Exhibit 10.2
INCENTIVE STOCK OPTION
AGREEMENT
THIS INCENTIVE STOCK OPTION
AGREEMENT (the “Agreement”) is entered into and
effective June 29, 2006 (the “Date of Grant”), by and
between Southwest Casino Corporation (the “Company”)
and Tracie Wilson (the “Optionee”).
A.
The Company has adopted its 2004
Stock Option Plan (the “Plan”) which authorizes the
Board of Directors of the Company, or a committee as provided for
in the Plan (the Board or this committee are referred to as the
“Committee” in this Agreement), to grant incentive
stock options to employees of the Company and its Subsidiaries (as
defined in the Plan).
B.
The Company desires to give the
Optionee an inducement to acquire a proprietary interest in the
Company and an added incentive to advance the interests of the
Company by granting to the Optionee an option to purchase shares of
common stock of the Company under the Plan.
C.
Terms stated but not otherwise
defined in this Agreement have the meanings assigned to those terms
in the Plan.
Accordingly, the parties agree as
follows:
1.
Grant of Option.
The Company hereby grants to the
Optionee the right, privilege, and option (the
“Option”) to purchase 50,000 shares (the “Option
Shares”) of the Company’s common stock, $.001 par value
(the “Common Stock”), according to the terms and
subject to the conditions stated in this Agreement and as stated in
the Plan. Subject to the provisions of Section 10 of this
Agreement, the Option is intended to be an “incentive stock
option,” as that term is used in Section 422 of the Internal
Revenue Code of 1986, as amended (the
“Code”).
2.
Option Exercise
Price.
The per share price to be paid by
Optionee upon exercise of this Option will be $0.75.
3.
Duration of Option and Time of
Exercise.
3.1
Initial Period
of Exercisability . Subject to Sections
3.2 and 3.3 below, this Option will become exercisable with respect
to the Option Shares in 12 installments beginning on the last day
of each fiscal quarter of the Company, as provided in the table
below. The table below states the initial dates of
exercisability of each installment and the number of Option Shares
as to which this Option will become exercisable on those
dates:
|
Initial Date of
Exercisability
|
|
Number of Option Shares
Available for Exercise
|
|
June 30, Sept. 30 & Dec. 31, 2006
|
|
4,167
|
|
March 31, June 30, Sept. 30 and Dec. 31,
2007
|
|
4,167
|
|
March 31, June 30, Sept. 30 and Dec. 31,
2008
|
|
4,166
|
|
March 31, 1 2009
|
|
4,167
|
The right to exercise this Option is
cumulative with respect to the Option Shares becoming exercisable
on the dates stated above; provided, however, that in no event will
this Option be
exercisable after, and this Option
will become void and expire as to all unexercised Option Shares at,
5:00 p.m. (Minnesota time) on June 28, 2016 (the “Time of
Termination”).
3.2
Termination of
Employment .
(a)
Termination
Due to Death or Disability or Retirement . If Optionee’s
employment with the Company and all Subsidiaries is terminated by
reason of the Optionee’s death, Disability or Retirement,
this Option will become immediately exercisable in full as of the
date of death, Disability or Retirement and remain exercisable for
a period of 12 months after such termination (but not after the
Time of Termination).
(b)
Termination
for Reasons Other Than Death, Disability or Retirement
. Except as
provided in Section 3.3, if Optionee’s employment with the
Company and all Subsidiaries is terminated for any reason other
than death, Disability or Retirement, or Optionee is in the employ
of a Subsidiary and the Subsidiary ceases to be a Subsidiary of the
Company (unless the Optionee continues in the employ of the Company
or another Subsidiary), all rights of the Optionee under the Plan
and this Agreement will terminate immediately without notice of any
kind and no portion of the Option will be exercisable; provided,
however, that if Optionee’s termination is due to any reason
other than voluntary termination by the Optionee or termination by
the Company or any Subsidiary for “Cause” (or
Optionee’s death, Disability or Retirement), this Option will
remain exercisable to the extent exercisable on the date of
Optionee’s termination for a period of 90 days.
3.3
Change in
Control .
(a)
Impact of
Change in Control . If a Change in
Control of the Company occurs whereby the acquiring entity or
successor to the Company does not assume this Option or replace it
with a substantially equivalent incentive award, then, as of the
date of the Change of Control, this Option will vest as to all
shares and become immediately exercisable in full and will remain
exercisable until the Time of Termination, regardless of whether
the Optionee remains in the employ of the Company or any
Subsidiary. In addition, if a change in control occurs, the
Committee, in its sole discretion and without consent of the
Optionee, may determine that the Optionee will receive, with
respect to some or all of the Option Shares, cash in the amount of
the excess of the Fair Market Value (as defined in the Plan) of
those Option Shares immediately before the effective date of the
Change in Control over the per share exercise price of this
Option.
(b)
Limitation on
Change in Control Payments . Notwithstanding
anything in this Section 3.3 to the contrary, if, with respect
to the Optionee, the acceleration of the vesting of this Option as
provided above (which acceleration could be deemed a
“payment” within the meaning of Section 280G(b)(2)
of the Code), together with any other payments that the Optionee
has the right to receive from the Company or any corporation which
is a member of an “affiliated group” (as defined in
Section 1504(a) of the Code without regard to
Section 1504(b) of the Code) of which the Company is a member,
would constitute a “parachute payment” (as defined in
Section 280G(b)(2) of the Code), the payments to the Optionee
stated herein will be reduced to the largest amount that will
result in no portion of the payments being subject to the excise
tax imposed by Section 4999 of the Code; provided, however,
that if the Optionee is subject to a separate agreement with the
Company or a Subsidiary that expressly addresses the
2
potential
application of Sections 280G or 4999 of the Code (including,
without limitation, that “payments” under such
agreement or otherwise will be reduced, that the Optionee will have
the discretion to determine which “payments” will be
reduced, that such “payments” will not be reduced or
that such “payments” will be “grossed up”
for tax purposes), then this Section 3.3(b) will not apply, and any
payments to the Optionee under Section 3.3(a) of this Agreement
will be treated as payments arising under such separate
agreement.
4.
Manner of Option
Exercise.
4.1
Notice
. Optionee
may exercise this Option, in whole or in part from time to time,
subject to the conditions in the Plan and in this Agreement, by
delivery, in person, by facsimile or electronic transmission (if
confirmed) or through the mail, to the Company at its principal
executive office (Attention: Chief Financial Officer), of a written
notice of exercise. This notice must (a) be in a form
substantially similar to the form attached to this Agreement as
Exhibit A , or such other form as is satisfactory to the
Committee, (b) identify this Option, (c) specify the number of
Option Shares with respect to which this Option is being exercised,
and (d) be signed by the person or persons so exercising this
Option. The not
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