EXHIBIT 4.18
NON-QUALIFIED STOCK OPTION AGREEMENT
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THIS NON-QUALIFIED STOCK OPTION AGREEMENT is entered into as of July 29,
1998 by and between MTR Gaming Group, Inc. a Delaware corporation (the
"Company"), and Xxxxxx Xxxxxxxx (the "Optionee").
In consideration of the mutual promises hereinafter set forth, and for
other good and valuable consideration, including services rendered by the
Optionee, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. OPTION GRANT. The Company and the Optionee hereby agree to be
bound by the terms of this Agreement with respect to the grant made by the
Company's Board of Directors on October 1, 1997 of an option (the "Option")
to purchase an aggregate of 30,000 shares of the common stock, $.0001 par
value per share, of the Company ("Common Stock"). The exercise price of the
Option per share shall equal the per share fair market value of the Common
Stock on the date of vesting with respect to each 10,000 share tranche. The
exercise price for the first 10,000 shares is $1.4375 per share of which
options to purchase 10,000 shares vested on October 1, 1997, and of which
options to purchase an additional 10,000 shares shall vest on October 1, 1998
and October 1, 1999, respectively (conditioned upon the Optionee's continued
service to the Company or its subsidiaries). This Option is not intended to
constitute an "incentive stock option" (within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended).
2. TERM; EXERCISE. This Option will expire on September 30, 2001,
subject to earlier termination as provided herein (the "Termination Date").
This Option is exercisable at anytime prior to the Termination Date except as
otherwise provided by the terms of this Option. In no event may a fraction
of a share of Common Stock be purchased under this Option.
3. NOTICE OF EXERCISE; PAYMENT. This Option shall be exercisable by
giving written notice to the Company at its principal office, presently Xxxxx
Xxxxx 0 Xxxxx, Xxxxxxx, Xxxx Xxxxxxxx, Xxxx.: Chief Financial Officer,
stating that the Optionee is exercising this Option, specifying the number of
shares being purchased and accompanied by payment in full of the aggregate
purchase price therefor: (a) in cash or by certified check; (b) with
previously acquired shares of Common Stock having an aggregate Fair Market
Value on the date of exercise equal to the aggregate exercise price of all
Options being exercised; (c) with any combination of cash, certified check or
shares of Common Stock having such value; or (d) any other form of legal
consideration that may be acceptable to the Board in its sole discretion.
4. REPRESENTATIONS AND WARRANTIES OF OPTIONEE. Notwithstanding the
foregoing, this Option shall not be exercisable by the Optionee unless: (a)
a Registration Statement under the Securities Act of 1933, as amended (the
"Securities Act") with respect to the shares of Common Stock to be received
upon the exercise of the Option shall be effective and current at the time of
exercise; or (b) there is an exemption from the registration requirements
under the
Securities Act for the issuance of the shares of Common Stock upon exercise.
The Optionee hereby represents and warrants to the Company, that: (i) the
shares of Common Stock to be issued upon the exercise of this Option are
being acquired by the Optionee for the Optionee's own account, for investment
only and not with a view to the resale or distribution thereof; and (ii) any
subsequent resale or distribution of shares of Common Stock by the Optionee
will be made only pursuant to (x) a Registration Statement under the
Securities Act which is effective and current with respect to the shares of
Common Stock being sold, or (y) a specific exemption from the registration
requirements of the Securities Act, but in claiming such exemption, the
Optionee shall, prior to any offer of sale or sale of such shares of Common
Stock, provide the Company with a favorable written opinion of counsel
satisfactory to the Company, in form, substance and scope satisfactory to the
Company, as to the applicability of such exemption to the proposed sale or
distribution. Such representation and warranties shall also be deemed to be
made by the Optionee upon each exercise of this Option. Nothing herein shall
be construed as requiring the Company to register the shares subject to this
Option under the Securities Act.
5. NO RIGHT TO CONTINUED ENGAGEMENT. Nothing herein shall confer
upon the Optionee any right to continue to be engaged by of the Company, any
of its Subsidiaries or a Parent, or interfere in any way with any right of
the Company, any Subsidiary or a Parent to terminate such engagement at any
time for any reason whatsoever without liability to the Company, the
Subsidiary or Parent.
6. LEGENDS; STOP TRANSFER INSTRUCTIONS. The Company may affix
appropriate legends upon the certificates for shares of Common Stock issued
upon exercise of this Option and may issue such "stop transfer" instructions
to its transfer agent in respect of such shares as it determines, in its
discretion, to be necessary or appropriate to: (a) prevent a violation of,
or to perfect an exemption from, the registration requirements of the
Securities Act and any applicable state securities laws; or (b) implement the
provisions of any agreement between the Company and the Optionee with respect
to such shares of Common Stock.
7. TAXES. The Company may withhold cash and/or shares of Common
Stock to be issued to the Optionee in the amount which the Company determines
is necessary to satisfy its obligation to withhold taxes or other amounts
incurred by reason of the grant or exercise of this Option, its disposition
or the disposition of the underlying shares of Common Stock. Alternatively,
the Company may require the Optionee to pay the Company such amount in cash
promptly upon demand.
8. COMPLIANCE WITH APPLICABLE LAWS. The Optionee agrees to comply
with all applicable laws relating to the grant and exercise of the Option and
the disposition of the shares of Common Stock acquired upon exercise of the
Option, including without limitation, federal and state securities and "blue
sky" laws, and applicable prospectus delivery requirements.
9. TRANSFERABILITY. The Option is not transferable and may be
exercised, during the lifetime of the Optionee, only by the Optionee.
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10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and any successor or assign of the
Company.
11. REGISTRATION. The parties confirm and acknowledge that Optionee
shall have piggy back registration rights pursuant to the terms of the
October 1, 1997 legislative services agreement entered into by Optionee and
the Company.
12. GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware,
without regard to the conflicts of law rules thereof.
13. VALIDITY. The invalidity, illegality or unenforceability of any
provision herein shall not affect the validity, legality or enforceability of
any other provision, all or which shall be valid, legal and enforceable to
the fullest extent permitted by applicable law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
MTR GAMING GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
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Its: President
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OPTIONEE
By: /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
(Name of Optionee)
000 00xx Xxxxxx
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Xxxxxxxxxx, XX 00000
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(Address)
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(Social Security Number)
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