EXHIBIT 4.1
MULTIMEDIA GAMES, INC.
FORM OF AD HOC STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT, entered into this ___ day of __________,
200__, by and between Multimedia Games, Inc., a Texas corporation (the
"Company"), and the undersigned Employee (the "Employee") to the Company (or one
of its subsidiaries) (the Company and its subsidiaries herein together referred
to as the "Company").
WITNESSETH:
WHEREAS, the Company desires to grant the Employee a stock option to
acquire shares of the Company's common stock, $.01 par value per share ("Common
Stock"); and
WHEREAS, it is intended that this Stock Option be a Non-Qualified Stock
Option.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the Company and the Employee hereby
agree as follows:
1. Grant of Option. (a) The Company hereby grants to the Employee an option
(the "Option") to purchase all or any part of an aggregate of _____________
shares of Common Stock (the "Shares") on the terms and conditions hereinafter
set forth.
(b) It intended that this Option shall be a Non-Qualified Stock Option.
2. Purchase Price. The purchase price ("Purchase Price") for the Shares
covered by this Option shall be $_________ per Share.
3. Time of Exercise of Option; Exercisability. This Option shall become
exercisable with respect to twenty-five percent (25%) of the Shares on the date
that is the first year anniversary of the date of this Agreement, as to an
additional twenty-five percent (25%) of the Shares on the date that is the
second year anniversary of the date of this Agreement, as to an additional
twenty-five percent (25%) of the Shares on the date that is the third year
anniversary of the date of this Agreement and as to an additional twenty-five
percent (25%) of the Shares on the date that is the fourth year anniversary of
the date of this Agreement; provided that on each such date the Employee is then
is an Employee of the Company or one of its subsidiaries or, if not a Employee,
Employee is then a consultant to the Company or one of its subsidiaries. It is
the intent of this Agreement that should the Employee remain continuously
engaged by the Company either as an Employee or as an independent consultant of
the Company then this Option shall not terminate and shall continue to vest in
the Employee in accordance with the first sentence of this Section 3.
Notwithstanding the foregoing, upon the occurrence of a "Change of Control"
(as hereinafter defined), (i) each Option that is then exercisable on the date
of such event shall remain exercisable until the 90th day following such event;
and (ii) each Option that is not then exercisable on the date of such
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event shall nevertheless become immediately exercisable as to all of the Shares
subject to such Option and shall remain exercisable until the 90th day following
such event.
"Change of Control" shall mean (A) the merger or consolidation of the
Company with any Person (other than a merger or consolidation to change the
place of domicile of the Company) where the Company is not the surviving entity
(or survives only as the subsidiary of another Person), or (B) the sale of all
or substantially all of the Company's assets to any Person, or (C) the
dissolution of the Company, or (D) if any Person together with its affiliates
shall become, directly or indirectly, the beneficial owner of at least 50.01% of
the voting stock of the Company.
4. Terms Of Options; Exercisability. (a) This Option shall expire on the
date that is the tenth year anniversary of the date of this Agreement, but shall
be subject to earlier termination as provided in Sections 4(b) through 4(d)
below.
(b) In the event of the termination of the Employee's employment (or
consultant) relationship with the Company or one of its subsidiaries for Cause
(as hereinafter defined), this Option shall immediately terminate with respect
to all of the Shares, including any Shares subject to options then exercisable
on the date of such termination.
For purposes of this Agreement, the term "Cause" shall mean (A) the
commission by the Employee (or Consultant) of an act of dishonesty, fraud or
embezzlement (including the unauthorized disclosure of confidential or
proprietary information of the Company or its subsidiaries) which results in, or
reasonably could be expected to result in, material injury to the Company or its
subsidiaries, (B) a felony conviction of, or plea of guilty or nolo contendre to
a felony by, the Employee (or Consultant), (C) willful misconduct by the
Employee (or Consultant) as an Employee (or Consultant) of the Company or its
subsidiaries which results in, or reasonably could be expected to result in,
material injury to the Company or its subsidiaries, (D) the willful failure of
the Employee (or Consultant) to render services to the Company or its
subsidiaries which failure amounts to a material neglect of his duties to, and
results in material injury to, the Company or its subsidiaries, or (E) any other
act or omission which is materially injurious to the financial condition or
business reputation of the Company or its subsidiaries, as determined in each
case in good faith by the Company's Board of Directors.
(c) In the event of the termination of the Employee's employment (or
consultant) relationship with the Company or one of its subsidiaries due to the
death or "disability" (as hereinafter defined) of the Employee, this Option
shall terminate:
(i) with respect to any Shares subject to options then exercisable on
the date of such termination, on the 365th day following such termination;
and
(ii) with respect to any Shares subject to options not then
exercisable on the date of such termination, on the date of such
termination.
