Exhibit 4.4
PINNACLE ENTERTAINMENT, INC.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (together with the attached grant notice (the
"Grant Notice"), the "Agreement") is made and entered into as of the date set
forth on the Grant Notice by and between Pinnacle Entertainment, Inc., a
Delaware corporation (the "Company"), and the individual (the "Optionee") set
forth on the Grant Notice.
A. Pursuant to the Pinnacle Entertainment, Inc. 2001 Stock Option Plan
(the "Plan"), the Administrator has determined that it is to the advantage and
best interest of the Company to grant to Optionee an option (the "Option") to
purchase the number of shares of the Common Stock of the Company (the "Shares"
or the "Option Shares") set forth on the Grant Notice, at the exercise price
determined as provided herein, and in all respects subject to the terms,
definitions and provisions of the Plan, which is incorporated herein by
reference.
B. Unless otherwise defined herein, capitalized terms used in this
Agreement shall have the meanings set forth in the Plan.
NOW, THEREFORE, in consideration of the mutual agreements contained herein,
the Optionee and the Company hereby agree as follows:
1. Grant and Terms of Stock Option.
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1.1 Grant of Option. Pursuant to the Grant Notice, the Company has
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granted to the Optionee the right and option to purchase, subject to the terms
and conditions set forth in the Plan and this Agreement, all or any part of the
number of Shares set forth on the Grant Notice at a purchase price per Share
equal to the exercise price per Share set forth on the Grant Notice. If the
Grant Notice indicates (under "Type of Option") that this Option is an "ISO",
then this Option is intended by the Company and Optionee to be an Incentive
Stock Option. However, if the Grant Notice indicates that this Option is a
"NQSO", then this Option is not intended to be an Incentive Stock Option and is
instead intended to be a Nonqualified Stock Option.
1.2 Vesting and Exercisability. Subject to the provisions of the Plan
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and the other provisions of this Agreement, this Option shall vest and become
exercisable in accordance with the schedule set forth in the Grant Notice.
Notwithstanding the foregoing, in the event of termination of Optionee's
Continuous Status as an Employee, Director or Consultant for any reason, with or
without Cause, including as a result of death or Disability, this Option shall
immediately cease vesting.
1.3 Term of Option. No portion of this Option may be exercised more than
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ten years from the date of this Agreement. In the event of termination of
Optionee's Continuous Status as an Employee, Director or Consultant for any
reason, the portion of this Option that is not vested and exercisable as of the
date of termination shall be immediately cancelled and terminated. In addition,
the portion of this Option that is vested and exercisable as of the date of
termination of Optionee's Continuous Status as an Employee, Director or
Consultant shall terminate and be cancelled on the earlier of (i) the expiration
of the ten year period set forth in the first sentence of this Section 1.3, or
(ii) 90 days after termination of Optionee's Continuous Status as an Employee,
Director or Consultant (or 12 months in the case of termination as a result of
Optionee's Disability or death); provided, however, if Optionee's Continuous
Status as an Employee, Director or Consultant is terminated for Cause, this
entire Option shall be cancelled and terminated as of the date of such
termination and shall no longer be exercisable as to any Shares, whether or not
previously vested.
2. Method of Exercise.
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2.1 Delivery of Notice of Exercise. This Option shall be exercisable by
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written notice in the form attached hereto as Exhibit A which shall state the
election to exercise this Option, the number of Shares in respect of which this
Option is being exercised, and such other representations and agreements with
respect to such Shares as may be required by the Company pursuant to the
provisions of this Agreement and the Plan. Such written notice shall be signed
by Optionee (or by Optionee's beneficiary or other person entitled to exercise
this Option in the event of Optionee's death under the Plan) and shall be
delivered in person or by certified mail to the Secretary of the Company. The
written notice shall be accompanied by payment of the exercise price. This
Option shall not be deemed exercised until the Company receives such written
notice accompanied by the exercise price and any other applicable terms and
conditions of this Agreement are satisfied. This Option may not be exercised
for a fraction of a Share.
