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EXHIBIT 10.46
TRANS WORLD GAMING CORP.
1998 STOCK OPTION PLAN
ARTICLE I
ESTABLISHMENT OF THE PLAN
Trans World Gaming Corp. (the "Company") hereby establishes this 1998
Stock Option Plan (the "Plan") upon the terms and conditions hereinafter
stated.
ARTICLE II
PURPOSE OF THE PLAN
The purpose of this Plan is to improve the growth and profitability
of the Company by providing Employees with a proprietary interest in the
Company as an incentive to contribute to the success of the Company, and
rewarding those Employees for outstanding performance and the attainment of
targeted goals. All Incentive Stock Options issued under this Plan are
intended to comply with the requirements of Section 422 of the Code, and the
regulations thereunder, and all provisions hereunder shall be read,
interpreted and applied with that purpose in mind.
ARTICLE III
DEFINITIONS
3.01 "Board" means the Board of Directors of the Company.
3.02 "Code" means the Internal Revenue Code of 1986, as amended.
3.03 "Committee" means a committee of two or more directors appointed
by the Board pursuant to Article IV hereof, each of whom shall be a
"non-employee director" as defined in Rule 16b-3(b)(3)(i) of the Exchange Act
or any successor thereto.
3.04 "Common Stock" means shares of the common stock, $.001 par value
per share, of the Company.
3.05 "Disability" means any physical or mental impairment which
qualifies an Employee for disability benefits under the applicable long-term
disability plan maintained by the Company or, if no such plan applies, which
would qualify such Employee for disability benefits under the Federal Social
Security System.
3.06 "Effective Date" means the date upon which the Board approves
this Plan.
3.07 "Employee" means any person who is employed by the Company.
3.08 "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
3.09 "Fair Market Value" shall be equal to the fair market value per
share of the Company's Common Stock on the date an Option is granted. For
purposes hereof, the Fair Market Value of a share of Common Stock shall be the
mean between the high bid and low asked prices that day on the principal
market then in use, or if no such quotations are available, the fair market
value on the date in question of a share as determined by a majority of the
Board in good faith.
3.10 "Incentive Stock Option" means any Option granted under this
Plan which the Board intends (at the time it is granted) to be an incentive
stock option within the meaning of Section 422 of the Code or any successor
thereto.
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3.11 "Non-Qualified Stock Option" means any Option granted under this
Plan which is not an Incentive Stock Option.
3.12 "Officer" means an Employee whose position in the Company is
that of a corporate officer, as determined by the Board.
3.13 "Option" means a right granted under this Plan to purchase
Common Stock.
3.14 "Optionee" means an Employee or former Employee to whom an
Option is granted under the Plan.
3.15 "Retirement" means a termination of employment which constitutes
a "retirement" under any applicable qualified pension benefit plan maintained
by the Company or as otherwise determined by the Committee.
3.16 "Stock Option Agreement" means the written agreement pursuant to
Section 8.01 hereof that sets forth the terms, conditions, restrictions and
privileges for an Incentive Stock Option.
ARTICLE IV
ADMINISTRATION OF THE PLAN
4.01 DUTIES OF THE COMMITTEE. The Plan shall be administered and
interpreted by the Committee, as appointed from time to time by the Board
pursuant to Section 4.02. The Committee shall have the authority in its
absolute discretion to adopt, amend and rescind such rules, regulations and
procedures as, in its opinion, may be advisable in the administration of the
Plan, including, without limitation, rules, regulations and procedures which
(i) deal with satisfaction of an Optionee's tax withholding obligation
pursuant to Section 12.02 hereof, (ii) include arrangements to facilitate the
Optionee's ability to borrow funds for payment of the exercise or purchase
price of an Option, if applicable, from securities brokers and dealers, and
(iii) include arrangements which provide for the payment of some or all of
such exercise or purchase price by delivery of previously owned shares of
Common Stock or other property and/or by withholding some of the shares of
Common Stock which are being acquired. The interpretation and construction by
the Committee of any provisions of the Plan, any rule, regulation or procedure
adopted by it pursuant thereto or of any Option shall be final and binding.
4.02 APPOINTMENT AND OPERATION OF THE COMMITTEE. The members of the
Committee shall be appointed by, and will serve at the pleasure of, the Board.
The Board from time to time may remove members from, or add members to, the
Committee, provided the Committee shall continue to consist of two or more
members of the Board, each of whom shall be a "non-employee director" as
defined in Rule 16b-3(b)(3)(i) of the Exchange Act or any successor thereto.
