Exhibit 4.5
NONQUALIFIED STOCK OPTION AGREEMENT
This NONQUALIFIED STOCK OPTION AGREEMENT is effective as of the ___ day of
______, 199_ ("Effective Date"), between HOLLYWOOD PARK, INC., a Delaware
corporation (the "Company"), and _____________ (the "Optionee").
R E C I T A L S
A. Optionee is a director of the Company and a member of the Company's
Compensation Committee (the "Committee") and as such is not eligible
to participate in the Company's Stock Option Plans.
B. The Board of Directors of the Company (the "Board") has determined
that it is to the advantage and in the best interests of the Company
and its stockholders to grant a nonqualified stock option to Optionee
covering 5,000 shares of the Company's Common Stock, and has approved
the execution of this Nonqualified Stock Option Agreement between the
Company and Optionee.
C. The option granted hereby is not intended to qualify as an "incentive
stock option" under Section 422 of the Internal Revenue Code of 1986,
as amended (the "Code").
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of Option. The Company grants to Optionee the right and option
("Option") to purchase on the terms and conditions hereinafter set forth, all or
any part of an aggregate of 5,000 shares of Common Stock at the purchase price
of $14.75 per share. The Option shall be exercisable from time to time in
accordance with the provisions of this Agreement during a period expiring on the
tenth anniversary of the date of this Agreement (the "Expiration Date") or
earlier in accordance with Section 4 hereof.
2. Vesting. Except as provided in Section 8, no portion of this Option
shall vest prior to the dates indicated below. Subject to Section 4 hereof,
after the Effective Date and the following dates, this Option may be exercised
up to the indicated percentage of shares covered by this Option:
Percentage of Each Priced
Option Initially Cumulative Percentage
Date Exercisable Exercisable
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Effective Date 0% 0%
First Anniversary of
Effective Date 33% 33%
Second Anniversary of
Effective Date 33% 66%
Third Anniversary of
Effective Date 34% 100%
Subject to earlier termination under Section 4 hereof, at any time after the
third anniversary of the Effective Date, but no later than the Expiration Date,
Optionee may purchase all or any part of the shares subject to this Option which
Optionee theretofore failed to purchase. In each case the number of shares which
may be purchased shall be calculated to the nearest full share.
Notwithstanding the foregoing, the Option granted hereby may become
fully exercisable prior to the scheduled dates above in accordance with the
provisions of Section 8 hereof.
3. Manner of Exercise. Each exercise of this Option shall be by means of
a written notice of exercise delivered to the Company, specifying the number of
shares to be purchased, the exercise price of the options being exercised and
accompanied by payment to the Company (x) of the full purchase price of the
shares to be purchased (i) in cash or by certified, cashier's or (as funds
clear) personal check payable to the order of the Company, or (ii) by delivery
of shares of Common Stock of the Company which have been owned by the Optionee
for over six months and which are in the possession of the Optionee, or a
combination thereof, and (y) of any required withholding taxes (as contemplated
by Section 6 hereof) in cash or by certified, cashier's or (as funds clear)
personal check payable to the order of the Company. Payment of the exercise
price may also be made by delivering (i) a properly executed exercise notice
instructing the Company to deliver the shares being purchased to a broker,
subject to the broker's delivery of cash to the Company equal to the exercise
price plus any applicable tax withholding amount, (ii) irrevocable instructions
to the broker to promptly deliver to the Company such amounts, and (iii) such
other documentation as the Company and the broker shall request. This Option may
not be exercised for a fraction of a share and no partial exercise of this
Option may be for less than (i) one hundred (100) shares or (ii) the total
number of shares then eligible for exercise, if less than one hundred (100)
shares.
This Option may be exercised (i) during the lifetime of the Optionee
only by the Optionee; (ii) to the extent permitted by the Committee or by the
terms of this Agreement, Optionee's spouse if such spouse obtained the Option
pursuant to a qualified domestic relations order as defined by the Code or Title
I of ERISA, or the rules thereunder ("Qualified Domestic Relations Order"); and
(iii) after the Optionee's death by his or her transferees by will or the laws
of descent or distribution, and not otherwise, regardless of any community
property interest therein of the spouse of the Optionee, or such spouse's
successors in interest. If the spouse of the Optionee shall have acquired a
community property interest in this Option, the Optionee, or the Optionee's
permitted successors in interest, may exercise the Option on behalf of the
spouse of the Optionee or such spouse's successors in interest.
4. Cessation of Services, Death or Permanent Disability. If the Optionee
ceases to be a director of the Company for any reason other than the Optionee's
death or "permanent disability" (within the meaning of Section 22(e)(3) of the
Code), the Option
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shall be exercisable until the earlier of (i) the Expiration Date or (ii) a date
three (3) months after the Optionee ceases to be a director of the Company, but
only to the extent the Option was or became exercisable due to such termination
or cessation of service, and shall thereafter expire and be void and of no
further force or effect. The relationship of the Optionee to the Company or any
subsidiary shall be deemed to continue during any leave of absence which has
been authorized in writing by the Committee.
If the Optionee dies or becomes "permanently disabled" while the
Optionee is employed by or providing services to the Company or any of its
subsidiaries, the Option shall be exercisable until the earlier of (i) the
Expiration Date or (ii) a date six (6) months after the date of such death or
"permanent disability", but only to the extent the Option was exercisable on the
date of death or "permanent disability", and shall thereafter expire and be void
and of no further force or effect. During such period after death, any vested,
unexercised portion of the Option may be exercised by the person or persons to
whom the Optionee's rights under the Option shall pass by reason of the death of
the Optionee, whether by will or by the applicable laws of descent and
distribution.