2.2 Restrictions on Exercise. No Shares will be issued pursuant to the
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exercise of this Option unless and until there shall have been full compliance
with all applicable requirements of the Securities Act of 1933, as amended
(whether by registration or satisfaction of exemption conditions), all
Applicable Laws, and all applicable listing requirements of any national
securities exchange or other market system on which the Common Stock is then
listed. As a condition to the exercise of this Option, the Company may require
Optionee to make any representation and warranty to the Company as may be
necessary or appropriate, in the judgment of the Administrator, to comply with
any Applicable Law.
2.3 Method of Payment. Payment of the exercise price shall be made in
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full at the time of exercise in cash or by check payable to the order of the
Company, or, subject in each case to the advance approval of the Administrator
in its sole discretion, by delivery of shares of Common Stock already owned by
Optionee, by delivery of a full recourse promissory note made by Optionee in
favor of the Company or by any combination of the foregoing. Shares of Common
Stock used to satisfy the exercise price of this Option shall be valued at their
Fair Market Value determined on the date of exercise (or if such date is not a
business day, as of the close of the business day immediately preceding such
date). In addition, the Administrator may impose such other conditions in
connection with the
delivery of shares of Common Stock in satisfaction of the exercise price as it
deems appropriate in its sole discretion, including without limitation a
requirement that the shares of Common Stock delivered have been held by the
Optionee for a specified period of time. Any promissory note delivered pursuant
to this Section 2.3 shall have terms and provisions (including, without
limitation, those relating to the maturity date, payment schedule and interest
rate) as determined by the Administrator in its sole discretion, shall be
secured by the Shares acquired and shall comply with all Applicable Laws
(including, without limitation, state and federal margin requirements)
2.4 Notice of Disqualifying Disposition of Incentive Stock Option. If
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this Option is an Incentive Stock Option and the Optionee sells or otherwise
disposes of any of the Shares acquired upon exercise of this Option on or before
the later of (i) two years after the date of grant, or (ii) one year after the
date such Shares were acquired, the Optionee shall immediately notify the
Company in writing of such disposition. The Optionee agrees that he or she may
be subject to income tax withholding by the Company on the taxable income
recognized as a result of such disposition and that the Optionee shall be
required to satisfy such withholding obligations either by making a payment to
the Company in cash or by withholding from current earnings of the Optionee.
3. Non-Transferability of Option. This Option may not be transferred in any
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manner otherwise than by will or by the laws of descent or distribution or to a
beneficiary designated pursuant to the Plan, and may be exercised during the
lifetime of Optionee only by Optionee. Subject to all of the other terms and
conditions of this Agreement, following the death of Optionee, this Option may,
to the extent it is vested and exercisable by Optionee in accordance with its
terms on the date of death, be exercised by Optionee's beneficiary or other
person entitled to exercise this Option in the event of Optionee's death under
the Plan. Notwithstanding the first sentence of this Section 3, if this Option
is a Nonqualified Stock Option, this Option may be assigned pursuant to a
qualified domestic relations order as defined by the Code, and exercised by the
spouse of the Optionee who obtained such Option pursuant to such qualified
domestic relations order. Rights under the assigned portion may be exercised by
the person or persons who acquire a proprietary interest in such Option pursuant
to the assignment. The terms applicable to the assigned portion shall be the
same as those in effect for the Option immediately before such assignment and
shall be set forth in such documents issued to the assignee as the Administrator
deems appropriate.
[DEFRA limitation to be included if applicable.]
4. General.
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4.1 Governing Law. This Agreement shall be governed by and construed
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under the laws of the state of Delaware applicable to agreements made and to be
performed entirely in Delaware, without regard to the conflicts of law
provisions of Delaware or any other jurisdiction.