For purposes of this Agreement, the term "disability" shall mean the
permanent disability of the Employee in accordance with the then-applicable
provisions of the disability policy of the Company as in effect from time to
time or, if no such policy is in effect, in accordance with the definition of
disability under the Social Security Act of 1935, as amended.
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(d) In the event of the termination of the Employee's employment (or
consultant) relationship with the Company or one of its subsidiaries for any
other reason (i.e., other than for Cause or the death or disability of Employee)
this Option shall terminate:
(i) with respect to any Shares subject to options then exercisable on
the date of such termination, on the 90th day following such termination;
and
(ii) with respect to any Shares subject to options not then
exercisable on the date of such termination, on the date of such
termination.
5. Manner of Exercise of Option. (a) To the extent that the right to
exercise this Option has vested and is in effect, this Option may be exercised
in full or in part by giving written notice to the Company stating the number of
Shares exercised and accompanied by payment in full for the Purchase Price of
such Shares. Payment may be made, at the election of the Employee,
(i) in cash (or by authorizing a third party to sell all or a portion
of the Shares being purchased on the condition that an appropriate portion
of such sale proceeds are remitted to the Company), or
(ii) upon collection by check payable to the Company, or
(iii) upon the delivery to the Company of shares of Common Stock owned
by the Optionee having a fair market value on the date of delivery equal to
the aggregate exercise price of the Shares being purchased;
provided that, Employee shall be required to pay to the Company an amount of
cash at least equal to the Company's obligation to withhold for federal and
state income taxes. Upon such exercise, delivery of a certificate for paid-up,
non-assessable Shares shall be made at the principal office of the Company to
the person exercising this Option, not more than thirty (30) days from the date
of receipt of the notice by the Company.
(b) The Company shall at all times during the term of this Option reserve
and keep available such number of Shares of its Common Stock as will be
sufficient to satisfy the requirements of this Option.
(c) Notwithstanding the provision of Section 5(a) of this Agreement, the
Company may delay the issuance of Shares covered by the exercise of this Option
and the delivery of a certificate for such Shares until one of the following
conditions shall be satisfied:
(i) The Shares with respect to which this Option has been exercised
are at the time of the issue thereof effectively registered or qualified
under applicable federal and state securities acts now in force or as
hereafter amended; or
(ii) Counsel for the Company shall have given an opinion, which
opinion shall not be unreasonably conditioned or withheld, that such Shares
are exempt from registration and qualification under applicable federal and
state securities acts now in force or as hereafter amended. The Company
shall use its best efforts to obtain a favorable opinion to the foregoing
effect.
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6. Non-Transferability. The right of the Employee to exercise this Option
shall not be assignable or transferable by the Employee otherwise than by will
or the laws of descent and distribution, and this Option may be exercised during
the lifetime of the Employee only by the Employee. Any transfer or purported
transfer of this Option in violation of the preceding sentence shall be null and
void and without effect, including without limitation any purported transfer or
assignment, whether voluntary or by operation of law, pledge, hypothecation or
other disposition contrary to the provisions hereof, or levy of execution,
attachment, trustee process or similar process, whether legal or equitable, upon
this Option.
7. Restrictions. (a) In the event that for any reason the Shares to be
issued upon exercise of this Option shall not be effectively registered under
the Securities Act of 1933 (the "1933 Act"), upon any date on which this Option
is exercised in whole or in part, the person exercising this Option shall give a
written representation to the Company in the form attached hereto as Exhibit 1
and the Company shall place an "investment legend", as described in Exhibit 1
hereto, upon any certificate for the Shares issued by reason of such exercise.
(b) The Company shall be under no obligation to qualify Shares or to cause
a registration statement or a post-effective amendment to any registration
statement to be prepared for the purposes of covering the issue of Shares.
8. Recapitalizations, Reorganizations, Changes in Control and the Like.
Subject to the provisions of Section 3 of this Agreement relating to a Change of
Control, in the event that the outstanding shares of the Common Stock of the
Company are changed into or exchanged for a different number or kind of shares
or other securities of the Company or of another Person by reason of any
reorganization, merger, consolidation, recapitalization, reclassification, stock
split-up, combination of shares, dividends payable in capital stock, appropriate
adjustment shall be made in the number and kind of Shares or other securities as
to which this Option shall be exercisable. Such adjustment shall be made without
change in the total purchase price applicable to the unexercised portion of this
Option.
9. No Special Employment Rights. Nothing contained in the Plan or this
Option shall be construed or deemed by any person under any circumstances to
bind the Company to continue the employment (or consulting relationship) of the
Employee for the period within which this Option may be exercised.
