EXHIBIT 4.15
26
STOCK OPTION AGREEMENT
Xxxxxxx Xxxxxx, Inc., a Nevada corporation ("Optionor"), and
____________________ ("Optionee") hereby agree as of the 11th day
of December, 1991, as follows:
W I T N E S S E T H:
WHEREAS, Optionor is the owner of shares of MarCor Resorts,
Inc., a Nevada corporation (the "Company");
WHEREAS, Optionee has paid Optionor the sum of Ten and
No/100ths Dollars ($10.00);
WHEREAS, Optionor acquired its shares of the Company with an
intent to invest in said shares and did not and does not intend
to distribute said shares in contravention of the federal
securities laws or of the laws of the State of Nevada or any
other state;
WHEREAS, Optionor and Optionee acknowledge that the shares
of the Company held by Optionor are restricted shares under the
federal and state securities laws, and any resales of shares are
subject to such federal and state securities laws;
WHEREAS, Optionor desires to grant an option to Optionee to
acquire a stated amount of Optionor's shares;
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein, Optionor and Optionee hereby agree as
follows:
1. Optionee is entitled to purchase from Optionor, at the
price of $2.50 per share up to __________ (__________) shares,
fully paid and non-assessable Common Shares of the Company, $.01
par value (hereinafter called "capital stock"), subject, however,
to the provisions and upon the terms and conditions hereinafter
set forth. The rights granted pursuant to this paragraph shall
hereinafter be referred to as the "Option."
2. The Option and all rights granted hereunder shall
expire on the first to occur of the following:
(a) At 11:59 P.M., Las Vegas, Nevada time, on December
12, 1996.
(b) At 11:59 P.M., Las Vegas, Nevada time, on the
thirtieth day following Optionee's cessation of employment,
including service as an officer or director, by or with Optionor
or its affiliates. As used herein "affiliate" is a person that
directly, or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with,
Optionor.
(c) At 11:59 P.M., Las Vegas, Nevada time, on the one
hundred eightieth day following the date of death of Optionee.
3. The Option may be exercised by the Optionee hereof, in
whole or in part (but not for fractional shares of capital stock)
by delivery of notice in writing at the office of Optionor (or
such other office or agency as Optionor may designate by notice
in writing to the Optionee at the address of such Optionee
appearing at the end of this Agreement at any time within the
period above named) and upon payment to Optionor by certified
check or cashier's check of the purchase price for such shares.
In the event of any exercise of the rights represented by this
Option, certificates for the shares of capital stock so purchased
shall be delivered to the Optionee hereof within a reasonable
time after the rights represented by this Option shall have been
so exercised.
4. The above provisions are, however, subject to the
following:
(a) In case the Company shall declare any dividend or
other distribution upon its outstanding capital stock payable in
capital stock or shall subdivide its outstanding shares of
capital stock into a greater number of shares, then the number of
shares of capital stock which may thereafter be purchased upon
the exercise of the rights represented hereby shall be increased
in proportion to the increase through such dividend or
subdivision and the purchase price per share shall be decreased
in such proportion. In case the Company shall at any time
combine the outstanding shares of its capital stock into a
smaller number of shares, the number of shares of capital stock
which may thereafter be purchased upon the exercise of the rights
represented hereby shall be decreased in proportion to the
decrease through such combination and the purchase price per
share shall be increased in such proportion.
(b) In case the Company shall declare a dividend upon
the capital stock payable otherwise than out of earnings or
surplus (other than paid-in surplus) or otherwise than in capital
stock, the purchase price per share in effect immediately prior
to the declaration of such dividend shall be reduced by an amount
equal, in the case of a dividend in cash, to the amount (hereof
payable) per share of the capital stock or, in the case of any
other dividend, to the fair value thereof per share of the
capital stock as determined by the Board of Directors of the
Company. For the purposes of the foregoing a dividend other than
in cash shall be considered payable out of earnings or surplus
(other than paid-in surplus) only to the extent that such
earnings or surplus are charged an amount equal to the fair value
of such dividend as determined by the Board of Directors of the
Company. Such reductions shall take effect as of the date on
which a record is taken for the purpose of such dividend, or, if
a record is not taken, the date as of which the holders of
capital stock of record entitled to such dividend are to be
determined.