4.2 Notices. Any notice required or permitted under this Agreement shall
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be given in writing by express courier or by postage prepaid, United States
registered or certified mail, return receipt requested, to the address set forth
below or to such other address for a party as that party may designate by 10
days advance written notice to the other parties. Notice shall be effective
upon the earlier of receipt or 3 days after the mailing of such notice.
If to the Company: Pinnacle Entertainment, Inc.
000 X. Xxxxx Xxxx., Xxxxx 0000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: President
If to Optionee, at the address set forth on the Grant Notice.
4.3 Community Property. Without prejudice to the actual rights of the
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spouses as between each other, for all purposes of this Agreement, the Optionee
shall be treated as agent and attorney-in-fact for that interest held or claimed
by his or her spouse with respect to this Option and the parties hereto shall
act in all matters as if the Optionee was the sole owner of this Option. This
appointment is coupled with an interest and is irrevocable.
4.4 Modifications. This Agreement may be amended, altered or modified
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only by a writing signed by each of the parties hereto.
4.5 Application to Other Stock. In the event any capital stock of the
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Company or any other corporation shall be distributed on, with respect to, or in
exchange for shares of Common Stock as a stock dividend, stock split,
reclassification or recapitalization in connection with any merger or
reorganization or otherwise, all restrictions, rights and obligations set forth
in this Agreement shall apply with respect to such other capital stock to the
same extent as they are, or would have been applicable, to the Option Shares on
or with respect to which such other capital stock was distributed.
4.6 Additional Documents. Each party agrees to execute any and all
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further documents and writings, and to perform such other actions, which may be
or become reasonably necessary or expedient to be made effective and carry out
this Agreement.
4.7 No Third-Party Benefits. Except as otherwise expressly provided in
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this Agreement, none of the provisions of this Agreement shall be for the
benefit of, or enforceable by, any third-party beneficiary.
4.8 Successors and Assigns. Except as provided herein to the contrary,
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this Agreement shall be binding upon and inure to the benefit of the parties,
their respective successors and permitted assigns.
4.9 No Assignment. Except as otherwise provided in this Agreement, the
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Optionee may not assign any of his, her or its rights under this Agreement
without the prior written consent of the Company, which consent may be withheld
in its sole discretion. The
Company shall be permitted to assign its rights or obligations under this
Agreement, but no such assignment shall release the Company of any obligations
pursuant to this Agreement.
4.10 Severability. The validity, legality or enforceability of the
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remainder of this Agreement shall not be affected even if one or more of the
provisions of this Agreement shall be held to be invalid, illegal or
unenforceable in any respect.
4.11 Equitable Relief. The Optionee acknowledges that, in the event of a
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threatened or actual breach of any of the provisions of this Agreement, damages
alone will be an inadequate remedy, and such breach will cause the Company
great, immediate and irreparable injury and damage. Accordingly, the Optionee
agrees that the Company shall be entitled to injunctive and other equitable
relief, and that such relief shall be in addition to, and not in lieu of, any
remedies it may have at law or under this Agreement.
4.12 Arbitration.
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4.12.1 General. Any controversy, dispute, or claim between the
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parties to this Agreement, including any claim arising out of, in connection
with, or in relation to the formation, interpretation, performance or breach of
this Agreement shall be settled exclusively by arbitration, before a single
arbitrator, in accordance with this section 4.12 and the then most applicable
rules of the American Arbitration Association. Judgment upon any award rendered
by the arbitrator may be entered by any state or federal court having
jurisdiction thereof. Such arbitration shall be administered by the American
Arbitration Association. Arbitration shall be the exclusive remedy for
determining any such dispute, regardless of its nature. Notwithstanding the
foregoing, either party may in an appropriate matter apply to a court for
provisional relief, including a temporary restraining order or a preliminary
injunction, on the ground that the award to which the applicant may be entitled
in arbitration may be rendered ineffectual without provisional relief. Unless
mutually agreed by the parties otherwise, any arbitration shall take place in
the City of Los Angeles, California.
