AMERISTAR CASINOS, INC. AMENDED AND RESTATED NON-QUALIFIED STOCK OPTION AGREEMENT (Non-Qualified Stock Option Agreement Form 99-4)
EXHIBIT 10.12
AMERISTAR CASINOS, INC.
AMENDED AND RESTATED NON-QUALIFIED STOCK OPTION
AGREEMENT
(Non-Qualified Stock Option Agreement Form 99-4)
AMENDED AND RESTATED NON-QUALIFIED STOCK OPTION
AGREEMENT
(Non-Qualified Stock Option Agreement Form 99-4)
Name of Optionee:
|
Xxxxx Xxxxxxx | |||
Date of Grant:
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December 16, 2004 | |||
No. of Shares:
|
105,000 | |||
Exercise Price:
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$42.60 | |||
Expiration Date:
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December 16, 2011 | |||
[Remainder of page intentionally left blank.]
THIS AGREEMENT is made as of the date set forth above, between AMERISTAR CASINOS, INC., a
Nevada corporation (hereinafter called the “Company”), and the optionee named above (hereinafter
called the “Optionee”), and amends and restates in its entirety the Non-Qualified Stock Option
Agreement, dated as of December 16, 2004, between the Company and the Optionee.
RECITAL
The Committee (as defined below) responsible for administering the Ameristar Casinos, Inc.
1999 Stock Incentive Plan, as amended (the “Plan”), has determined that it is to the advantage and
interest of the Company and its stockholders to grant, pursuant to the Plan, the option provided
for herein to the Optionee as an inducement to remain in the service of the Company or Related
Company (as defined for purposes of the Plan) and as an incentive for increased effort during such
service.
As used herein, the term “Committee” shall mean the Compensation Committee or such other
committee of directors appointed by the Board of Directors of the Company to administer the Plan,
or, if no committee has been appointed for such purpose, reference to the “Committee” shall be
deemed a reference to the Board of Directors of the Company. If the Optionee is not a person
subject to Section 16 of the Securities Exchange Act of 1934, as amended, the term “Committee”
shall extend to and include any officer of the Company to which the Committee has properly
delegated any of its authorities to administer the Plan.
In consideration of the mutual covenants herein contained, the parties agree as follows:
1. Grant of Option. The Company hereby grants to the Optionee the right and option
(the “Option”) to purchase on the terms and conditions set forth herein all or any part of an
aggregate of the number shares (the “Shares”) of the Common Stock of the Company (whether
authorized and unissued or treasury shares) identified above next to the heading “No. of Shares” at
the purchase price per Share identified above next to the heading “Exercise Price” as the Optionee
may, from time to time, elect. The Option shall be 100% vested and exercisable on the grant date.
The Option shall expire on the date set forth above next to the heading “Expiration Date” unless
terminated sooner in accordance with the provisions of Section 5 below.
Nothing contained herein shall be construed to limit or restrict the right of the Company or
any of its subsidiaries to terminate the Optionee’s employment or other Relationship at any time,
with or without cause, or to increase or decrease the Optionee’s compensation from the rate in
existence at the time the Option is granted. As used herein, the term “Relationship” shall mean
that the Optionee is or has agreed to become an officer, director, employee, consultant, adviser or
independent contractor of the Company or any Related Company.
2. Term of Option. The right to exercise the Option granted hereunder, to the extent
unexercised, shall remain in effect until the seventh anniversary of the grant of this Option,
unless another date is specified in Section 1 hereof or unless sooner terminated in accordance with
Section 5 hereof.
3. Method of Exercise.
(a) To the extent that the Option has become exercisable hereunder, the Option may be
exercised from time to time by written notice to the Company stating the number of Shares with
respect to which the Option is being exercised, together with payment in full of the purchase price
therefor. Payment of the purchase price for such Shares shall be made (i) in cash, (ii) by
certified or cashier’s check payable to the order of the Company, (iii) other cash equivalents
acceptable to the Committee in its sole discretion, (iv) in the Committee’s sole discretion, by
delivery of shares of the Common Stock of the Company already owned by the Optionee or subject to
vested stock options under the Plan, subject to such delivery being permissible under the General
Corporation Law of the State of Nevada, including without limitation Section 78.288 thereof, or (v)
any combination of the foregoing. If requested by the Committee, prior to the delivery of any
Shares, the Optionee, or any other person entitled to exercise the Option, shall supply the
Committee with a representation that the Shares are not being acquired with a view to distribution
and will be sold or otherwise disposed of only in accordance with applicable federal and state
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statutes, rules and regulations. As soon after the notice of exercise as the Company is
reasonably able to comply, the Company shall, without transfer or issue tax to the Optionee or
other person entitled to exercise the Option, deliver to the Optionee or such other person, at the
principal office of the Company or such other place as shall be mutually acceptable, a certificate
or certificates for the Shares being purchased.
