EXHIBIT 10.28
FORM OF STOCK OPTION AGREEMENT
THIS AGREEMENT (this "AGREEMENT"), effective as of __________, 1997 is
made and entered into by and between Anchor Gaming, a Nevada Company (the
"COMPANY"), and Xxxx X. Xxxxxxxxx (the "OPTIONEE")
RECITALS:
A. Optionee has agreed to serve as a director of the Company;
B. The Company has agreed to grant to the Optionee an option (the
"OPTION") to purchase shares of Common Stock, $.01 par value, of the Company
(the "COMMON STOCK"), subject to certain conditions;
C. The Board of Directors has approved the grant of the Option;
D. The parties hereto desire to evidence in writing the terms and
conditions of the Option.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and promises set forth in this Agreement, and other good and valuable
consideration the receipt and sufficiency of which are mutually acknowledged,
the parties agree as follows:
1. GRANT OF OPTION.
(a) The Company hereby grants to the Optionee, upon the terms and
subject to the conditions, limitations and restrictions set forth in this
Agreement, an Option to acquire 25,000 shares of Common Stock, at an exercise
price per share of $72.75 (the "EXERCISE PRICE"), effective as of the date of
this Agreement (the "AWARD DATE"). The Optionee hereby accepts the Option
from the Company.
(b) In the event that the average closing price of the index set forth
on Exhibit A to this Agreement falls to an amount less than 80% of the level
of the closing price thereof on the Award Date and remains at such level or
below for a period of 60 consecutive business days, the exercise price of the
Option will be reduced to the average closing price of the Common Stock as
traded on the Nasdaq National Market during such 60 day period.
2. EXERCISE.
(a) The Option will become exercisable in ten equal installments of
2,500 shares each (each an "EXERCISABLE PORTION") on each anniversary of the
Award Date. In
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order to exercise the Option with respect to any Exercisable Portion, the
Optionee will provide written notice (the "EXERCISE NOTICE") to the Company
at its principal executive office stating the number of shares in respect of
which the option is being exercised. The Exercise Notice must be signed by
the Optionee and must include his complete address and social security
number. If the person exercising the Option is a transferee of the Optionee
by will or under the laws of descent and distribution, the Exercise Notice
must be accompanied by appropriate proof of the right of such transferee to
exercise this Option. At the time of exercise, the Optionee will pay to the
Company the exercise price per share set forth in SECTION 1 times the number
of shares as to which the Option is being exercised. The Optionee will make
such payment (i) by certified check; (ii) at the Company's option, by the
delivery of shares of Common Stock having a Fair Market Value (defined below)
on the date immediately preceding the exercise date equal to the aggregate
exercise price; (iii) cancellation of the Option with respect to a number of
shares having an aggregate Fair Market Value on the date immediately
preceding the date of exercise that exceeds the aggregate Exercise Price by
the amount of the Exercise Price due with respect to such Exercise Notice .
If the Option is exercised in full, the Optionee will surrender this
Agreement to the Company at the Company's option for cancellation. If the
Option is exercised in part, the Optionee will surrender this Agreement to
the Company, at the Company's option, so that the Company may make
appropriate notation on this Agreement or cancel this Agreement and issue a
new agreement representing the unexercised portion of the Option. The Option
may not be exercised for less than 100 shares at a time or the remaining
shares purchasable under the Option, if less than 100 shares. "FAIR MARKET
VALUE" means (i) the last reported sale price, regular way or the Common
Stock on the Nasdaq National Market or other market or exchange on which the
Common Stock is traded; or (ii) if there is no reported price information for
the Common Stock, the Fair Market Value as determined in good faith by the
Board of Directors.
(b) Notwithstanding the foregoing, upon the occurrence of an
Acceleration Event (as defined below), the Option will become exercisable in
full and may be exercised by the Optionee at any time during the remaining
stated term of the Option; provided that if, following a Acceleration Event,
the Optionee ceases to be a director of the Company or a subsidiary of the
Company, then the Option may be exercised by the Optionee at any time within
a period of one year after the date of such cessation or, if shorter, during
the remaining stated term of the Option. "ACCELERATION EVENT" means the
occurrence of any of the following events: (a) the Company is merged, or
consolidated or reorganized into or with another entity and as a result of
such merger, consolidation, or reorganization, less than 50% of the combined
voting power of the then outstanding securities of such entity or its
ultimate parent immediately after such transaction are received in respect of
or exchange for voting securities of the Company pursuant to such
transaction; (b) the Company sells all or a majority of its assets to any
other entity and as a result of such sale less than 50% of the combined
voting power of the then outstanding voting securities of such entity or its
ultimate parent immediately after such transaction are received in respect of
or exchange for voting securities of the Company pursuant to such sale; (c)
any person not beneficially owning in excess of 5%
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of the outstanding voting securities on the date of this Agreement (including
any "person" as such term is used in Section 13(d)(3) or Section 14(d)(2) of
the Securities Exchange Act of 1934 (the "EXCHANGE ACT")) has become the
beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3
or any successor rule or regulation promulgated under the Exchange Act) of
securities which when added to any securities already owned would represent
in the aggregate 50% or more of the combined voting power of the then
outstanding voting securities of the Company; provided, however, that any
transfer of voting securities by Xxxxxxx X. Xxxxxx to a charitable or other
trust for estate planning purposes or to his legal representatives, heirs, or
assigns by will or the laws of succession, shall not be deemed or otherwise
trigger a Vesting Event; or (d) any other event or series of related events
transpires that constitutes a "change of control" under Form 8-K promulgated
under the Exchange Act or any successor form.