4.12.2 Selection of Arbitrator. In the event the parties are
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unable to agree upon an arbitrator, the parties shall select a single arbitrator
from a list of nine arbitrators drawn by the parties at random from the
"Independent" (or "Gold Card") list of retired judges or, at the option of
Optionee, from a list of nine persons (which shall be retired judges or
corporate or litigation attorneys experienced in stock options and buy-sell
agreements) provided by the office of the American Arbitration Association
having jurisdiction over Los Angeles, California. If the parties are unable to
agree upon an arbitrator from the list so drawn, then the parties shall each
strike names alternately from the list, with the first to strike being
determined by lot. After each party has used four strikes, the remaining name on
the list shall be the arbitrator. If such person is unable to serve for any
reason, the parties shall repeat this process until an arbitrator is selected.
4.12.3 Applicability of Arbitration; Remedial Authority. This
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agreement to resolve any disputes by binding arbitration shall extend to claims
against any parent, subsidiary or affiliate of each party, and, when acting
within such capacity, any officer, director, shareholder, employee or agent of
each party, or of any of the above, and shall apply as well to claims arising
out of state and federal statutes and local ordinances as well
as to claims arising under the common law. In the event of a dispute subject to
this paragraph the parties shall be entitled to reasonable discovery subject to
the discretion of the arbitrator. The remedial authority of the arbitrator
(which shall include the right to grant injunctive or other equitable relief)
shall be the same as, but no greater than, would be the remedial power of a
court having jurisdiction over the parties and their dispute. The arbitrator
shall, upon an appropriate motion, dismiss any claim without an evidentiary
hearing if the party bringing the motion establishes that he or it would be
entitled to summary judgement if the matter had been pursued in court
litigation. In the event of a conflict between the applicable rules of the
American Arbitration Association and these procedures, the provisions of these
procedures shall govern.
4.12.4 Fees and Costs. Any filing or administrative fees shall
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be borne initially by the party requesting arbitration. The Company shall be
responsible for the costs and fees of the arbitration, unless the Optionee
wishes to contribute (up to 50%) of the costs and fees of the arbitration.
Notwithstanding the foregoing, the prevailing party in such arbitration, as
determined by the arbitrator, and in any enforcement or other court proceedings,
shall be entitled, to the extent permitted by law, to reimbursement from the
other party for all of the prevailing party's costs (including but not limited
to the arbitrator's compensation), expenses, and attorneys' fees.
4.12.5 Award Final and Binding. The arbitrator shall render an
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award and written opinion, and the award shall be final and binding upon the
parties. If any of the provisions of this paragraph, or of this Agreement, are
determined to be unlawful or otherwise unenforceable, in whole or in part, such
determination shall not affect the validity of the remainder of this Agreement,
and this Agreement shall be reformed to the extent necessary to carry out its
provisions to the greatest extent possible and to insure that the resolution of
all conflicts between the parties, including those arising out of statutory
claims, shall be resolved by neutral, binding arbitration. If a court should
find that the arbitration provisions of this Agreement are not absolutely
binding, then the parties intend any arbitration decision and award to be fully
admissible in evidence in any subsequent action, given great weight by any
finder of fact, and treated as determinative to the maximum extent permitted by
law.
4.13 Headings. The section headings in this Agreement are inserted only
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as a matter of convenience, and in no way define, limit, extend or interpret the
scope of this Agreement or of any particular section.
4.14 Number and Gender. Throughout this Agreement, as the context may
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require, (a) the masculine gender includes the feminine and the neuter gender
includes the masculine and the feminine; (b) the singular tense and number
includes the plural, and the plural tense and number includes the singular; (c)
the past tense includes the present, and the present tense includes the past;
(d) references to parties, sections, paragraphs and exhibits mean the parties,
sections, paragraphs and exhibits of and to this Agreement; and (e) periods of
days, weeks or months mean calendar days, weeks or months.