(b) If payment is made with shares of Common Stock of the Company already owned by the
Optionee, the Optionee, or other person entitled to exercise the Option, shall deliver to the
Company with the notice of exercise certificates representing the number of shares of Common Stock
in payment for the Shares, duly endorsed for transfer to the Company. In addition, if requested by
the Committee, prior to the acceptance of such certificates in payment for the Shares, the
Optionee, or any other person entitled to exercise the Option, shall supply the Committee with a
written representation and warranty that he or she has good and marketable title to the shares
represented by the certificate(s), free and clear of liens and encumbrances. The value of the
shares of Common Stock so tendered in payment for the Shares being purchased shall be their Fair
Market Value Per Share (as defined below) on the date of the Optionee’s notice of exercise.
(c) If payment is to be made in shares of Common Stock subject to vested stock options under
the Plan, the per share value attributable to the shares underlying the stock option(s) to be
surrendered or canceled shall be the Fair Market Value Per Share of such shares less the exercise
price per share of such option(s). The Company and the Optionee or other person entitled to
exercise the Option shall execute and deliver such instruments or modifications of stock options as
shall be necessary to give effect to such an exercise of the Option.
(d) If for any reason a purported exercise of the Option providing for payment to be made in
whole or in part through the delivery of shares of Common Stock already owned or underlying vested
stock options is rejected by the Committee or is otherwise not permitted, such purported exercise
shall not be effective unless, following notice thereof from the Company, the
Optionee or other person entitled to exercise the Option promptly pays the exercise price in
an acceptable form.
(e) If the Optionee or other person entitled to exercise the Option desires to exercise the
Option with funds borrowed from a broker-dealer in a margin transaction under Regulation T of the
Board of Governors of the Federal Reserve System, and such method of exercise is acceptable to the
Committee in its sole discretion, the Optionee’s notice of exercise may be delivered to the Company
by such broker-dealer and the Company may deliver the certificate(s) for the Shares being purchased
to such broker-dealer on behalf of the Optionee or other person entitled to exercise the Option.
(f) For purposes hereof, the “Fair Market Value Per Share” of the Company’s Common Stock shall
mean, if the Common Stock is publicly traded, the mean between the highest and lowest quoted
selling prices of the Common Stock on such date or, if not available, the mean between the bona
fide bid and asked prices of the Common Stock on such date. In any situation not covered above,
the Fair Market Value Per Share shall be determined by the Committee in accordance with one of the
valuation methods described in Section 20.2031-2 of the Federal Estate Tax Regulations (or any
successor provision thereto), which determination shall be final, binding and conclusive, which
determination shall be final, binding and conclusive.
(g) Notwithstanding the foregoing, the Company shall have the right to postpone the time of
exercise of the Option or the delivery of the Shares for such period as may be required for the
Company with reasonable diligence (i) to comply with any applicable listing, registration or
qualification requirements of any national securities exchange or over-the-counter market or under
any federal or state law or (ii) to obtain the consent or approval of any governmental regulatory
body. In addition, in connection with any exercise of the Option, the Committee may require the
Optionee or other person entitled to exercise the Option to agree not to dispose of any of the
Shares acquired upon exercise thereof except upon the satisfaction of specified conditions which
the Committee, in its sole discretion, then deems necessary or desirable in connection with any
then existing and effective requirement or interpretation of any applicable federal or state
securities law, rule or regulation.
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(h) The Option may be exercised for less than the total number of Shares for which the Option
is then exercisable, provided that a partial exercise may not be for less than 100 Shares, except
in the final year of the term of the Option, and shall not, in any event, include any fractional
Shares.