The Committee shall act by vote or written consent of a majority of its
members. Subject to the express provisions and limitations of the Plan, the
Committee may adopt such rules, regulations and procedures as it deems
appropriate for the conduct of its affairs. It may appoint one of its members
to be chairman and any person, whether or not a member, to be its secretary or
agent. The Committee shall report its actions and decisions to the Board at
the next regularly scheduled meeting of the Board following each meeting of
the Committee.
4.03 REVOCATION FOR MISCONDUCT. The Committee may by resolution
immediately revoke, rescind and terminate any Option, or portion thereof, to
the extent not yet vested, previously granted or awarded under this Plan to an
Employee who is discharged from the employ of the Company for cause, which,
for purposes hereof, shall mean termination because of the Employee's personal
dishonesty, incompetence, willful misconduct, breach of fiduciary duty
involving personal profit, intentional failure to perform stated duties, or
willful violation of any law, rule, or regulation (other than traffic
violations or similar offenses).
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4.04 LIMITATION ON LIABILITY. No member of the Committee shall be
liable for any action or determination made in good faith with respect to the
Plan, any rule, regulation or procedure adopted by it pursuant thereto or any
Options granted under it. If a member of the Committee is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative, arbitrative or
investigative, by reason of anything done or not done by him in such capacity
under or with respect to the Plan, the Company shall indemnify him to the
extent permitted by the Company's Articles of Incorporation and Bylaws and by
the Nevada General Corporation Law.
4.05 COMPLIANCE WITH LAW AND REGULATIONS. All Options granted
hereunder shall be subject to all applicable federal and state laws, rules and
regulations and to such approvals by any government or regulatory agency as
may be required. The Company shall not be required to issue or deliver any
certificates for shares of Common Stock prior to the completion of any
registration or qualification of or obtaining of consents or approvals with
respect to such shares under any federal or state law or any rule or
regulation of any government body, which the Company shall, in its sole
discretion, determine to be necessary or advisable. Moreover, no Option may be
exercised if such exercise would be contrary to applicable laws and
regulations.
4.06 RESTRICTIONS ON TRANSFER. The Company may place a legend upon
any certificate representing shares acquired pursuant to an Option granted
hereunder noting that the transfer of such shares may be restricted by
applicable laws and regulations.
ARTICLE V
ELIGIBILITY
Options may be granted to such Employees of the Company as may be
designated from time to time by the Committee, pursuant to guidelines, if any,
which may be adopted by the Committee from time to time.
ARTICLE VI
COMMON STOCK COVERED BY THE PLAN
6.01 OPTION SHARES. The aggregate number of shares of Common Stock
which may be issued pursuant to this Plan, subject to adjustment as provided
in Article IX, shall be 2,000,000 shares of Common Stock. None of such shares
shall be the subject of more than one Option at any time, but if an Option as
to any shares is surrendered before exercise, or expires or terminates for any
reason without having been exercised in full, or for any other reason ceases
to be exercisable, the number of shares covered thereby shall again become
available for grant under the Plan as if no Options had been previously
granted with respect to such shares.
6.02 SOURCE OF SHARES. The shares of Common Stock issued under the
Plan may be authorized but unissued shares, treasury shares or shares
purchased by the Company on the open market or from private sources for use
under the Plan.
ARTICLE VII
DETERMINATION OF
OPTIONS, NUMBER OF SHARES, ETC.
The Committee shall, in its discretion, determine from time to time
which Employees will be granted Options under the Plan, the number of shares
of Common Stock subject to each Option, whether each Option will be an
Incentive Stock Option or a Non-Qualified Stock Option and the exercise price
of an Option. In making all such determinations there shall be taken into
account the duties, responsibilities and performance of each respective
Employee, his present and potential contributions to the growth and success of
the Company, his salary and such other factors as the Committee shall deem
relevant to accomplishing the purposes of the Plan.
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ARTICLE VIII
OPTIONS
Each Option granted hereunder shall be on the following terms and
conditions:
8.01 STOCK OPTION AGREEMENT. The proper Officers or a member of the
Committee on behalf of the Company and each Optionee shall execute a Stock
Option Agreement which shall set forth the total number of shares of Common
Stock to which it pertains, the exercise price, whether it is a Non-Qualified
Stock Option or an Incentive Stock Option and such other terms, conditions,
restrictions and privileges as the Committee in each instance shall deem
appropriate, provided they are not inconsistent with the terms, conditions and
provisions of this Plan. Each Optionee shall receive a copy of his executed
Stock Option Agreement.
8.02 OPTION EXERCISE PRICE.
(a) INCENTIVE STOCK OPTIONS. The per share price at which the
subject Common Stock may be purchased upon exercise of an Incentive Stock
Option shall be no less than one hundred percent (100%) of the Fair Market
Value of a share of Common Stock at the time such Incentive Stock Option is
granted, except as provided in Section 8.09(b).
