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EXHIBIT 10.11
MULTIMEDIA GAMES, INC.
STOCK OPTION PLAN AND AGREEMENT
1998 PRESIDENT'S PLAN
THIS STOCK OPTION PLAN AND AGREEMENT, entered into this 12th day of
June, 1998, by and between Multimedia Games, Inc., a Texas corporation (the
"Company"), and Xxxxxxx Xxxx (the "Employee"),
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Employee as its President
and Chief Operating Officer;
WHEREAS, as an inducement to accept such employment, the Company
desires to grant the Employee options to acquire shares of the Company's common
stock, $.01 par value per share ("Common Stock");
WHEREAS, subject to Section 15 of this Agreement, it is intended that
each option qualify as an "Incentive Stock Option" within the meaning of Section
422 of the Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS, the Company and the Employee have agreed to terminate and
cancel all of the "Other Options" as provided in Section 14 of this Agreement.
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) On the terms and conditions hereinafter set
forth, the Company hereby irrevocably grants to the Employee each of the options
(each an "Option" and collectively, the "Options") to purchase shares of Common
Stock (the "Shares") as set forth on Schedule A attached hereto.
(b) Subject to Section 15, it intended that each Option shall be an
Incentive Stock Option.
(c) If an Option is an Incentive Stock Option, the aggregate Fair
Market Value (determined as of the date of this Agreement) of the Shares subject
to the Option and of all other shares of Common Stock subject to options granted
under any other option plans of the Company (or any of its affiliated companies)
that become exercisable for the first time by the Employee during any calendar
year shall not exceed $100,000; and to the extent such $100,000 amount is
exceeded, the Option shall be treated as a Non-Qualified Stock Option.
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2. Purchase Price. The purchase price ("Purchase Price") for the Shares
covered by each Option shall be $3.8125 per Share.
3. Time of Exercise of Option; Exercisability. (a) Each Option shall
become exercisable on the Date Initially Exercisable of such Option as set forth
on Schedule A hereto.
(b) Each Option shall expire if and to the extent not exercised prior
to the Expiration Date of such Option as set forth on Schedule A.
(c) Notwithstanding the foregoing provisions of this Section 3,
(i) Upon the death of Employee or upon the occurrence of a "Change of
Control" (as hereinafter defined):
(A) each Option that is then exercisable on the date of such
event shall remain exercisable until the 30th day following such event;
provided that if such event is the death of Employee, such Option shall
remain exercisable for a period of 365 days from the date of Employee's
death; and
(B) each Option that is not then exercisable on the date of
such event shall nevertheless become immediately exercisable as to all
of the Shares subject to such Option shall remain exercisable until the
30th day following such event; provided that if such event is the death
of Employee, such Option shall remain exercisable for a period of 365
days from the date of Employee's death.
(ii) In the event of the termination of the Employee's employment with
the Company for Cause (as hereinafter defined):
(A) each Option that is then exercisable on the date of such
termination shall remain exercisable until the 30th day following such
termination; and
(B) each Option that is not then exercisable on the date of
such termination shall expire on the date of such termination.
(iii) In the event of the termination of the Employee's employment with
the Company due to the death or "disability" (as hereinafter defined) of the
Employee:
(A) each Option that is then exercisable on the date of such
death or disability shall remain exercisable until the 365th day
following such termination; and
(B) each Option that is not then exercisable on the date of
such death or disability shall expire on the date of such termination.
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(iv) In the event the Employee's employment with the Company is
terminated by the Company without "Cause" or in the event the Employee
terminates his employment with the Company for "Good Reason" (as hereinafter
defined):
(A) each Option that is then exercisable on the date of such
termination shall remain exercisable until the 90th day following such
termination;
(B) each Option that would become exercisable on or before
the second anniversary of the date of such termination shall become
exercisable as of the date of such termination and shall thereafter
remain exercisable until the 90th day following such termination; and
(C) each other Option not referred to in clauses (A) and (B)
of this Section 3(c)(iv) shall terminate on the date of such
termination.
(v) In the event the Employee's employment with the Company is
voluntarily terminated by the Employee without "Good Reason":
(A) each Option that is then exercisable on the date of such
termination shall remain exercisable until the 90th day following such
termination;
(B) each Option that would become exercisable on or before
the first anniversary of the date of such termination shall become
exercisable as of the date of such termination and shall thereafter
remain exercisable until the 90th day following such termination; and
(C) each other Option not referred to in clauses (A) and (B)
of this Section 3(c)(v) shall terminate on the date of such
termination.
(vi) When used in this Agreement, the following terms shall have the
indicated meanings:
"Cause" shall mean (A) the commission by the Employee of an
act of dishonesty, fraud or embezzlement (including the unauthorized
disclosure of confidential or proprietary information of the Company)
which results in, or reasonably could be expected to result in,
material injury to the Company, (B) a felony conviction of, or plea of
guilty or nolo contendre to a felony by, the Employee, (C) willful
misconduct by the Employee as an employee of the Company which results
in, or reasonably could be expected to result in, material injury to
the Company, or (D) the willful failure of the Employee to render
services to the Company in accordance with the terms of his employment
which failure amounts to a material neglect of his duties to, and
results in material injury to, the Company, as determined in each case
in good faith by the Company's Board of Directors.
"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
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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 51% of the voting stock of the Company
"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.
"Good Reason" shall mean (i) the failure to pay the Employee
an annual salary at least equal to that in effect on the date of this
Agreement (or any greater amount that may be in effect after the date
of this Agreement, (ii) the failure to retain the Employee as the
President and Chief Operating Officer of the Company, (iii) the
imposition upon the Employee of duties materially less in stature than
those performed by a president and chief operating officer of a
publicly traded company, and (iv) the imposition upon the Employee of
any requirement to perform any illegal act.
