INCENTIVE STOCK OPTION AGREEMENT
AGREEMENT made as of this 7th day of October 1996 by and between
American Casino Enterprises, Inc., a Nevada corporation having its principal
place of business at 0000 Xxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000
("Grantor"), and Xxxxxx X. Xxxxxxxxx, residing at 0000 Xxxxxx Xxxxxx , Xxx
Xxxxx, Xxxxxx 00000 ("Optionee").
W I T N E S S E T H:
WHEREAS, Optionee is presently employed by Grantor; and
WHEREAS, Grantor is desirous of increasing the incentive of Optionee to
exert Optionee's utmost efforts to improve the business of Grantor.
NOW, THEREFORE, in consideration of Optionee's continued service to
Grantor or any of its subsidiaries, and for other good and valuable
consideration, Grantor hereby grants to Optionee options to purchase common
stock of Grantor, $.01 par value ("Common Stock") on the following terms and
conditions:
1. Option.
Pursuant to its 1992 Stock Option Plan, as amended (the "Plan"),
Grantor hereby grants to Optionee an Incentive Stock Option, as such term is
defined in Section 422(b) of the Internal Revenue Code of 1986, as amended (the
"Code"), to purchase, at any time prior to 5:00 p.m. on October 6, 2001, up to
Four Hundred Thousand (400,000) fully paid and non-assessable shares of Common
Stock (the "Shares"), subject to the terms and conditions set forth below.
2. Purchase Price.
The purchase price shall be $1.38 per Share. Grantor shall pay all
original issue or transfer taxes on the exercise of the Optionee's option and
all other fees and expenses necessarily incurred by Grantor in connection
therewith.
3. Exercise of Option.
(a) Optionee shall notify Grantor in writing in person, by overnight
courier or by registered or certified mail, return receipt requested, addressed
to its principal office as to the number of Shares which Optionee desires to
purchase hereunder, which notice shall be accompanied by payment (by cash or
certified check) of the exercise price therefor as specified in Paragraph 2
above. As soon as practicable thereafter, Grantor shall at its principal office
tender to Optionee certificates issued in Optionee's name evidencing the Shares
purchased by Optionee.
(b) If the aggregate fair market value of all the stock with respect to
which Incentive Stock Options are exercisable for the first time by Optionee
during any calendar year and all other Incentive Stock Option plans of Grantor
or its affiliates exceeds $100,000.00, the grant of the Incentive Stock Option
hereunder shall not, to the extent of such excess, be deemed a grant of an
Incentive Stock Option but will instead
be deemed the grant of a Non-Qualified Stock Option under the Plan.
(c) The option granted hereunder may be exercised by Optionee
immediately.
4. Option Conditioned On Continued Employment.
(a) If the employment of Optionee shall be terminated for cause, or if
Optionee leaves such employment voluntarily, the options granted to Optionee
hereunder shall expire immediately upon such termination. If such employment
shall terminate otherwise than by reason of death, disability, voluntarily by
Optionee or for cause, such option may be exercised at any time within three (3)
months after such termination, subject to the provisions of subparagraph (d) of
this Paragraph 4.
(b) If Optionee dies (i) while employed by Grantor or a subsidiary or
parent corporation, or (ii) within three (3) months after the termination of
Optionee's employment other than voluntarily by Optionee or for cause, such
option, subject to the provisions of subparagraph (d) of this Paragraph 4, may
be exercised by a legatee or legatees of such option under Optionee's last will
or by Optionee's personal representatives or distributees at any time within one
(1) year after Optionee's death.
(c) If Optionee becomes disabled within the definition of Section
22(e)(3) of the Code while employed by Grantor or a subsidiary or parent
corporation, such option, subject to the provisions of subparagraph (d) of this
Paragraph 4, may be exercised at any time within one (1) year after the
termination of employment due to disability.
(d) An option may not be exercised pursuant to this Paragraph 4 except
to the extent that Optionee was entitled to exercise the option, or any part
thereof, at the time of termination of employment or death, and in any event may
not be exercised after the original expiration date of the option.
5. Divisibility and Non-Assignability of the Options.
(a) Optionee may exercise the options herein granted from time to time
during the periods of their respective effectiveness with respect to any whole
number of Shares included therein, but in no event may an option be exercised as
to less than one thousand (1,000) shares at any one time, except for the
remaining shares covered by the option if less than one thousand (1,000).
