Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1/A Amendment No. 3 to Form S-1 106 603K
2: EX-1 Form of Underwriting Agreement 40 120K
3: EX-2.1 Rights Agreement 66 201K
4: EX-5 Opinion of Shack & Siegel, P.C. 2 9K
8: EX-10.17 Credit Agreement 50 162K
5: EX-10.4 Patent License Agreement 7 19K
6: EX-10.5 Employment Agreement-Mr. Neil D. Nicastro 15 37K
7: EX-10.7 Stock Option Plan of the Registrant 10 43K
9: EX-21 Subsidiaries of the Registrant 1 6K
10: EX-23.2 Consent of Ernst & Young LLP 1 7K
EX-10.5 — Employment Agreement-Mr. Neil D. Nicastro
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EXHIBIT 10.5
EMPLOYMENT AGREEMENT
AGREEMENT dated as of July 1, 1996, by and between MIDWAY GAMES INC.
("Midway"), a Delaware corporation with offices at 3401 North California
Avenue, Chicago, IL 60618 and NEIL D. NICASTRO ("Nicastro"), residing at 999
North Sheridan Road, Lake Forest, Illinois 60045.
W I T N E S S E T H
WHEREAS, Midway desires to employ Nicastro and Nicastro is willing to
undertake such employment on the terms and subject to the conditions
hereinafter set forth:
NOW, THEREFORE, in consideration of the mutual covenants, conditions
and agreements hereinafter set forth, the parties hereto agree as follows:
1. Midway hereby employs Nicastro, and Nicastro agrees to be
employed by Midway pursuant hereto, to perform the duties of the Chairman of
the Board, President, Chief Executive Officer and Chief Operating Officer of
Midway and such other supervisory or executive duties on behalf of Midway as
the Board of Directors of Midway shall determine. Except with the consent of
Nicastro, the principal office in which he shall perform his duties shall be
located in Chicago, Illinois, or its environs.
2. The term of Nicastro's employment hereunder shall commence on
the date hereof and terminate on June 30, 2001 (the "Original Term"); provided,
however, that the term of Nicastro's employment shall be deemed automatically
extended from time to time such that the term of such employment shall at no
time be less than three years (the "Extended Term"); and provided further, that
Nicastro's services hereunder may be terminated by either party, effective upon
expiration of the Original Term or the Extended Term upon written notice from
the
terminating party to the other party dated and received at least three (3)
years prior to the respective termination date, and, provided further, that in
the event of the "total disability" of Nicastro (as hereinafter defined), any
right of Midway to terminate Nicastro's services shall be subject to the
provisions of Paragraph 7 of this Agreement.
3. (a) Midway shall pay to Nicastro in respect of each year
of his employment hereunder, a base salary at the rate of $300,000 per annum,
payable in equal bi-weekly installments, or such greater amount as the Board of
Directors of Midway shall from time to time determine.
(b) Commencing with the fiscal year of Midway beginning
July 1, 1996 and each fiscal year thereafter during the term of this Agreement,
Nicastro shall be paid a bonus in the amount equal to two percent (2%) of
"pre-tax income" multiplied by the percentage of Midway common stock
outstanding which is not owned by WMS Industries Inc. ("WMS"). The term
"pre-tax income" means the "Income before tax provision and extraordinary
items" of Midway as reported on its audited consolidated statements of
operations with respect to the applicable fiscal year, but modified to
eliminate the effect of (A) any adjustment for taxes, penalties or interest
payable with respect to any fiscal year beginning before July 1, 1996 and (B)
the bonus payable pursuant to this subparagraph, both such modifications to be
determined by the Board of Directors in accordance with generally accepted
accounting principles. The amount of the bonus, if any, to which Nicastro
becomes entitled pursuant to this subparagraph shall be paid within fifteen
(15) days after Midway releases its audited financial statements for the
applicable fiscal year. With respect to the fiscal year of Midway during which
Nicastro's employment hereunder terminates for any reason, Nicastro shall be
entitled to a pro-rata bonus
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based upon the number of days in such fiscal year during which Nicastro was
employed by Midway. If requested by Nicastro, Midway shall make quarterly
interest free advances against the bonus in amounts mutually agreeable to
Midway and Nicastro.