(c) If the shares to be purchased are covered by an effective
registration statement under the Securities Act of 1933, as amended (the
"ACT"), the Option may be exercised by a broker-dealer acting on behalf of
the Optionee if (a) the broker-dealer has received from the Optionee or the
Company a fully and duly endorsed agreement evidencing such option, together
with instructions signed by the Optionee requesting the Company to deliver
the shares of Common Stock subject to such option to the broker-dealer on
behalf of the Optionee and specifying the account into which such shares
should be deposited, (b) adequate provision has been made with respect to the
payment of any withholding taxes due upon such exercise, and (c) the
broker-dealer and the Optionee have otherwise complied with Section
220.3(e)(4) of Regulation T, 12 CFR Part 220, or any successor provision.
(d) The Option will be exercisable during the lifetime of the Optionee
only by the Optionee. To the extent exercisable after the Optionee's death,
the Option will be exercised only by the Optionee's representatives,
executors, successors or beneficiaries.
3. EXPIRATION OF OPTION. The Option will expire, and will not be
exercisable with respect to any Exercisable Portion as to which the Option
has not been exercised, on the first to occur of: (a) the eleventh
anniversary of the Award Date; or (b) one year after any Acceleration Event
4. TAX WITHHOLDING. Any provision of this Agreement to the contrary
notwithstanding, the Company may take such steps as it deems necessary or
desirable for the withholding of any taxes that it is required by law or
regulation of any governmental authority, federal, state, or local, domestic
or foreign, to withhold in connection with any of the shares of Common Stock
subject hereto, including requiring the Optionee to pay to the Company the
amount of such withholding tax before the Company issued any shares pursuant
to the exercise of the Option.
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5. DILUTION. If the number of shares of Common Stock outstanding is
changed by reason of a stock dividend, stock split, recapitalization, or
combination of shares, the number of shares of Common Stock then issuable
upon exercise of the Option and the exercise price per share will be
appropriately adjusted. In the event of any merger, consolidation,
reorganization, or recapitalization of the Company pursuant to which holders
of the Common Stock receive other securities (a "REORGANIZATION TRANSACTION"),
then upon any subsequent exercise of the Option, the Optionee will be entitled
to receive, for each share of Common Stock issuable upon exercise of the Option
prior to such Reorganization Transaction, the number and kind of securities and
other property received in respect of one share of Common Stock as a result of
such Reorganization Transaction.
6. TRANSFER OF OPTION. The Optionee will not, directly or indirectly,
sell, transfer, pledge, encumber or hypothecate ("TRANSFER") any of the
Option or the rights and privileges pertaining thereto except for the
Exercisable Portion. In addition, the Optionee will not, directly or
indirectly, transfer any portion of the Option or any shares of Common Stock
acquired upon exercise of the Option other than (i) with the prior written
consent of the Company, (ii) by will or the laws of descent and distribution,
(iii) with respect to shares of Common Stock acquired upon exercise of the
Option, pursuant to an effective registration statement filed under the Act,
or (iv) with respect to shares of Common Stock acquired upon exercise of the
Option, pursuant to an exemption from the registration requirements of the
Act. Any permitted transferee to whom the Optionee transfers the Option
pursuant to (i) or (ii) above will agree to be bound by this Agreement.
Neither the Option nor the underlying shares of Common Stock is liable for or
subject to, in whole or in part, the debts, contracts, liabilities or torts
of the Optionee, nor will they be subject to garnishment, attachment,
execution, levy, or other legal or equitable process.