"Person" shall mean an individual, a partnership, a joint
venture, a corporation, a trust, an unincorporated organization, a
limited liability company or any other entity.
(d) Anything to the contrary in this Section 3 notwithstanding, in no
event shall any Option be exercised prior to December 17, 1998; and should any
of the events specified in Section 3(c) require the exercise of an Option prior
to December 17, 1998, the right to make such exercise shall be continued until
December 17, 1998.
4. Manner of Exercise of Option. (a) To the extent that the right to
exercise an Option is then in effect, such 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) by check payable to the Company, or
(iii) in shares of Common Stock (having a Fair Market Value on
the date of payment equal to that portion of the Purchase Price being
paid in such shares), or
(iv) by a promissory note of the Employee payable to the
Company (having the terms set forth in Section 4(d) below), or
(v) a combination of the foregoing, or
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(vi) in such other form of consideration as the Board of
Directors of the Company may, in its sole discretion, agree;
provided that, if at the time of exercise such Option (or a portion of such
Option) is a Non-Qualified Stock Option then 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 to the Employee at
the principal office of the Company 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 each Option
reserve and keep available such number of Shares of its Common Stock as will be
sufficient to satisfy the require ments of such Option.
(c) Notwithstanding the provision of Section 4(a) of this Agreement,
the Company may delay the issuance of Shares covered by the exercise of an
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 such 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.
(d) Any promissory delivered by the Employee shall be due and payable
as to principal on the third anniversary of the date of the note, and shall be
payable as to interest on a monthly basis at a rate per annum equal to the
"applicable federal rate" as then in effect for notes of like duration and terms
of payment.
5. Non-Transferability. The right of the Employee to exercise an
Option shall not be assignable or transferable by the Employee otherwise than by
will or the laws of descent and distribution, and each Option may be exercised
during the lifetime of the Employee only by the Employee. Any transfer or
purported transfer of an 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 an Option.
6. Restrictions. (a) In the event that for any reason the Shares to be
issued upon exercise of an Option shall not be effectively registered under the
Securities Act of 1933 (the "1933 Act"), upon any date on which an Option is
exercised in whole or in part, the Employee shall give
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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) Within 90 days from the date of this Agreement, the Company shall
file a registration statement on Form S-3 for the purpose of registering under
the 1933 Act the resale of the Shares. The Company shall use its best efforts to
cause such registration statement to be declared effective and to remain in
effect until registration of the Shares is no longer necessary in order for the
Employee to sell the Shares publicly under Rule 144.
7. Recapitalizations, Reorganizations, Changes in Control and the
Like. 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, Change of Control or dividends payable in
capital stock, appropriate adjust ment shall be made in the number and kind of
Shares or other securities as to which each Option shall be exercisable. Such
adjustment shall be made without change in the total purchase price applicable
to the unexercised portion of an Option.
8. No Special Employment Rights. Nothing contained in this Agreement
shall be construed or deemed by any person under any circumstances to bind the
Company to continue the employment of the Employee for the period within which
any Option may be exercised.
9. 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 any
Option unless and until a certificate or certificates representing 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 6(a) hereof.
10. Withholding Taxes. Whenever Shares are to be issued upon exercise
of an 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 Shares. In all events Employee shall pay such withholding tax
in cash to the Company.
11. Fractional Shares. No fraction of a Share shall be purchasable or
deliverable upon the exercise of an Option, but in the event any adjustment
hereunder of the number of Shares or other securities covered by an 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.
12. Notices. Any communication or notice required or permitted to be
given under this Agreement 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:
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If to the Company:
Multimedia Games, Inc.
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Attention: Chairman of the Board
Telecopy: (000) 000-0000
If to the Employee:
At the address set forth below
the signature of Employee
13. 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.
14. Cancellation of Other Options. The Company and the Employee hereby
mutually agree to terminate and cancel, effective immediately, each and every of
the warrants, options and other rights to purchase Common Stock heretofore
granted by the Company to the Employee as in effect immediately prior to the
date of this Agreement.
15. Shareholder Approval of Incentive Stock Options. This Agreement is
intended to be a "plan" within the meaning of Section 422 of the Code. The total
number of shares of Common Stock subject to this "plan" that may be issued as
Incentive Stock Options is 338,000 shares. This Agreement and the Options
granted hereunder shall become effective with respect to Incentive Stock Options
on the date the Company's stockholders formally approve the Plan; provided that,
if such approval is not obtained on or before June 17, 1999, the Options shall
remain in effect in accordance with their respective terms but shall be
non-qualified stock options.
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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: Xxxxxxx Xxxx
Address:
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---------------------------------
Social Security No.:
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STOCK OPTION PLAN AND AGREEMENT
EXHIBIT 1
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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") under the
Stock Option Agreement dated _____________, granted to me under the 1996 Stock
Incentive Plan, 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,
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SCHEDULE A
LIST OF OPTIONS
Number of Shares
Subject to Option Date Initially Exercisable Expiration Date
----------------- -------------------------- ---------------
27,000 June 17, 1998 May 29, 2002
50,000 September 30, 1998 September 30, 2002
12,250 June 17, 1998 February 20, 2007
12,250 February 20, 1999 February 20, 2007
12,250 February 20, 2000 February 20, 2007
12,250 February 20, 2001 February 20, 2007
12,500 January 8, 1999 January 8, 2008
12,500 January 8, 2000 January 8, 2008
12,500 January 8, 2001 January 8, 2008
12,500 January 8, 2002 January 8, 2008
40,500 August 28, 1998 August 28, 2007
40,500 August 28, 1999 August 28, 2007
40,500 August 28, 2000 August 28, 2007
40,500 August 28, 2001 August 28, 2007
