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EXHIBIT 10(d)
NON-QUALIFIED STOCK OPTION AGREEMENT
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THIS AGREEMENT is made by and between The Sands Regent, a Nevada
corporation, hereinafter referred to as "Company," and Xxxxx X. Xxxxxxxx, a
Director of the Company, hereinafter referred to as "Director":
WHEREAS, the Company wishes to afford the Director the opportunity to
purchase shares of its Common Stock ("Common Stock"); and
WHEREAS, the Board has determined that it would be to the advantage and
in the best interest of the Company and its shareholders to grant the
non-qualified stock option provided for herein to the Director as an inducement
to enter into the service of the Company and as an incentive for increased
efforts during such service, and has advised the Company thereof and instructed
the undersigned officers to issue said Option; and
WHEREAS, the grant of said Option has been made in conformity with Rule
16b-3; and
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I.
DEFINITIONS
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Whenever the following terms are used in this Agreement, they shall have
the meaning specified below unless the context clearly indicates to the
contrary. The masculine pronoun shall include the feminine and neuter, and the
singular the plural, where the context so indicates.
Section 1.1. -- Administrator
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"Administrator" shall mean the Board, excluding the Director.
Section 1.2. -- Board
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"Board" shall mean the Board of Directors of the Company, as constituted
from time to time.
Section 1.3. -- Company
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"Company" shall mean The Sands Regent, a Nevada corporation.
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Section 1.4. -- Exchange Act
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
Section 1.5. -- Option
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"Option" shall mean the non-qualified stock option to purchase Common
Stock of the Company granted under this Agreement.
Section 1.6. -- Rule 16b-3
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"Rule 16b-3" shall mean that certain Rule 16b-3 under the Exchange Act,
as amended from time to time.
Section 1.7. -- Secretary
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"Secretary" shall mean the Secretary of the Company.
Section 1.8. -- Securities Act
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"Securities Act" shall mean the Securities Act of 1933, as amended.
Section 1.9. -- Termination of Directorship
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"Termination of Directorship" shall mean the time when the Director
terminates as a member of the Board for any reason, with or without cause,
including, but not by way of limitation, a termination by resignation,
discharge, death or retirement.
ARTICLE II.
GRANT OF OPTION
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Section 2.1. -- Grant of Option
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Upon the terms and conditions set forth in this Agreement and in
consideration of the Director's agreement to serve on the Board, effective as of
the date set forth on the signature page hereof (the "Date of Grant"), the
Company irrevocably grants to the Director an option to purchase any part or all
of the aggregate number of shares of Common Stock set forth on the signature
page hereof, subject to adjustment pursuant to Section 2.4 hereof.
Section 2.2. -- Purchase Price
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The purchase price of the shares of stock covered by the Option shall be
the amount per share of Common Stock set forth on the signature page hereof, all
without commission or other charge, and subject to adjustment pursuant to
Section 2.4 hereof.
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Section 2.3. -- Consideration to Company
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In consideration of the granting of this Option by the Company, the
Director agrees to remain as a member of the Board for a period of at least one
year after the Date of Grant, unless the shareholders of the Company fail to
reelect Director to the Board upon expiration of Director's term of office prior
to the expiration of the one year period.
Section 2.4. -- Adjustments in Option
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In the event that the outstanding shares of the stock subject to the
Option are changed into or exchanged for a different number or kind of shares of
the Company or other securities of the Company by reason of merger,
consolidation, recapitalization, reclassification, stock split-up, stock
dividend or combination of shares, the Administrator shall make an appropriate
and equitable adjustment in the number and kind of shares as to which the
Option, or portions thereof then unexercised, shall be exercisable, to the end
that after such event the Director's proportionate interest shall be maintained
as before the occurrence of such event. Such adjustment in the Option shall be
made without change in the total price applicable to the unexercised portion of
the Option (except for any change in the aggregate price resulting from
rounding-off of shares quantities or prices) and with any necessary
corresponding adjustment in the Option price per share. Any such adjustment made
by the Administrator shall be final and binding upon the Director, the Company
and all other interested persons.
ARTICLE III.
PERIOD OF EXERCISABILITY
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Section 3.1. -- Commencement of Exercisability
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(a) The Option shall become (100%) exercisable on the first anniversary
of the Date of Grant; provided that Director is a member of the Board on such
date.
(b) No portion of the Option which is unexercisable at Termination of
Directorship shall thereafter become exercisable.