(c) In addition to other compensation hereunder, Nicastro
shall be entitled to participate in and receive the benefits of all pension and
retirement plans, bonus plans, health, life, hospital, medical and dental
insurance (including reimbursement for all medical and dental expenses incurred
by him, his spouse and his children twenty-one (21) years of age or younger, to
the extent such expenses are not otherwise reimbursed by insurance provided by
WMS or Midway, as the case may be) and all other employee benefits and
perquisites generally made available to employees of Midway to the extent that
WMS fails for any reason to provide the aforementioned benefits and perquisites
to Nicastro pursuant to the WMS Agreement (as hereinafter defined). Nicastro
shall also be entitled to a paid vacation of not less than four (4) weeks per
annum. In addition, Midway shall provide Nicastro with One Million Dollars
($1,000,000) in additional life insurance coverage, payable to such beneficiary
as Nicastro shall designate from time to time, in such form and manner as
Midway and Nicastro shall determine as appropriate in order to minimize the
income tax consequences of such coverage to Nicastro.
4. During the term of this Agreement, Midway shall reimburse
Nicastro for all expenses reasonably incurred by him in connection with the
business of Midway, including, but not limited to, such items as entertainment,
traveling, hotel, gifts and similar items as shall be deemed necessary and
commensurate with his position as Chairman of the Board, President, Chief
Executive Officer and Chief Operating Officer of Midway. Nicastro will present
receipts or vouchers for any requested reimbursements in accordance with
Midway's normal policy and
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will comply with any appropriate procedures established by Midway to provide
for payment or withholding of income or other taxes as may be required by law
to be paid or withheld in connection with any such reimbursements.
5. (a) Nicastro agrees that, throughout the period in which
he is required to perform services hereunder, he will devote his attention,
knowledge and skills faithfully, diligently and to the best of his ability in
furtherance of the business of Midway and businesses in which Midway has an
interest, and in the full performance of the duties assigned to him hereunder,
subject at all times, to the direction and control of the Board of Directors of
Midway, and he shall not, throughout such period, enter into the service of, or
be employed in any capacity or for any purpose whatsoever by, any person, firm
or corporation other than Midway and businesses in which Midway has an
interest, except as permitted in this Paragraph 5(a) and in Paragraph 5(b)
below with respect to Nicastro's activities on behalf of WMS, if such other
services or employment would interfere with the performance of his duties
hereunder. Nothing contained in this paragraph shall be deemed to prohibit
Nicastro from (i) investing his assets or funds, so long as the business of any
such entity in which he shall make his investments shall not be in direct
competition with that of Midway, except that Nicastro may invest in a corporate
entity in competition with Midway if such corporation's stock is listed for
trading on a national stock exchange or traded in the over-the-counter market
and Nicastro's holdings therein represent less than 5% of the outstanding stock
thereof; or (ii) acting as a director, trustee, officer, or upon a committee of
any other firm, trust or corporation where such positions do not unreasonably
interfere with the services to be rendered by Nicastro hereunder. Midway
acknowledges that Nicastro may continue to perform services for businesses in
which Midway
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had an interest at the time his services commenced even after Midway's interest
terminates, so long as such services do not unreasonably interfere with the
services to be rendered by Nicastro hereunder.
(b) Midway acknowledges that Nicastro currently serves as
Chairman of the Board of Directors, President, Chief Executive Officer and
Chief Operating Officer of WMS, the parent company of Midway, pursuant to a
Third Amended and Restated Employment Agreement dated as of July 1, 1996
between WMS and Nicastro, and that he will divide his time and attention
between the business of Midway and the business of WMS in such manner as he
shall consider appropriate. Any termination of this Agreement by Midway by
reason of Midway's determination that Nicastro has not devoted sufficient time
and attention to the business of Midway shall be deemed a termination in
violation of this Agreement.
6. (a) In the event Nicastro shall die during the term of
this Agreement but prior to his "Retirement Date" (as hereinafter defined),
Midway shall, in addition to the benefits, which may become payable pursuant to
subparagraph 3(c), pay death benefits as hereinafter provided to such person or
persons as Nicastro shall, at his option, from time to time designate by
written instrument delivered to Midway, each subsequent designation to be
deemed to revoke all prior designations, or if no such designation is made, to
his estate, for a period of seven (7) years, in equal monthly payments
commencing the first day of the first month following death. Such annual death
benefit shall be equal to one-half (1/2) of the aggregate annual base salary
payable to Nicastro as of the date of death, but in no event shall be less than
One Hundred Fifty Thousand Dollars ($150,000) per annum.