(b) Optionee may not give, grant, sell, exchange, transfer legal title,
pledge, assign or otherwise encumber or dispose of the options herein granted or
any interest therein, otherwise than by will or the laws of descent and
distribution, and these options, or any of them, shall be exercisable during
Optionee's lifetime only by Optionee.
6. Stock as Investment.
By accepting these options, Optionee agrees for Optionee, Optionee's
heirs and legatees that any and all Shares purchased hereunder shall be acquired
for investment purposes only and not for sale or distribution, and upon the
issuance of any or all of the Shares Optionee, or Optionee's heirs or legatees
receiving such shares, shall
deliver to Grantor a representation in writing, that the Shares are being
acquired in good faith for investment and not for sale or distribution, unless
such distribution is registered under the Securities Act of 1933, as amended
(the "Securities Act"). Grantor may place a "stop transfer" order with respect
to the Shares with its transfer agent and place an appropriate restrictive
legend on the stock certificate(s) evidencing the Shares, unless such shares are
registered for resale.
7. Restriction on Issuance of Shares.
Grantor shall not be required to issue or deliver any certificate for
Shares purchased upon the exercise of the option unless (a) the issuance of such
shares has been registered under the Securities Act, or counsel to Grantor shall
have given an opinion that such registration is not required; (b) approval, to
the extent required, shall have been obtained from any state regulatory body
having jurisdiction thereof; and (c) permission for the listing of such shares,
if required, shall have been given by NASDAQ and/or any national securities
exchange on which the Common Stock of Grantor is at the time of issuance listed.
8. Adjustments; Merger or Consolidation
(a) In the event of changes in the outstanding Common Stock of Grantor
by reason of stock dividends, stock splits, recapitalizations, mergers,
consolidations, combinations, or exchanges of shares, separations,
reorganizations, or liquidations, the number and class of shares as to which the
options may be exercised shall be correspondingly adjusted by Grantor. No
adjustment shall be made with respect to stock dividends or splits which do not
exceed 10% in any fiscal year, cash dividends or the issuance to stockholders of
Grantor of rights to subscribe for additional shares of Common Stock or other
securities. Anything to the contrary contained herein notwithstanding, the Board
of Directors of Grantor shall have the discretionary authority to take any
action necessary or appropriate to prevent these options from being disqualified
as "Incentive Stock Options" under the United States income tax laws then in
effect.
(b) Any adjustment in the number of Shares shall apply proportionately
to only the unexercised portion of an option granted hereunder. If fractions of
a share would result from any such adjustment, the adjustment shall be revised
to the next higher whole number of Shares so long as such increase does not
result in the holder of the option being deemed to own more than 5% of the total
combined voting power or value of all classes of stock of Grantor or its
subsidiaries.
(c) Notwithstanding anything contained herein to the contrary, a merger
or consolidation in which Grantor is not the surviving corporation, or a sale of
substantially all of Grantor's assets or capital stock shall cause the
unexercised options to terminate automatically, unless otherwise provided by the
Board of Directors.
9. No Rights in Option Stock.
Optionee shall have no rights as a shareholder in respect of Shares as
to which the options granted hereunder shall not have been exercised and payment
made as herein provided.
10. Effect Upon Employment.
This Agreement does not give Optionee any right to continued employment
by Grantor.
11. Binding Effect.
Except as herein otherwise expressly provided, this Agreement shall be
binding upon and inure to the benefit of the parties hereto, their successors
legal representatives and assigns.
12. Agreement Subject to Plan.
Notwithstanding anything contained herein to the contrary, this
Agreement is subject to, and shall be construed in accordance with, the terms of
the Plan, and in the event of any inconsistency between the terms hereof and the
terms of the Plan, the terms of the Plan shall govern.
13. Miscellaneous.
This Agreement shall be construed under the laws of the State of Nevada
applied to agreements made and to be performed entirely within such State.
Headings have been included herein for convenience of reference only, and shall
not be deemed a part of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the day and year first above written.
AMERICAN CASINO ENTERPRISES, INC.
By: /s/ Xxx X. Xxxxxx
Xxx X. Xxxxxx,
Secretary/Treasurer
ACCEPTED AND AGREED TO:
/s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