4. Tax Withholding. The Optionee shall, no later than the date as of which any value
attributed to the Option first becomes includible in the Optionee’s gross income for applicable tax
purposes, pay to the Company, or make arrangements satisfactory to the Committee (which in the sole
discretion of the Committee may include delivery of shares of Common Stock already owned by the
Optionee or subject to awards under the Plan subject to and in accordance with the provisions of
Section 3(b) or Section 3(c), as applicable) regarding payment of, any federal, state, local or
other taxes of any kind required by law to be withheld with respect thereto, to enable the Company
to claim a
deduction in connection with the exercise of the Option or otherwise to satisfy any legal
requirements. The obligations of the Company hereunder shall be conditional on such payment or
arrangements, and the Company (and, where applicable, any Related Company), shall, to the extent
permitted by law, have the right to deduct any such taxes from any payment of any kind otherwise
due to the Optionee.
5. Termination of Option.
(a) If the Optionee ceases to have a Relationship for any reason other than the Optionee’s
death or Permanent Disability (as defined in Section 5(d)), the Option shall terminate 90 days from
the date on which such Relationship terminates unless the Optionee has resumed or initiated a
Relationship and has a Relationship on such date. During such 90-day period, the Optionee may
exercise the Option but only to the extent the Option was exercisable on the date of termination of
the Optionee’s Relationship and provided that the Option has not expired in accordance with Section
2 or otherwise terminated as provided herein. A leave of absence approved in writing by the
Committee shall not be deemed a termination of Relationship for purposes of this Section 5, but the
Option may not be exercised during any such leave of absence, except during the first 90 days
thereof. Notwithstanding the foregoing, if the Relationship is terminated for cause (as defined in
Section 5(d)), the Option shall terminate upon the termination of the Relationship.
(b) For purposes hereof, termination of Optionee’s Relationship for reasons other than death
or Permanent Disability shall be deemed to take place upon the earliest to occur of the following:
(i) the date of the Optionee’s retirement from employment under the normal retirement policies of
the Company or any Related Company; (ii) the date of the Optionee’s retirement from employment with
the approval of the Committee because of disability other than Permanent Disability; (iii) the date
the Optionee receives notice or advice that the Optionee’s employment or other Relationship is
terminated; (iv) the date the Optionee ceases to render the services for which the Optionee was
employed, engaged or retained by the Company or any Related Company (absences for temporary
illness, emergencies and vacations or leaves of absence approved in writing by the Committee
excepted); or (v) in the case of a director of the Company, the date on which such person ceases to
be a director of the Company unless such person has an other Relationship at such time. The fact
that the Optionee may receive payment from the Company or any Related Company after termination for
vacation pay, for services rendered prior to termination, for salary in lieu of notice or for other
benefits shall not affect the termination date.
(c) If the Optionee shall die at a time when the Optionee is in a Relationship or if the
Optionee shall cease to have a Relationship by reason of Permanent Disability, the Option shall
terminate one year after the date of the Optionee’s death or termination of Relationship due to
Permanent Disability unless by its terms it shall expire before such date or otherwise terminate as
provided herein, and shall only be exercisable to the extent that it would have been exercisable on
the date of the Optionee’s death or the Optionee’s termination of Relationship due to Permanent
Disability. In the case of death, the Option may be exercised by the person or persons to whom the
Optionee’s rights under the Option shall pass by will or by the laws of descent and distribution.
(d) As used herein, the term “Permanent Disability” shall mean termination of a Relationship
with the Company or any Related Company with the consent of the Company or such Related Company by
reason of permanent and total disability within the meaning of Section 22(e)(3) of the Internal
Revenue Code of 1986, as amended. As used herein, the term “for cause” shall mean that the
Relationship is terminated by the Company or a Related Company due to (i) the commission by the
Optionee of a substantial violation, through intentional conduct
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or through a pattern of behavior
not corrected within a reasonable period of time after written notice to the Optionee by the
Company or such Related Company of such behavior (in either case, whether by action or omission),
of the Optionee’s duties on behalf of the Company or a Related Company or the workplace policies or
rules of the Company or a Related Company which conduct or behavior actually results in substantial
harm to the Company or a Related Company or could reasonably be expected to put personnel of the
Company or a Related Company in serious jeopardy of imminent harm to their safety, health or
well-being or to cause substantial harm to the business of the Company or a Related Company or (ii)
the commission by the Optionee of any act(s) or omission(s) constituting dishonesty, a felony or
fraud or (iii) the failure of the Optionee to satisfy any requirements under applicable gaming laws
or regulations for the continuance of the Optionee’s Relationship with the Company or such Related
Company. Notwithstanding the foregoing sentence, in the event of any conflict between the
definition of “for cause” set forth above and the definition of “for cause” or “cause” in any
employment agreement Optionee may have with the Company or a Related Company, the definition of
“for cause” or “cause” in such employment agreement shall control to the extent that it imposes a
broader definition of such term(s). For purposes of the Option, whether a Relationship is or has
been terminated “for cause” shall be finally determined by the Committee.