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(b) "Retirement Date" shall mean the later to occur of
(i) the date on which Nicastro shall become forty-five (45) years old or (ii)
the date of the termination of Nicastro's employment by Midway. Midway will
pay to Nicastro on the first day of the first month following his Retirement
Date, and on the first day of each month thereafter for a period of seven (7)
years in equal monthly payments, an annual retirement income benefit equal to
one-half (1/2) of the aggregate annual base salary payable to Nicastro as of
the date of termination of his employment by Midway, but in no event less than
One Hundred Fifty Thousand Dollars ($150,000) per annum. In the event that
Nicastro shall die after his Retirement Date, but before the retirement
benefits provided for herein shall be fully paid, the balance thereof shall
thereafter be payable in monthly installments to his estate.
(c) The death and retirement benefits provided by
subparagraphs 6(a) and (b) hereof shall be payable notwithstanding the
termination of Nicastro's employment by Midway for any reason or the
resignation of Nicastro at any time after the date hereof.
7. Nicastro shall receive full compensation for any period of
illness or incapacity during the term of his employment hereunder.
Notwithstanding the foregoing, if such illness or incapacity shall have
disabled Nicastro from performing his duties hereunder for a period of more
than six (6) consecutive months (hereinafter referred to as "total
disability"), Midway shall thereafter have the right to terminate Nicastro's
employment under this Agreement upon giving at least thirty (30) days' written
notice of its intention to do so. If Nicastro shall resume his duties within
thirty (30) days following the receipt of such notice, and shall perform such
duties on a regular basis for two (2) consecutive months thereafter, this
Agreement and Nicastro's employment hereunder shall continue in full force and
Midway's notice of intention to terminate
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shall have no further force or validity. In the event that Midway shall give
such notice of termination and Nicastro shall not timely resume his duties
hereunder, Nicastro's employment under this Agreement shall terminate on the
date set forth in the notice but all other applicable terms of this Agreement,
including, among other things, the obligation of Midway to pay death and
retirement benefits under Paragraph 6 above, shall remain in full force and
effect.
8. Subject to Nicastro's duties to WMS and except as permitted in
Paragraph 5 hereof, Nicastro covenants and agrees as follows:
(a) During the period of his employment hereunder, and
for a further period of one (1) year thereafter he shall not, directly or
indirectly own, manage, operate, join, control, participate in, invest in, or
otherwise be connected with, in any manner, whether as an officer, director,
employee, partner, investor or otherwise, or allow his name to be used in any
business or enterprise which competes in any way with Midway in any city or
trade territory in the United States (including Puerto Rico) or Canada where
Midway is directly or indirectly, through distributors or others, engaged in
the operation of its business.
(b) During the term of this Agreement and thereafter, he
shall hold in a fiduciary capacity for the benefit of Midway, all information,
knowledge and data relating to or concerned with its operations, sales,
businesses and affairs, and he shall not disclose or divulge any such
information, knowledge or data to any person, firm or corporation other than to
Midway or its designees, except as may otherwise be required in connection with
the business and affairs of Midway.
Nicastro acknowledges that the provisions of this Paragraph 8 are
reasonable and necessary for the protection of Midway, and that each provision,
and the period or periods of
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time, geographic areas and types and scope of restrictions on the activities
specified herein are, and are intended to be, divisible. In the event that any
provision of this Paragraph 8, including any sentence, clause or part hereof,
shall be deemed contrary to law or invalid or unenforceable in any respect by a
court of competent jurisdiction, the remaining provisions shall not be
affected, but shall, subject to the discretion of such court, remain in full
force and effect and any invalid and unenforceable provisions shall be deemed,
without further action on the part of the parties hereto, modified, amended and
limited to the extent necessary to render the same valid and enforceable.
Midway acknowledges that Nicastro's duties to WMS may, at such time as WMS is
permitted to engage in businesses competitive with that of Midway, include
activities competitive with that of Midway and that any termination of this
Agreement by Midway by reason of the foregoing shall be deemed a termination in
violation of this Agreement.
9. (a) Except as provided in the next succeeding
subparagraph, in the event of a breach or threatened breach by either Midway or
Nicastro of any obligations under this Agreement, the parties hereto
acknowledge that Midway or Nicastro, as the case may be, will not have an
adequate remedy at law, and shall be entitled to such equitable and injunctive
relief as may be available to restrain violations of the provisions of this
Agreement. Nothing in this subparagraph shall be construed as prohibiting the
parties hereto from pursuing any other remedies available for such breach or
threatened breach, including the recovery of damages for such breach or
threatened breach.