(c) If any capital reorganization or reclassification
of the capital stock of the Company, or consolidation or merger
of the Company with another corporation, or the sale of all or
substantially all of its assets to another corporation shall be
effected, then, as a condition of such reorganization,
reclassification, consolidation, merger or sale, lawful and
adequate provision shall be made by Optionor whereby Optionee
shall thereafter have the right to purchase and receive from
Optionor upon the basis and upon the terms and conditions
specified in this Option and in lieu of the shares of the capital
stock of the Company immediately theretofore purchasable and
receivable upon the exercise of the rights represented hereby,
such shares of stock, securities or assets as may be issued or
payable with respect to or in exchange for a number of
outstanding shares of such capital stock equal to the number of
shares of such capital stock immediately theretofore purchasable
and receivable upon the exercise of the rights represented hereby
had
2
such reorganization, reclassification, consolidation, merger
or sale not taken place, and in any such case appropriate
provision shall be made with respect to the rights and interests
of the Optionee to the end that the provisions hereof (including
without limitation provisions for adjustment of the purchase
price per share and of the number of shares purchasable upon the
exercise of this Option) shall thereafter be applicable, as
nearly as may be in relation to any shares of applicable, as
nearly as may be in relation to any shares of stock, securities
or assets thereafter deliverable upon the exercise hereof. Any
such shares of stock, securities or assets which the Optionee
hereof may be entitled to purchase pursuant to this paragraph (c)
shall be included within the "capital stock" as used herein.
(d) Upon any adjustment of the number of shares of
capital stock which may be purchased upon the exercise of the
rights represented hereby and/or of the purchase price per share,
then and in each such case the Optionor shall give written notice
thereof, by first class mail, postage prepaid, addressed to the
Optionee at the address of such Optionee as shown herein, which
notice shall state the purchase price per share resulting from
such adjustment and the increase or decrease, if any, in the
number of shares purchasable at such price upon the exercise of
this Option, setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based.
5. Optionee represents that this Option is being acquired
with no present intention of selling or distributing any capital
stock received upon the exercise hereof, unless registered under
federal and applicable state laws or pursuant to exemptions from
such registration.
6. This Option is personal to Optionee and may not be
sold, transferred or assigned to any person whatsoever. This
Option shall inure to the benefit of Optionee's heirs, successors
and assigns for the sole purpose of the right to exercise said
Option, subject to the time limitation in Section 2 hereof.
Neither this Option, nor the shares to be acquired
hereunder, have been registered under the Securities Act of 1933,
as amended, or the laws of any other jurisdiction, and neither
this Option nor the shares to be acquired hereunder may be
offered, sold, transferred, pledged, hypothecated or otherwise
disposed of unless so registered, or unless an exemption from
registration is available pursuant to law.
The sale, assignment or other disposition of this Option and
the shares to be acquired hereunder are further restricted by
Rule 144, promulgated by the Securities and Exchange Commission.
The Optionee accepts and receives such securities without a
view to the distribution of same.
Before any transfer in connection with the resale of this
Option, or sale of the shares issuable to be acquired hereunder,
written approval must first be obtained from counsel for the
Optionor and counsel for the Company, and such approval will be
based upon compliance with the requirements of the Securities Act
of 1933 and appropriate state law.
3
7. (a) Optionor agrees that if, and on each occasion that,
subsequent to the date hereof and prior to December 12, 1996, the
Board of Directors of the Company shall authorize the filing of a
registration statement (a "Registration Statement") under the
Securities Act of 1933, as amended (the "Act") or a qualification
pursuant to Regulation A thereunder (a "Qualification"), in
connection with the proposed offer of any of the capital stock by
it or any of its shareholders for cash (other than an offering
solely to employees of the Company), Optionor shall use its best
efforts to cause the Company (i) to promptly notify Optionee that
such Registration Statement or Qualification will be filed and,
if not detrimental to the Company's interests, that the capital
stock then held by the Optionee or subject to the Option granted
herein will, at the Optionor's or Optionee's request, be included
in such Registration Statement or Qualification, (ii) if not
detrimental to the Company's interests, to include in the
securities covered by such Registration Statement or
Qualification all capital stock which it has been so requested to
include, (iii) if not detrimental to the Company's interests, to
use the Company's best efforts to cause such Registration
Statement or Qualification to become effective as soon as
practicable and (iv) if not detrimental to the Company's
interests, to take all other action necessary under any federal
or state law or regulation of any governmental authority to
permit all capital stock which it has been so requested to
include in such Registration Statement or include in such
Registration Statement or Qualification to be sold or otherwise
disposed of, and will maintain such compliance with each such
federal and state law and regulation of any governmental
authority for ninety (90) days, unless the Company determines in
its best interests to maintain appropriate compliance in effect
for a longer period. The Optionee agrees that it will not sell
any of the capital stock pursuant to the Registration Statement
or Qualification other than by or through an underwriter selected
by the Company, if any. Notwithstanding the foregoing, if any
such offering is underwritten and the representative of the
underwriters notifies the Company in writing that the
underwriters can proceed with such offering only with respect to
a smaller number of shares of capital stock than the total number
proposed to be offered by the Company and others, then the number
of shares of capital stock proposed to be included in the
Registration Statement or Qualification by the Optionee together
with all other sellers, other than the Company, shall be reduced
pro rata by the amount necessary to reduce the offering to the
number of shares of capital stock which the representative of the
underwriters indicates in its notice to the Company. In the
event any of the capital stock subject to the Option is to be
sold as provided in this subparagraph (a), the Option shall be
exercisable to the extent necessary simultaneously with the
effectiveness of the Registration Statement or Qualification,
notwithstanding any other terms hereof.
