time frame and at the price required under the GamingLaws, and if not otherwise so provided, at the price set forth in the LLCAgreement.

7.3           Legend.  In addition to legends required under the LLCAgreement, including, without limitation, any legends required under applicableGaming Laws, each certificate for Covered Units shall contain a legend readingsubstantially as follows:

Any sale,assignment, transfer, pledge, or other disposition of the shares of stockrepresented by this certificate is restricted by, and subject to, the terms andprovisions of the Peninsula Gaming Partners LLC — Amended and Restated 2004Incentive Unit Plan (the “Plan”), and that certain Award Agreement entered intothereunder.  A copy of the Plan and AwardAgreement are on file with the Secretary of the Company.  By acceptance of this certificate, the holderhereof agrees to be bound by the terms of the Plan and the Award Agreement.

SECTION8MARITAL PROPERTY RIGHTS

No Award Agreementshall be effective until the Company receives an explicit acknowledgment fromthe spouse of a Participant or Principal that Covered Units shall be governedby this Plan, the Award Agreement and the LLC Agreement.

SECTION9DEFINED TERMS

In addition to theother definitions contained herein, the following definitions shall apply:

(a)                                                  Award.  The term “Award” shall mean the grant ofNon-Voting Common Units under the Plan.

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(b)                                                 Award Agreement.  The term “Award Agreement” shall mean thewritten agreement between the Company and a Participant establishing the termsand conditions of an Award.

(c)                           Board. The term “Board” shall mean the Board of Managers of the Company.

(d)                                                 Change of Control.  The term “Change of Control” shall have themeaning ascribed to it in the LLC Agreement.

(e)                           Consultant.  The term “Consultant” shall mean any Personwho is engaged by the Company or any Subsidiary to render consulting oradvisory services to such entity.

(f)                                                    Covered Units.  The term “Covered Units” shall meanNon-Voting Common Units subject to an Award.

(g)                                                 EligibleIndividual.  The term “EligibleIndividual” shall mean any executive, key employee, or Consultant of theCompany or a Subsidiary.  An Award may begranted to an individual (including without limitation indirectly to aPrincipal through an entity Participant) at any time in connection with hiring,retention or otherwise, including prior to the date the individual firstperforms services for the Company or the Subsidiaries, provided that such Awardsshall not become vested prior to the date the individual first performs suchservices.

(h)                                                 Executive Committee.  The term “Executive Committee” shall have themeaning ascribed to it in the LLC Agreement.

(i)                                                     Gaming Authority.  The term “Gaming Authority” shall mean anyagency, authority, board, bureau, commission, department, office orinstrumentality of any nature whatsoever of the United States or foreigngovernment, any state, province or any city or other political subdivision orotherwise, whether now or hereafter in existence, or any officer or officialthereof,  with authority to regulate anygaming operation (or proposed gaming operation) owned, managed or operated bythe Company or any of the Company’s Subsidiaries.

(j)                                                     Gaming Laws. The term “GamingLaws” shall mean the gaming laws of any jurisdiction or jurisdictions to whichthe Company or any of the Company’s Subsidiaries are, or may at any timebecome, subject.

(k)                                                  LLC Agreement.  The term “LLC Agreement” shall mean theSecond Amended and Restated Limited Liability Company Agreement of PeninsulaGaming Partners, LLC, as the same may be amended or restated from time to time.

(l)                                                     Non-Voting Common Unit.  The term “Non-Voting Common Unit” shall havethe meaning ascribed to it in the LLC Agreement.

(m)                                               Person.  The term “Person” shall mean an individual, apartnership, a corporation, a limited liability company, an association, ajoint stock company, a trust, a joint venture, 

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anunincorporated organization and a governmental entity or any department, agencyor political subdivision thereof.

(n)                                                 Subsidiary.  The term “Subsidiary” means any corporation,limited liability company, partnership, joint venture or other entity duringany period in which at least a fifty percent voting or profits interest isowned, directly or indirectly, by the Company (or by any entity that is asuccessor to the Company), and any other business venture designated by theBoard in which the Company (or any entity that is a successor to the Company)has a significant interest, as determined in the discretion of the Board.

(o)                                                 Unvested Units.  The term “Unvested Units” means anyNon-Voting Common Unit issued pursuant to the Plan that is not vested pursuantto the terms of the Award Agreement that granted such Non-Voting Common Unit toa Participant.

 

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