Section 3.2. -- Expiration of Option
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The Option may not be exercised to any extent by anyone after the first
to occur of the following events:
(a) The expiration of ten (10) years and one (1) day from the date the
Option was granted; or
(b) The expiration of one (1) year from the date of Director's
Termination of Directorship.
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Section 3.3. -- Acceleration of Exercisability
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In the event of the merger or consolidation of the Company with or into
another corporation, or the acquisition by another corporation or person of all
or substantially all of the Company's assets or eighty percent (80%) or more of
the Company's then outstanding voting stock, or the liquidation or dissolution
of the Company, then this Option shall be exercisable as to all shares covered
hereby, notwithstanding that this Option may not yet have become fully
exercisable under Section 3.1.(a).
ARTICLE IV.
EXERCISE OF OPTION
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Section 4.1. -- Person Eligible to Exercise
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During the lifetime of the Director, only the Director may exercise the
Option or any portion thereof. After the death of the Director, any exercisable
portion of the Option may, prior to the time when the Option becomes
unexercisable under Section 3.2, be exercised by the Director's personal
representative or by any person empowered to do so under the Director's will or
under the then applicable laws if descent and distribution.
Section 4.2. -- Partial Exercise
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The Option, if then exercisable, may be exercised in whole or in part at
any time; provided, however, that each partial exercise shall be for not less
than twenty-five (25) shares and shall be for whole shares only.
Section 4.3. -- Manner of Exercise
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The Option, or any exercisable portion thereof, may be exercised solely
by delivery to the Secretary or the Secretary's office of all of the following
prior to the time when the Option or such portion becomes unexercisable under
Section 3.2:
(a) Notice in writing signed by the Director or the other person then
entitled to exercise the Option or portion stating that the Option or portion is
thereby exercised, such notice complying with all applicable rules established
by the Administrator;
(b) Full payment (in cash or by check) for the shares with respect to
which such Option or portion is exercised;
(c) A bona fide written representation and agreement, in a form
satisfactory to the Administrator, signed by the Director or other person then
entitled to exercise such Option or portion, stating that the shares of stock
are being acquired for his own account, for investment and without any present
intention of distributing or reselling said shares or any of them except as may
be permitted under the Securities Act and then applicable rules and regulations
thereunder, and that the Director or other person then entitled to exercise such
Option or portion will
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indemnify the Company against and hold it free and harmless from any loss,
damage, expense or liability resulting to the Company if any sale or
distribution of the shares by such person is contrary to the representation and
agreement referred to above. The Administrator may, in its absolute discretion,
take whatever additional actions it deems appropriate to insure the observance
and performance of such representation and agreement and to effect compliance
with the Securities Act and any other federal or state securities laws or
regulations. Without limiting the generality of the foregoing, the Administrator
may require an opinion of counsel acceptable to it to the effect that any
subsequent transfer of shares acquired on an Option exercise does not violate
the Securities Act, and may issue stop-transfer orders covering such shares.
Share certificates evidencing stock issued upon exercise of this Option shall
bear an appropriate legend referring to the provisions of this subsection (c)
and the agreements herein. The written representation, agreement and legend
referred to in this subsection (c) shall, however, not be required if the shares
to be issued pursuant to such exercise have been registered under the Securities
Act, and such registration is then effective in respect of such shares.
(d) Full payment (in cash or by check) to the Company (or other employer
corporation) of all amounts which, under federal, state or local tax law, it is
required to withhold upon exercise of the Option; and
(e) In the event the Option or portion shall be exercised pursuant to
Section 4.1 by any person or persons other than the Director, appropriate proof
of the right of such person or persons to exercise the Option.
Section 4.4. -- Conditions to Issuance of Stock Certificates
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The shares of stock deliverable upon the exercise of the Option, or any
portion thereof, may be either previously authorized but unissued shares or
issued shares which have then been reacquired by the Company. Such shares shall
be fully paid and nonassessable. The Company shall not be required to issue or
deliver any certificate or certificates for shares of stock purchased upon the
exercise of the Option or portion thereof prior to fulfillment of all of the
following conditions:
(a) The admission of such shares to listing on all stock exchanges on
which such class of stock is then listed;
(b) The completion of any registration or other qualification of such
shares under any state or federal law or under rulings or regulations of the
Securities and Exchange Commission or of any other governmental regulatory body,
which the Administrator shall, in its absolute discretion, determine to be
necessary or advisable;
(c) The obtaining of any approval or other clearance form any state or
federal governmental agency which the Administrator shall, in its absolute
discretion, determine to be necessary or advisable;
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(d) The payments to the Company (or other employer corporation) of all
amounts which, under federal, state or local tax law, it is required to withhold
upon exercise of the Option; and
(e) The lapse of such reasonable period of time following the exercise
of the Option as the Administrator may from time to time establish for reasons
of administrative convenience.