(b) Whenever the Optionor is required pursuant to the
provisions of this Section 7 to use its best efforts to take
action pursuant to any federal or state law or regulation of
governmental authority to permit the sale or other disposition of
any capital stock, the Optionor shall use its best efforts to
cause the Company to (i) furnish Optionee with such copies of the
prospectus, including the preliminary prospectus, conforming to
the Act and such other documents as Optionee or each such
underwriter may reasonably request) in order to facilitate the
sale or distribution of the capital stock; (ii) use its best
efforts to register or qualify the capital stock covered by the
Registration Statement under the blue sky laws (to the extent
applicable) of such jurisdiction or jurisdictions as the Optionee
and each underwriter of the capital stock being sold shall
reasonably request; and (iii) take such other actions as may be
reasonably necessary or advisable to enable Optionee and such
underwriters to consummate the sale or distribution in such
4
jurisdiction or jurisdictions in which Optionee shall have
requested that the capital stock be sold; provided, however, that
the Company shall not be required to qualify as a foreign
corporation in any jurisdiction or to file a general consent to
service or process in any jurisdiction in any action other than
one arising out of the offering or sale of the capital stock.
Optionor agrees that the expenses of each Registration
Statement and Qualification referred to in subsection (a) hereof
which are not paid by the Company will be paid by the Optionor.
Any underwriter's discounts, if any, or brokerage commissions, if
any, applicable to the sale of shares of capital stock of
Optionee or shares subject to the Option granted herein shall be
borne by Optionee.
8. This Option shall be construed in accordance with the
laws of the State of Nevada.
9. Until December 12, 1996, should Optionee or his heirs,
successors and assigns, acquire the shares under this Option and
subsequently agree to sell all or a portion of the shares at a
price in excess of $3.00 per share, (subject to adjustment as
provided in Section 4 hereof), Optionee or his heirs, successors
and assigns, as the case may be, must immediately notify Optionor
in writing, and Optionee, or his heirs, successors and assigns,
as the case may be, grants to Optionor a right of first refusal
for a period of 7 days to purchase all or a portion of such
shares at a price equal to ninety percent (90%) of the closing
market price of the shares on the date of notice. The 7-day
period hereunder commences on the date Optionor receives the
written notice.
10. Optionee warrants and acknowledge that:
(a) Optionee has received and carefully reviewed the
Articles of Incorporation, as amended, of the Company and has
executed this Option with a knowledge and understanding of the
fundamental aspects of the investment and its risks, and in so
entering has relied solely on his/her own independent
investigation and his/her independent advisors, and has not
relied upon any other written materials or oral representations.
(b) Optionee has had an opportunity to obtain all
information which may be related to the grant of this Option and
the rights hereunder so as to make a reasonable investment
decision with regard to the entering into this Option.
(c) Optionee has been informed by Optionor that
neither the Option nor the shares issuable thereunder have been
registered under the Securities Act of 1933 or the Securities Act
of any other State, and may not be offered, sold or transferred
in the absence of such registration or an option of counsel for
the Company that an exemption from registration is available.
(d) Optionee is entering into this Option Agreement
and will acquire the shares issuable pursuant hereto for his/her
own investment, not on behalf of others, and not with a view to
resell or otherwise distribute the capital stock, will not sell
or otherwise distribute the capital stock without registration
under the Securities Act of 1933 or other applicable State
Securities Acts or exemptions therefrom.
(e) The Optionee understands that the Company and/or
Optionor will permit the transfer of the capital stock only if,
in the opinion of the Company's counsel and Optionor's
5
counsel, neither the sale nor the proposed transfer of such
capital stock will result in a violation of any applicable
Securities Law, Rule or Regulation.
(f) Optionee has been informed by Optionor and agrees
that (a) stock transfer notations may be made on the stock
transfer records of the Company with respect to the shares
related to this Agreement, and (b) that a legend will be placed
on any certificate or other document evidencing ownership of the
capital stock regarding the restrictions on transfer and sale of
the capital stock.
(g) Optionee represents that his/her financial
condition is presently adequate to justify this investment,
he/she, either alone or with his/her personal representative, has
sufficient knowledge and experience in investment and business
matters in order to evaluate this investment and he/she is aware
of the risks involved in any enterprises such as the Company.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed as of the 11th day of December, 1991.
OPTIONOR OPTIONEE
Xxxxxxx Xxxxxx, Inc.
By:
Xxxxxxx X. Xxxxxxx XX
President
0000 Xxxxx Xxxxxxx
Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
ADDRESS
SOCIAL SECURITY NUMBER