Any unvested portion of the Option at the date of cessation of
provision of services or of death or permanent disability, as the case may be,
and which do not become vested by reason of such termination shall immediately
be cancelled and shall not be exercisable.
5. Shares to be Issued in Compliance with Federal Securities and Other
Applicable Laws and Exchange Rules. By accepting the Option, Optionee represents
and agrees, for Optionee and his or her legal successors (by will or the laws of
descent and distribution or through a Qualified Domestic Relations Order), that
none of the shares purchased upon exercise of the option will be acquired with a
view to any sale, transfer or distribution of said shares in violation of the
Securities Act of 1933, as amended (the "Securities Act"), and the rules and
regulations promulgated thereunder, any applicable state "blue sky" laws or any
applicable foreign laws. If required by the Committee at the time the Option is
exercised, Optionee or any other person entitled to exercise the Option shall
furnish evidence satisfactory to the Company (including a written and signed
representation) to such effect in form and substance satisfactory to the
Company, including an indemnification of the Company in the event of any
violation of the Securities Act, state blue sky laws or any applicable foreign
laws by such person.
No shares shall be issued and delivered upon the exercise of any
option unless and until there shall have been full compliance with all
applicable requirements of the Securities Act (whether by registration or
satisfaction of exemption conditions), all applicable listing requirements of
any principal securities exchange on which shares of the same class are then
listed and any other requirements of law (including without limitation state
blue sky laws) or of any regulatory bodies having jurisdiction over such
issuance and delivery.
6. Withholding of Taxes. Upon the exercise of this Option, the Company
shall have the right to require Optionee or Optionee's legal successor to pay
the Company the
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amount of any taxes which the Company may be required to withhold with respect
to such shares.
7. No Assignment. This Option and all other rights and privileges granted
hereby shall not be transferred, assigned, pledged or hypothecated, either
voluntarily or by operation of law otherwise than by will or the laws of descent
and distribution or pursuant to a Qualified Domestic Relations Order. Upon any
attempt to so transfer, assign, pledge, hypothecate or otherwise dispose of this
Option or any other right or privileges granted hereby contrary to the
provisions hereof, this Option and all rights and privileges contained herein
shall immediately become null and void and of no further force or effect.
8. Adjustment for Reorganizations, Stock Splits, etc. If the outstanding
shares of Common Stock of the Company (or any other class of shares or
securities which shall have become issuable upon the exercise of this Option
pursuant to this sentence) are increased or decreased or changed into or
exchanged for a different number or kind of shares or securities of the Company
through reorganization, recapitalization, reclassification, stock dividend,
stock split, reverse stock split or other similar transaction, an appropriate
and proportionate adjustment shall be made in the maximum number and kind of
shares or securities receivable upon the exercise of this Option, without change
in the aggregate purchase price applicable to the unexercised portion of this
Option, but with a corresponding adjustment in the price for each share or other
unit of any security covered by this Option.
Upon (i) the dissolution or liquidation of the Company, or upon a
reorganization, merger or consolidation of the Company with one or more
corporations as a result of which the Company is not the surviving corporation,
(ii) a sale of substantially all the property or more than forty percent (40%)
of the then outstanding stock of the Company to another corporation (whether by
merger or otherwise); or (iii) if the majority of any class of directors be
comprised of individuals who were not either nominated by the then existing
Board of Directors or had not been appointed by the then existing Board of
Directors (any of the foregoing, a "Corporate Transaction"), subject to the
following sentence, this Option shall terminate and be of no further force and
effect. Notwithstanding the foregoing, the Committee shall provide in writing in
connection with any such transaction for either or both of the following
alternatives: (i) for this Option to become immediately exercisable in full
notwithstanding the provisions of Sections 2 and 3 hereof; or (ii) for the
payment in cash or stock at the option of the Committee in lieu of and in
complete satisfaction of this Option. The Option Holder may exercise the Option
subject to the consummation of a Corporate Transaction.
Adjustments under this Section 8 shall be made by the Committee, whose
determination as to what adjustments shall be made, and the extent thereof,
shall be final, binding and conclusive. No fractional shares of stock shall be
issued under this Option on any such adjustment.
9. Participation by Optionee in Other Company Plans. Nothing herein
contained shall affect the right of Optionee to participate in and receive
benefits under and in accordance with the then current provisions of any
pension, insurance, profit sharing or
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other employee welfare plan or program of the Company or of any subsidiary of
the Company.
10. No Rights as a Stockholder Until Issuance of Stock Certificate.
Neither Optionee nor any other person legally entitled to exercise this Option
shall be entitled to any of the rights or privileges of a stockholder of the
Company in respect of any shares issuable upon any exercise of this Option
unless and until a certificate or certificates representing such shares shall
have been actually issued and delivered to Optionee.
11. Not an Employment or Service Contract. Nothing herein contained shall
be construed as an agreement by the Company or any of its subsidiaries, express
or implied, to employ Optionee or contract for Optionee's services.
12. Governing Law. The interpretation, performance and enforcement of this
Agreement shall be governed by the internal substantive laws of the State of
Delaware, without regard to the conflict of laws provisions of that or any other
State.
HOLLYWOOD PARK, INC.
By:_____________________________
Its:____________________________
OPTIONEE
________________________________
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