(b) Notwithstanding anything contained in the preceding
subparagraph to the contrary:
8
(i) (A) If Midway terminates Nicastro's
employment in violation of this Agreement and Nicastro gives
the written notice to Midway provided for in subparagraph 9(c)
hereof; or (B) if at any time during the term of this
Agreement, individuals who presently constitute the Board of
Directors of Midway, or who have been recommended for election
to the Board by two-thirds of the Board consisting of
individuals who are either presently on the Board or such
recommended successors (such present directors or recommended
directors being hereafter referred to as "Acceptable
Directors"), cease for any reason to constitute at least a
majority of such Board, and Nicastro gives the written notice
to Midway provided for in subparagraph 9(d) hereof, Midway
shall pay to Nicastro within fifteen (15) days (or, if later,
five (5) business days after Nicastro's delivery of the notice
of determination described in subparagraph 9(b)(iii) below)
after such termination pursuant to clause (A) or (B) hereof,
as the case may be, as severance pay and liquidated damages,
in lieu of any other rights or remedies which might otherwise
be available to him under this Agreement, and without
mitigation of any kind or amount, whether or not Nicastro
shall seek or accept other employment, a lump sum payment
equal in amount to the sum of:
(I) the aggregate base salary which would have
been payable to Nicastro pursuant to subparagraph 3(a) of this
Agreement during the remaining term hereof (for purposes of
this subparagraph 9(b)(I), the rate of Nicastro's base salary
shall be deemed to be Nicastro's base salary at the highest
annual rate in effect during the one-year period immediately
preceding termination);
(II) the aggregate bonus which would have been
payable to Nicastro pursuant to subparagraph 3(b) of this
Agreement during the remaining term hereof, assuming pre-tax
income of Midway during the remaining term hereof is
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earned at the highest level achieved in either of the last two
(2) full fiscal years prior to such termination; and
(III) the aggregate retirement benefits which would
have been payable to Nicastro pursuant to subparagraph 6(b) of
this Agreement (for purposes of this subparagraph 9(b)(III),
Nicastro's Retirement Date shall be deemed the date of such
termination if such Retirement Date has not yet actually
occurred);
but in no event shall the payment pursuant to this
subparagraph 9(b)(i) be less than three times Nicastro's base
salary at the highest annual rate in effect during the
one-year period immediately preceding termination. Each of
the payments provided for in this subparagraph 9(b)(i) shall
be paid in full, without discount to present value. In
addition to such lump sum payment to Nicastro, Nicastro shall
have the right, exercisable within thirty (30) days after such
termination pursuant to clauses (A) or (B) hereof, to sell to
Midway any or all options held by Nicastro to purchase Midway
common stock and options to purchase the securities of any
other company at least 20% of the voting securities of which
are owned by Midway (a "Related Company") at a price per
option equal to the amount by which (i) the average closing
price of the Midway common stock or the securities of such
Related Company, as the case may be, on the New York Stock
Exchange (or other applicable trading market if not listed on
the New York Stock Exchange) during the thirty-day period
immediately preceding the date on which he notifies Midway of
his election to sell such options plus the fair market value
per share of other securities or assets which Nicastro would
be entitled to receive upon exercise of such options exceeds
(ii) the option exercise price for each such share. All
options not yet fully exercisable shall be deemed fully
exercisable for
10
purposes of the foregoing computation. Such payments shall be
made by Midway at the time provided in this subparagraph
9(b)(i) and shall not require any further authorization or
approval of the Board of Directors of Midway.
(ii) If it shall be determined that any amount
payable under subparagraph 9(b) by Midway to or for the
benefit of Nicastro (a "Base Payment") would be subject to the
excise tax (the "Excise Tax") imposed by Section 4999 of the
Internal Revenue Code of 1986, as amended (the "Code"), then
Nicastro shall be entitled to receive an additional payment
(the "Gross-up Payment") in an amount such that the net amount
retained by Nicastro, after the calculation and deduction of
any Excise Tax on the Base Payment and any federal, state, and
local income taxes and Excise Tax on the Gross-Up Payment,
shall be equal to the Base Payment. In determining this
amount, the amount of the Gross-Up Payment attributable to
federal income taxes shall be reduced by the maximum reduction
in federal income taxes that could be obtained by the
deduction of the portion of the Gross- Up Payment attributable
to state and local income taxes. Finally, the Gross-Up
Payment shall be reduced by income or Excise Tax withholding
payments made by Midway to any federal, state, or local taxing
authority with respect to the Gross-Up Payment that was not
deducted from compensation payable to Nicastro.
