EXHIBIT 4.3(D)
CASINO MAGIC CORP.
NON-STATUTORY STOCK OPTION AGREEMENT
THIS AGREEMENT, made and entered into effective as of the 27th day of
July, 1994, by and between Casino Magic Corp., a Minnesota corporation
(hereinafter referred to as the "Company"), and W. Xxxxxxx Xxxxxxxxxx, a
resident of the State of Minnesota (hereinafter referred to as "Director").
W I T N E S S E T H:
WHEREAS, W. Xxxxxxx Xxxxxxxxxx is a Director of the Company; and
WHEREAS, the Company considers it desirable and in its best interest that
Director be given an added incentive to advance the interests of the Company and
its subsidiaries by possessing a non-statutory stock option to purchase common
shares of the Company.
NOW THEREFORE, in consideration of the premises and mutual covenants
herein, the parties hereto agree as follows:
1. Grant of Option. The Company grants to Director a non-statutory stock
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option to purchase 75,000 common shares of the Company at a purchase price of
$7.20 per share, in the manner and subject to the conditions hereinafter
provided.
2. Time of Exercise of Option/Vesting. The options granted under this
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Agreement may be exercised by Director after July 27, 1994, as to 15,000 shares
of common stock of the Company; after May 12, 1995, as to an additional 15,000
of said shares of common stock of the Company; after May 12, 1996, as to an
additional 15,000 shares of common stock of the Company; after May 12, 1997, as
to an additional 15,000 of said shares of common stock of the Company; and after
May 12, 1998, as to all shares of common stock of the Company purchasable
hereunder. If Director (i) voluntarily resigns as a member of the Board of
Directors, (ii) refuses to consent to or stand for election as a member of the
Board of Directors, or (iii) conducts himself in a manner which by law makes him
ineligible to serve as a member of the Board of Directors, then Director will
only have the right to purchase such number of shares hereunder as he was
entitled to purchase at the time Director ceased to serve as a member of the
Board of Directors.
3. Method of Exercise.
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a. The option shall be exercised by written notice to the Board of
Directors of the Company, at the Company's principal place of business,
accompanied by cash, cashier's check or certified check in payment of the
purchase price for the number of the common shares specified and paid for,
and accompanied by any document reasonably required by the Company to be
executed by Director, acknowledging the applicable restrictions on the
transfer of the common shares being purchased as set forth under Section 7
of this Agreement.
b. In the event common shares of the Company are listed on the
NASDAQ system or any exchange registered under the Securities Exchange Act
of 1934 at the time all or any part of the option is exercised, in lieu of
cash (and so long as the per share market price of common shares of the
Company is then greater than the per share purchase price payable in
respect of the common shares being purchased upon exercise of the options)
the purchase price payable in exercise of the options may be paid by
Employee by exchanging for cancellation by the Company common shares of the
Company previously issued to Employee based on the fair market value of the
common shares on the first trading day immediately preceding the date of
exercise of the options. The fair market value of the common shares being
offered as the exercise price shall equal the closing sale price per common
share (or the closing bid, if no sales were reported) as quoted on the
NASDAQ system, or the closing sale price per common share as listed on an
exchange registered under the Securities Exchange Act of 1934.
c. The Company shall make prompt delivery of a certificate or
certificates representing such common shares, provided that if any law or
regulation requires the Company to take any action with respect to the
common shares specified in such notice before the issuance thereof, then
the date of delivery of such common shares shall be extended for the period
necessary to take action. The option must be exercised with respect to at
least 500 of the common shares, unless a lesser number of the common shares
are then exercisable, in which case it must be exercised with respect to
such lesser number.
4. Termination of Option. Except as herein otherwise stated, any option
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granted under this Agreement, to the extent not heretofore exercised, shall
terminate on the close of business on May 12, 1999.
5. Reclassification, Consolidation or Merger.
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If and to the extent that the number of issued shares of the Company shall
be increased or reduced by change in par value, split up, reverse split,
reclassification, distribution of a dividend payable in stock, or the like, the
number of shares of common stock subject to this option and the option price per
share shall be proportionately adjusted. In the event the Company dissolves or
liquidates and another entity succeeds to its assets, or in the event of a
merger or consolidation in which the Company is not the surviving entity, or in
the event of a reverse merger in which the Company survives but its shares
immediately preceding the merger are converted into other property by virtue of
the merger, then the options shall accelerate and
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become exercisable immediately prior to such dissolution or liquidation or
merger or consolidation, unless the surviving entity assumes the outstanding
options or substitutes similar options in the same proportion, at an equivalent
price and subject to the same conditions for those outstanding.
6. Rights Prior to Exercise of Option. Director shall have no rights as a
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stockholder with respect to any common shares purchasable hereunder until
payment of the option price and delivery to him of such common shares as herein
provided.
7. Restriction on Disposition. All common shares acquired by the Director
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pursuant to this Agreement shall be subject to the restrictions on sale,
encumbrance and other disposition contained in the Company's Articles of
Incorporation or By-Laws. As a condition to the exercise of the option, the
Company may require that Director or his permitted transferee execute such
documents as the Company deems reasonable or necessary to insure compliance with
federal and state laws and regulations relating to the sale of securities,
including the availability of an exemption from the registration or
qualification of such sale under such laws or regulations. The common shares
acquired upon exercise of the option may not be sold or otherwise disposed of
unless there is an effective registration statement covering such disposition
under the Securities Act of 1933, and effective registrations and qualifications
under applicable state securities laws, unless exemptions from such registration
or qualifications under the Act and state securities laws are applicable.
Certificates representing common shares issued upon exercise of the option may
contain a legend relating to restrictions on transfer as set forth above.
8. Transferability of Option/Vesting Upon Death. The options granted
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under this Agreement are transferable by Director during his lifetime with the
prior written consent of the Company, which it may withhold for any reason. In
the event of the death of Director, the options granted under this Agreement
shall become fully vested, notwithstanding the vesting schedule in Paragraph 2,
and shall be transferable by will or in accordance with the laws of descent and
distribution, and shall remain exercisable until the close of business on the
date specified in Paragraph 4 hereof.
9. Binding Effect. This Agreement shall inure to the benefit of and be
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binding upon the parties hereto and their respective heirs, executors,
administrators, successors and assigns. If possible, this Agreement shall be
construed along with and in addition to any other agreement which the Company
and Director may enter into, but any provision in this Agreement which
contradicts any provision of any other agreement shall take precedence and be
binding over such other provision. Any masculine personal pronoun used herein
shall be considered to mean the corresponding feminine or neuter personal
pronoun, as the context requires.
10. Execution Date. This Agreement and the option granted to the Director
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shall be deemed void and of no force or effect if the Director has not executed
and returned to the Company this Non-Statutory Stock Option Agreement within 45
days of Director's receipt hereof.
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IN WITNESS WHEREOF, the parties have hereto caused this Agreement to be
executed effective on the day and year first above written.
CASINO MAGIC CORP.
By: /s/ Dual X. Xxxxxx, Xx.
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Dual X. Xxxxxx, Xx.
President
DIRECTOR
/s/ W. Xxxxxxx Xxxxxxxxxx
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W. Xxxxxxx Xxxxxxxxxx
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