Section 4.5. -- Rights of Shareholders
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The Director shall not be, nor have any of the rights or privileges of,
a shareholder of the Company in respect of any shares purchasable upon the
exercise of any part of the Option unless and until certificates representing
such shares shall have been issued by the Company to such holder.
ARTICLE V.
OTHER PROVISIONS
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Section 5.1. -- Administration
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The Administrator shall have the power to interpret this Agreement and
to adopt such rules for the administration, interpretation and application of
this Agreement as are consistent therewith and to interpret or revoke any such
rules. All actions taken and all interpretations and determinations made by the
Administrator in good faith shall be final and binding upon the Director, the
Company and all other interested persons. No member of the Administrator shall
be personally liable for any action, determination or interpretation made in
good faith with respect to the Option. The Board may at any time and from time
to time exercise any and all rights and duties of the Administrator under this
Agreement.
Section 5.2. -- Option Not Transferable
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Neither the Option nor any interest or right therein or part thereof
shall be liable for the debts, contracts or engagements of the Director or his
successors in interest or shall be subject to disposition by transfer,
alienation, anticipation, pledge, encumbrance, assignment or any other means
whether such disposition be voluntary or involuntary or by operation of law by
judgment, levy, attachment, garnishment or any other legal or equitable
proceedings (including bankruptcy), and any attempted disposition thereof shall
be null and void and of no effect; provided, however, that this Section 5.2
shall not prevent transfers by will or by the applicable laws of descent and
distribution.
Section 5.3. -- Shares to Be Reserved
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The Company shall at all times during the term of the Option reserve and
keep available such number of shares of Common Stock as will be sufficient to
satisfy the requirements of this Agreement.
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Section 5.4. -- Notices
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Any notice to be given under the terms of this Agreement to the Company
shall be addressed to the Company in care of its Secretary, and any notice to be
given to the Director shall be addressed to the Director at the address given
beneath the Director's signature hereto. By a notice given pursuant to this
Section 5.4, either party may hereafter designate a different address for
notices to be given. Any notice which is required to be given to the Director's
personal representative has previously informed the Company of his status and
address by written notice under this Section 5.4. Any notice shall be deemed
duly given when enclosed in a properly sealed envelope or wrapper addressed as
aforesaid deposited (with postage prepared) in a post office or branch post
office regularly maintained by the United States Postal Service, or to a courier
guaranteeing overnight delivery.
Section 5.5. -- Titles
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Titles are provided herein for convenience only and are not to serve as
a basis for interpretation or construction of this Agreement.
Section 5.6. -- Construction
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This Agreement shall be administered, interpreted and enforced under the
laws of the State of Nevada.
Section 5.7. -- Conformity to Securities Laws
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The Director acknowledges that this Agreement is intended to conform to
the extent necessary with all provisions of the Securities Act and the Exchange
Act and any and all regulations and rules promulgated by the Securities and
Exchange Commission thereunder, including without limitation Rule 16b-3.
Notwithstanding anything herein to the contrary, this Agreement shall be
administered, and the Option is granted and may be exercised, only in such a
manner as to conform to such laws, rules and regulations to the extent
applicable. To the extent permitted by applicable law, this Agreement shall be
deemed amended to the extent necessary to conform to such laws, rules and
regulations.
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SIGNATURE PAGE
NON-QUALIFIED STOCK OPTION AGREEMENT
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I have read the Non-Qualified Stock Option Agreement (the "Agreement").
As Director, I hereby agree to all of the terms of the Agreement.
Date of Grant: May 11, 1998 Director Social Security Number
or Taxpayer Identification
Number:
Xxxxx X. Xxxxxxxx ###-##-####
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Director Name (Please Print)
Number of Option Shares: 10,000
0000 Xxxxxxxxx Xxxxxx
----------------------------------- Purchase Price Per Share: $2.12
Xxxx, Xxxxxx 00000
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Address
/s/ Xxxxx X. Xxxxxxxx
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Director Signature
The Company hereby agrees to all of the terms of the Agreement.
THE SANDS REGENT,
a Nevada Corporation
By: /s/ Xxxxxx X. Xxxxx
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Its: President and Chief
Executive Officer
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