(iii) All determinations required to be made under
subparagraph 9(b)(ii), including whether and when a Gross-Up
Payment is required, the amount of such Gross-Up Payment, and
the assumptions to be utilized in arriving at such
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determination, except as specified above, shall be made by
Midway's independent auditors (the "Accounting Firm"), which
shall provide detailed supporting calculations both to Midway
and Nicastro within fifteen business days after the receipt of
notice from Nicastro that there should be a Gross-Up Payment.
The determination of tax liability made by the Accounting Firm
shall be subject to review by Nicastro's tax advisor, and, if
Nicastro's tax advisor does not agree with the determination
reached by the Accounting Firm, then the Accounting Firm and
Nicastro's tax advisor shall jointly designate a nationally
recognized public accounting firm, which shall make the
determination. All fees and expenses of the accountants and
tax advisors retained by either Nicastro or Midway shall be
borne by Midway. Any Gross-Up Payment shall be paid by Midway
to Nicastro within five days after the receipt of the
determination. Any determination by a jointly designated
public accounting firm shall be binding upon Midway and
Nicastro.
(c) Midway shall be deemed to have terminated Nicastro's
employment in violation of this Agreement for all purposes hereunder, if, among
other things, without his prior written consent:
(i) Nicastro is placed in any position of lesser
stature than that of Chairman of the Board, President, Chief
Executive Officer and Chief Operating Officer of Midway; is
assigned duties inconsistent with such positions or duties
which, if performed, would result in a significant change in
the nature or scope of powers, authority, functions or duties
inherent in such positions on the date
12
hereof; is assigned performance requirements or working
conditions which are at variance with the performance
requirements and working conditions in effect on the date
hereof; or is accorded treatment on a general basis which is
in derogation of his status as President and Chief Executive
Officer;
(ii) Nicastro ceases to serve as a member of the
Board of Directors of Midway;
(iii) Midway discontinues or reduces (from the
highest level in effect during the term of this Agreement) the
amount of base salary or bonus payable to Nicastro pursuant to
subparagraphs 3(a) or 3(b) of this Agreement; or
(iv) Midway discontinues or reduces (from the
level in effect on the date hereof) the perquisites or fringe
benefits inherent in Nicastro's position on the date hereof;
and Nicastro gives written notice of his election to deem such act to
constitute termination, in which event termination pursuant to this
subparagraph 9(c) shall be deemed to have occurred upon the date of the giving
of such notice.
(d) In the event of a change in the constitution of the Board of
Directors of Midway such that it does not include a majority of Acceptable
Directors as provided in Clause (B) of subparagraph 9(b)(i) hereof, and in the
further event that at any time thereafter, Nicastro gives written notice of his
election to terminate this Agreement, termination pursuant to this subparagraph
9(d) shall be deemed to have occurred upon the date of the giving of such
notice.
10. This Agreement may not be assigned by Nicastro but shall inure
to the benefit of and shall be binding upon the successors and assigns of
Midway.
13
11. All notices shall be addressed to each party hereto at its
address set forth on the first page of this Agreement or as such address may be
changed from time to time by notice in accordance with this Paragraph 11 and
shall be delivered in person or sent by mail with first class postage prepaid
or by express mail service for next day delivery or other responsible overnight
delivery service, and, if sent by mail shall be deemed to have been given and
received two business days after the date of deposit in the mails and, if sent
by express mail service or overnight delivery service shall be deemed to have
been given and received on the next business day after the date of the delivery
of the notice to such service.
12. Any waiver by either Midway or Nicastro of any breach of any
provisions of this Agreement by the other party shall not operate or be
construed as a waiver of any other or subsequent breach hereof.
13. This Agreement shall be governed and construed in accordance
with the substantive laws of the State of Illinois applicable to agreements to
be performed entirely therein.
14. No amendment or modification of this Agreement shall be valid
and binding unless made in writing and signed by both of the parties hereto.
15. In the event that any provision of this Agreement, including
any sentence, clause or part hereof, shall be deemed contrary to law or invalid
or unenforceable in any respect by a court of competent jurisdiction, the
remaining provisions shall not be affected, but shall, subject to the
discretion of such court, remain in full force and effect and any invalid and
unenforceable provision shall be deemed, without further action on the part of
the parties hereto, modified, amended and limited to the extent necessary to
render the same valid and enforceable.
14
16. Notwithstanding anything to the contrary contained herein,
this Agreement is subject to, and shall have no force and effect until, the
completion of the initial public offering of common stock by Midway.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
MIDWAY GAMES INC.
By:________________________
Harold H. Bach, Jr.
Executive Vice
President - Finance
___________________________
NEIL D. NICASTRO
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Dates Referenced Herein and Documents Incorporated by Reference
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