6. Adjustments. In the event of any merger, reorganization, consolidation, sale of
substantially all assets, recapitalization, stock dividend, stock split, spin-off, split-up,
split-off, distribution of assets or other change in corporate structure affecting the Company’s
Common Stock, a substitution or adjustment, as may be determined to be appropriate by the Committee
in its sole discretion, shall be made in the number of shares subject to the Option and the
exercise price under the Option; provided, however, that no such adjustment or substitution shall
increase the aggregate value of the Option and no such adjustment or substitution shall result in
the Company being required to sell or issue any fractional Shares.
7. Change in Control; Corporate Transaction. In the event of a Change in Control
(as that term is defined in the Plan), any portion of the Option which is not otherwise fully
vested and exercisable with respect to all of the Shares at that time subject to the Option shall
automatically accelerate so that the Option shall, immediately upon the effective time of the
Change in Control, become exercisable for all the Shares at the time subject to the Option and may
be exercised for any or all of those Shares as fully vested shares of Common Stock of the Company.
In the event of a Corporate Transaction (as that term is defined in the Plan), any portion of the
Option which is not otherwise fully vested and exercisable with respect to all of the Shares at
that time subject to the Option shall automatically accelerate so that the Option shall,
immediately prior to the effective time of the Corporate Transaction, become exercisable for all
the Shares at the time subject to the Option and may be exercised for any or all of those Shares as
fully vested shares of Common Stock of the Company.
8. Provisions Regarding Transferability. The Optionee may transfer the Option to the
Optionee’s children, grandchildren or spouse (“Immediate Family”), to one or more trusts for the
benefit of the Optionee’s Immediate Family members, or to one or more partnerships or limited
liability companies in which such Immediate Family members are the only partners or members only
upon the express written consent of the Committee, and provided the Optionee does not receive any
consideration in any form whatsoever for such transfer other than the receipt of an interest in the
trust, partnership or limited liability company to which the Option is transferred. Upon any such
transfer of the Option, the Option shall continue to be subject to the terms and conditions as were
applicable to the Option immediately prior to the transfer thereof. Except as expressly provided
in the first sentence of this Section 8, the Option is not assignable or transferable by the
Optionee, either voluntarily or by operation of law, otherwise than by will or by the laws of
descent and distribution, and is exercisable, during the Optionee’s lifetime, only by the Optionee.
9. No Stockholder Rights. The Optionee or other person entitled to exercise the
Option shall have no rights or privileges as a stockholder with respect to any Shares subject
hereto until the Optionee or such person has become the holder of record of such Shares, and no
adjustment (except such adjustments as may be effected pursuant to the provisions of Section 6
hereof) shall be made for dividends or distributions of rights in respect of such Shares if the
record date is prior to the date on which the Optionee or such person becomes the holder of record.