4.15 Counterparts. This Agreement may be executed simultaneously in two
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or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
4.16 Complete Agreement. The Grant Notice, this Agreement and the Plan
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constitute the parties' entire agreement with respect to the subject matter
hereof and supersede all agreements, representations, warranties, statements,
promises and understandings, whether oral or written, with respect to the
subject matter hereof.
PINNACLE ENTERTAINMENT, INC.
By:___________________________________
Its:___________________________________
OPTIONEE
______________________________________
Name:
SPOUSAL CONSENT
By his or her signature below, the spouse of the Optionee agrees to be
bound by all of the terms and conditions of the foregoing Option Agreement.
OPTIONEE'S SPOUSE
______________________________
Signature
______________________________
Print Name
EXHIBIT A
NOTICE OF EXERCISE OF STOCK OPTION
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Pinnacle Entertainment, Inc.
000 X. Xxxxx Xxxx., Xxxxx 0000
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: President
Ladies and Gentlemen:
The undersigned hereby elects to exercise the option indicated below:
Option Grant Date: ____________________
Type of Option: Incentive Stock Option/Nonqualified Stock Option
Number of Shares Being Exercised: ____________
Exercise Price Per Share: _________________
Total Exercise Price: $_____________
Method of Payment: ______________
Enclosed herewith is payment in full of the total exercise price and a copy
of the Grant Notice.
My exact name, current address and social security number for purposes of
the stock certificates to be issued and the shareholder list of the Company are:
Name:________________________________
Address:_____________________________
_____________________________
Social Security Number:______________
Sincerely,
Dated:_________________ ______________________________
(Optionee's Signature)
PINNACLE ENTERTAINMENT, INC.
STOCK OPTION GRANT NOTICE
(2001 Stock Option Plan)
Pinnacle Entertainment, Inc. (the "Company"), pursuant to its 2001 Stock Option
Plan (the "Plan"), hereby grants to Optionee the option to purchase the number
of Shares of the Company set forth below (the "Option"). This Option is subject
to all of the terms and conditions as set forth in this Grant Notice, the Stock
Option Agreement (the "Option Agreement") and the Plan, all of which are
attached hereto and incorporated herein in their entirety.
Optionee: ______________________________
Date of Grant: ______________________________
Number of Shares of Common Stock: ______________________________
Exercise Price Per Share: ______________________________
Initial Vesting Date: ______________________________
Type of Option ISO / NQSO
Vesting Schedule: Subject to the restrictions and limitations of the Option
Agreement and the Plan, this Option shall vest and become exercisable with
respect to ______% of the Shares subject to this Option on the Initial Vesting
Date. On each subsequent anniversary of the Initial Vesting Date, this Option
shall become vested and exercisable with respect to an additional ______% of the
Shares subject to this Option.
Additional Terms/Acknowledgements: The undersigned Optionee acknowledges
receipt of, and has read and understands and agrees to, the Option Agreement and
the Plan. Optionee further acknowledges that as of the Date of Grant, the
Option Agreement and the Plan set forth the entire understanding between
Optionee and the Company regarding the grant by the Company of the Option
referred to in this Grant Notice. Optionee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Board or the
Administrator upon any questions arising under the Plan.
PINNACLE ENTERTAINMENT, INC. OPTIONEE:
By:_____________________________ _____________________________________
Signature Signature
Title:__________________________ Date:________________________________
Date:___________________________
ATTACHMENTS: Stock Option Agreement and 2001 Stock Option Plan
SPOUSE OF OPTIONEE:
Spouse has read and understands the Option Agreement and the Plan and is
executing this Grant Notice to evidence Spouse's consent and agreement to be
bound by all of the terms and conditions of the Option Agreement and the Plan
(including those relating to the appointment of the Optionee as agent for any
interest that Spouse may have in the Option Shares).
___________________________ _____________________________________
Signature Date
Optionee Address:
_____________________________________________________________________