10. Rights as a Shareholder. The Employee shall have no rights as a
shareholder with respect to any Shares which may be purchased by exercise of
this Option unless and until a certificate or certificates representing such
Shares are duly issued and delivered to the Employee and the Employee has
executed and delivered to the Company any and all agreements, instruments and
other documents required by the Company pursuant to Section 7(a) hereof. Except
as otherwise expressly provided in the Plan, no adjustment shall be made for
dividends or other rights for which the record date is prior to the date such
stock certificate is issued.
11. Withholding Taxes. Whenever Shares are to be issued upon exercise of
this Option, the Company shall have the right to require the Employee to remit
to the Company an amount sufficient to satisfy all Federal, state and local
withholding tax requirements prior to the delivery of any certificate or
certificates for such Shares. In all events Employee shall pay such withholding
tax in cash to the Company.
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12. Fractional Shares. No fraction of a Share shall be purchasable or
deliverable upon the exercise of this Option, but in the event any adjustment
hereunder of the number of Shares or other securities covered by this Option
shall cause such number to include a fraction of a Share, such fraction shall be
adjusted to the nearest smaller whole number of a Share.
13. Notices. Any communication or notice required or permitted to be given
under this Option shall be in writing and shall be deemed duly given if sent by
telecopy, upon dispatch thereof (answerback received), or if hand delivered upon
receipt thereof or if mailed by registered or certified mail, postage prepaid,
return receipt requested, upon the third business day after dispatch thereof, as
follows:
If to the Company:
Multimedia Games, Inc.
0000 Xxxxx Xxxxx Xxxx., Xxxxx 000
Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
If to the Employee:
At the address set forth below the signature of Employee
14. Miscellaneous. (a) This Agreement constitutes the entire Agreement
between the parties hereto with regard to the subject matter hereof, terminating
and superseding all prior understandings and agreements, whether written or
oral. This Agreement may not be amended or revised except by a writing signed by
the parties.
(b) Captions herein have been inserted solely for convenience of reference
and in no way define, limit or describe the scope or substance of any provision
of this Agreement.
(c) This Agreement shall be construed under and governed by the laws of the
State of Oklahoma.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its duly authorized officer and the Employee has hereunto set his or her hand,
all as of the day and year first above written.
MULTIMEDIA GAMES, INC.
By:
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Employee
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Name:
Address:
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Social Security No.:
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STOCK OPTION AGREEMENT
EXHIBIT 1
Gentlemen:
In connection with the exercise by me as to __________________ shares of
Common Stock, $.01 par value per share, of Multimedia Games, Inc. (the
"Company"), I hereby acknowledge that I have been informed as follows:
1. The shares of Common Stock of the Company to be issued to me pursuant to
the exercise of said option have not been registered under the Securities Act of
1933, as amended (the "Act"), and accordingly, must be held indefinitely unless
such shares are subsequently registered under the Act, or an exemption from such
registration is available.
2. Routine sales of securities made in reliance upon Rule 144 under the Act
can be made only after the holding period and in limited amounts in accordance
with the terms and conditions provided by that Rule, and in any sale to which
that Rule is not applicable, registration or compliance with some other
exemption under the Act will be required.
3. The Company is under no obligation to me to register the shares or to
comply with any such exemptions under the Act.
4. The availability of Rule 144 is dependent upon adequate current public
information with respect to the Company being available and, at the time that I
may desire to make a sale pursuant to the Rule, the Company may neither wish nor
be able to comply with such requirement.
In consideration of the issuance of certificates for the shares to me, I
hereby represent and warrant that I am acquiring such shares for my own account
for investment, and that I will not sell, pledge or transfer such shares in the
absence of an effective registration statement covering the same, except as
permitted by the provisions of Rule 144, if applicable, or some other applicable
exemption under the Act. In view of this representation and warranty, I agree
that there may be affixed to the certificates for the shares to be issued to me,
and to all certificates issued hereafter representing such shares (until in the
opinion of counsel, which opinion must be reasonably satisfactory in form and
substance to counsel for the Company, it is no longer necessary or required) a
legend as follows:
"These securities have not been registered under the Securities Act of
1933 and may not be sold, transferred, offered for sale, pledged or
hypothecated in the absence of an effective registration statement as to
the securities under said Act or an opinion of counsel satisfactory to the
Company, both as to opinion and counsel, that such registration is not
required."
I further agree that the Company may place a stop order with its Transfer
Agent, prohibiting the transfer of such shares, so long as the legend remains on
the certificates representing the shares.
Very truly yours,