10. Investment Representation. The Optionee hereby represents that the Option and any
Shares purchased hereunder are being acquired for the Optionee’s own account and not with a view to
or for sale in
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connection with any distribution thereof except as may be permitted by the
Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
11. Conditions to Issuance of Shares. THE COMPANY’S OBLIGATION TO ISSUE OR DELIVER
SHARES OF ITS COMMON STOCK UPON EXERCISE OF THE OPTION IS EXPRESSLY CONDITIONED UPON THE COMPLETION
BY THE COMPANY OF ANY REGISTRATION OR OTHER QUALIFICATION OF SUCH SHARES UNDER ANY STATE AND/OR
FEDERAL LAW OR RULINGS OR REGULATIONS OF ANY GOVERNMENT REGULATORY BODY OR THE MAKING OF SUCH
INVESTMENT REPRESENTATIONS OR OTHER REPRESENTATIONS AND AGREEMENTS BY THE OPTIONEE (OR ANY PERSON
ENTITLED TO EXERCISE THE OPTION) IN ORDER TO COMPLY WITH THE REQUIREMENTS OF ANY EXEMPTION FROM ANY
SUCH REGISTRATION OR OTHER QUALIFICATION OF SUCH SHARES WHICH THE COMMITTEE SHALL, IN ITS SOLE
DISCRETION, DEEM NECESSARY OR ADVISABLE. SUCH REQUIRED REPRESENTATIONS AND AGREEMENTS MAY INCLUDE
REPRESENTATIONS AND AGREEMENTS THAT THE OPTIONEE, OR ANY OTHER PERSON ENTITLED TO EXERCISE THE
OPTION, (A) IS NOT PURCHASING SUCH SHARES FOR DISTRIBUTION AND (B) AGREES TO HAVE PLACED UPON THE
FACE AND/OR REVERSE OF ANY CERTIFICATES FOR SUCH SHARES A LEGEND SETTING FORTH ANY REPRESENTATIONS
AND AGREEMENTS WHICH HAVE BEEN GIVEN TO THE COMMITTEE OR A REFERENCE THERETO AND STATING THAT,
PRIOR TO MAKING
ANY SALE OR OTHER DISPOSITION OF ANY SUCH SHARES, THE OPTIONEE, OR ANY OTHER PERSON ENTITLED
TO EXERCISE THE OPTION, WILL GIVE THE COMPANY NOTICE OF INTENTION TO SELL OR DISPOSE OF THE SHARES
NOT LESS THAN FIVE DAYS PRIOR TO SUCH SALE OR DISPOSITION.
12. Optionee Subject to Section 16. If the Optionee is a person subject to Section 16
of the Securities Exchange Act of 1934, as amended, and if for any reason the Option has not been
approved in the manner provided for in clause (d)(1) or (d)(2) of Rule 16b-3 of the Securities and
Exchange Commission, neither the Option (except upon its exercise) nor the Common Stock underlying
the Option may be disposed of by the Optionee until six months have elapsed following the date of
grant of the Option, unless the Committee otherwise specifically permits such disposition.
13. Method of Acceptance. This Agreement is addressed to the Optionee in duplicate
and shall not be effective until the Optionee executes the acceptance below and returns one copy to
the Company, thereby acknowledging that the Optionee has read and agreed to all the terms and
conditions of this Agreement and the Plan. The Optionee hereby acknowledges and agrees that the
acceptance of the Option constitutes satisfaction in full of any and all pre-existing
understandings or commitments between the Company and Optionee relating to Optionee’s right to
acquire equity securities of the Company.
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14. Plan Terms. The Option shall be subject to and governed by the terms and
provisions of the Plan, which by this reference are incorporated herein. In the event of any
conflict between the provisions of this Agreement and the Plan, the Plan shall govern. All
determinations and interpretations thereof made by the Committee shall be conclusive and binding on
all parties hereto and upon their successors and assigns.
EXECUTED as of the 28th day of October, 2005.
| AMERISTAR CASINOS, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
ACCEPTED:
| Xxxxx X. Xxxxxxx by X. Xxxxxx | Nov. 1, 2005 | |
Signature of Optionee
|
Date |
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On this 1st day of November, 2005, Xxxxx X. Xxxxxxx directed Xxxxxx Xxxxxx, in his presence as well as our own, to sign the foregoing
document as “Xxxxx X. Xxxxxxx”. Upon viewing the signature as signed by Xxxxxx Xxxxxx and in our presence, Xxxxx X. Xxxxxxx declared that he adopted it as his own
signature.
| /s/ Xxxxx Xxxxxxxx | ||
| Witness | ||
| /s/ Xxxxxx X. Xxxxxxx | ||
| Witness |
STATE OF NEVADA
|
) | |||||
| ) | ss. | |||||
COUNTY OF XXXXX
|
) |
I, Xxxxx Xxxxxx, a Notary Public in and for said county and state, do hereby certify that Xxxxx X. Xxxxxxx personally appeared before
me and is known or identified to me to be the person whose name is subscribed to the within instrument. Xxxxx X. Xxxxxxx, who being unable due to physical incapacity
to sign his name or offer his xxxx, did direct Xxxxxx Xxxxxx to sign the foregoing document as “Xxxxx X. Xxxxxxx”. Xxxxx X. Xxxxxxx, after viewing his name as signed by
Xxxxxx Xxxxxx thereupon adopted it as his own by acknowledging to me his intention to so adopt as if he had personally executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this 1st day of November, 2005
| /s/ Xxxxx Xxxxxx | ||
| Notary Public | ||
Residing at
|
Las Vegas | |
My Commission Expires
|
||
5/9/2009
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