7. CERTAIN LEGAL RESTRICTIONS. The Company will not be obligated to
sell or issue any shares of Common Stock upon the exercise of the Option or
otherwise unless the issuance and delivery of such shares complies with all
relevant provisions of law and other legal requirements including, without
limitation, any applicable federal or state securities laws and the
requirements of any stock exchange upon which shares of the Common Stock may
then be listed. As a condition to the exercise of the Option or the sale by
the Company of any additional shares of Common Stock to the Optionee, the
Company may require the Optionee to make such representations and warranties
as may be necessary to assure the availability of an exemption from the
registration requirements of applicable gaming regulations or federal or
state securities laws. The Company will not be liable for refusing to sell
or issue any shares if the Company cannot obtain authority from the
appropriate regulatory bodies deemed by the Company to be necessary to
lawfully sell or issue such shares. In addition, the Company will have no
obligation to the Optionee, express or implied, to list, register or
otherwise qualify any of the Optionee's shares of Common Stock. The shares
of Common Stock issued upon the exercise of the Option may not be transferred
except in accordance with applicable federal or state securities laws. At
the Company's option, the certificate
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evidencing shares of Common Stock issued to the Optionee will bear
appropriate legends restricting transfer under gaming and other applicable
law.
Any Common Stock issued pursuant to the exercise of Options granted
pursuant to this Agreement during the Optionee's service as an director of
the Company under Rule 16b-3 will not be transferred until at least six
months have elapsed from the date of grant of such Option to the date of a
disposition of the Common Stock underlying such Option.
8. MISCELLANEOUS.
(a) The granting of the Option will impose no obligation upon the
Optionee to exercise the Option or any part thereof.
(b) Neither the Optionee nor any person claiming under or through
the Optionee will be or will have any of the rights or privileges of a
stockholder of the Company in respect of any of the shares issuable upon
the exercise of the Option unless and until certificates representing such
shares have been issued and delivered to the Optionee or such Optionee's
agent.
(c) Any notice to be given to the Company under the terms of this
Agreement or any deliver of the Option to the Company will be addressed to
the Company at its principal executive offices, and any notice to be given
to the Optionee will be addressed to the Optionee at the address set forth
beneath his signature on this Agreement, or at such other address for a
party as such party may hereafter designate in writing to the other. Any
such notice will be deemed to have been duly given if mailed, postage
prepaid, addressed as aforesaid. Subject to the limitations in this
Agreement on the transferability by the Optionee of the Option and any
shares of Common Stock, this Agreement will be binding upon and inure to
the benefit of the representatives, executors, successors or beneficiaries
of the parties hereto.
(d) THE INTERPRETATION, PERFORMANCE AND ENFORCEMENT OF THIS
AGREEMENT SHALL BE GOVERNED BY THE LAW: OF THE STATE OF NEVADA AND THE
UNITED STATES, AS APPLICABLE, WITHOUT REFERENCE TO THE CONFLICT OF LAWS
PROVISIONS THEREOF.
(e) If any provision of this Agreement is declared or found to be
illegal, unenforceable, or void, in whole or in part, then the parties
will be relieved of all obligations arising under such provision, but only
to the extent that it is illegal, unenforceable, or void, it being the
intent and agreement of the parties that this Agreement shall be deemed
amended by modifying such provision to the extent necessary to make it
legal and enforceable while preserving its intent or, if that is
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not possible, by substituting therefor another provision that is legal and
enforceable and achieves the same objectives.
(f) All section titles and captions in this Agreement are for
convenience only, will not be deemed part of this Agreement, and in no way
will define, limit, extend, or describe the scope or intent of any
provisions of this Agreement.
(g) The parties will execute all documents, provide all information,
and take or refrain from taking all actions as may be necessary or
appropriate to achieve the purposes of this Agreement
(h) This Agreement constitutes the entire agreement between the
parties to this Agreement pertaining to the subject matter of this
Agreement and supersedes all prior agreements and understandings
pertaining to such subject matter.
(i) No failure by any party to insist upon the strict performance of
any covenant, duty, agreement, or condition of this Agreement or to
exercise any right or remedy consequent upon a breach thereof will
constitute waiver of any such breach or any other covenant, duty,
agreement, or condition.
(j) This Agreement may be executed in counterparts, all of which
together will constitute one agreement binding on all the parties to this
Agreement, notwithstanding that all such parties are not signatories to
the original or the same counterpart.
(k) No supplement, modification, or amendment of this Agreement or
waiver of any provision of this Agreement will be binding unless executed
in writing by all parties to this Agreement. No waiver of any of the
provisions of this Agreement will be deemed or will constitute a waiver of
any other provision of this Agreement (regardless of whether similar), nor
will any such waiver constitute a continuing waiver unless otherwise
expressly provided.
(l) Optionee shall file a Form 3 with the Securities and Exchange
Commission within 10 days of the date of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
COMPANY:
ANCHOR GAMING
By:
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Xxxx Xxxxxx
Chairman of the Board/Chief Executive
Officer
OPTIONEE:
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Xxxx X. Xxxxxxxxx
c/o Hughes & Xxxx, L.L.P
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
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