(b) NON-QUALIFIED STOCK OPTIONS. The per share price at which
the Common Stock may be purchased upon exercise of a Non-Qualified Stock
Option shall be no less than eighty-five percent (85%) of the Fair Market
Value of a share of Common Stock at the time such Non-Qualified Option is
granted.
8.03 VESTING AND EXERCISE OF OPTIONS
(a) GENERAL RULES. Incentive Stock Options and Non-Qualified
Stock Options granted to Employees shall become vested and exercisable at the
rate, to the extent and subject to such limitations as may be specified by the
Committee. Notwithstanding the foregoing, no vesting shall occur on or after
an Employee's employment with the Company is terminated for any reason other
than his death, Disability or Retirement. In determining the number of shares
of Common Stock with respect to which Options are vested and/or exercisable,
fractional shares will be rounded up to the nearest whole number if the
fraction is 0.5 or higher, and down if it is less.
(b) VESTING UPON TERMINATION OF EMPLOYMENT, DEATH, DISABILITY
OR RETIREMENT. Unless the Committee shall specifically state otherwise at the
time an Option is granted, only those Options granted to Employees under this
Plan which are vested and exercisable on the date an Optionee terminates his
employment with the Company because of his termination of employment under
certain circumstances as set forth in the Optionee's Stock Option Agreement,
or because of his death, Disability or Retirement shall be vested and
exercisable by the Optionee thereafter as set forth in Section 8.04.
(c) ACCELERATED VESTING FOR CHANGES IN CONTROL.
Notwithstanding the general rule described in Section 8.03(a), all outstanding
Options shall become immediately vested and exercisable in the event there is
a change in control of the Company. A "change in control of the Company" for
this purpose shall mean a change in control of a nature that would be required
to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Exchange Act, or any successor thereto, whether or not
the Company in fact is required to comply with Regulation 14A thereunder.
8.04 DURATION OF OPTIONS.
(a) GENERAL RULE. Except as provided in Sections 8.04(b) and
8.09, each Option granted to Employees shall be exercisable at any time on or
after it vests and becomes exercisable until the earlier of (i) ten (10) years
after its date of grant or (ii) three (3) months after the date on which the
Optionee ceases to be employed by the Company, unless the Committee in its
discretion decides at the time of grant or thereafter to extend such period of
exercise upon termination of employment from three (3) months to a period not
exceeding five (5) years.
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(b) EXCEPTION FOR TERMINATION DUE TO DEATH, DISABILITY OR
RETIREMENT. If an Employee dies while in the employ of the Company or
terminates employment with the Company as a result of Disability or Retirement
without having fully exercised his Options, the Optionee or his legal
representative or guardian, or the executors, administrators, legatees or
distributees of his estate shall have the right, during the twelve-month
period following the earlier of his death, Disability or Retirement, to
exercise such Options to the extent vested on the date of such death,
Disability or Retirement. In no event, however, shall any Option be
exercisable within six (6) months after the date of grant or more than ten
(10) years from the date it was granted.
8.05 NONASSIGNABILITY. Options shall not be transferable by an
Optionee except by will or the laws of descent or distribution, and during an
Optionee's lifetime shall be exercisable only by such Optionee or the
Optionee's guardian or legal representative. Notwithstanding the foregoing, or
any other provision of this Plan, an Optionee who holds Non-Qualified Stock
Options may transfer such Options to his or her spouse, lineal ascendants,
lineal descendants, or to a duly established trust for the benefit of one or
more of these individuals. Options so transferred may thereafter be
transferred only to the Optionee who originally received the grant or to an
individual or trust to whom the Optionee would have initially transferred the
Option pursuant to this Section 8.05. Options which are transferred pursuant
to this Section 8.05 shall be exercisable by the transferee according to the
same terms and conditions as applied to the Optionee.
8.06 MANNER OF EXERCISE. Options may be exercised in part or in whole
and at one time or from time to time. The procedures for exercise shall be set
forth in the written Stock Option Agreement provided for in Section 8.01 above.
8.07 PAYMENT FOR SHARES. Payment in full of the purchase price for
shares of Common Stock purchased pursuant to the exercise of any Option shall
be made to the Company upon exercise of the Option. All shares sold under the
Plan shall be fully paid and nonassessable. Payment for shares may be made by
the Optionee in cash or, at the discretion of the Committee, by delivering
shares of Common Stock (including shares acquired pursuant to the exercise of
an Option) or other property equal in Fair Market Value to the purchase price
of the shares to be acquired pursuant to the Option, by withholding some of
the shares of Common Stock which are being purchased upon exercise of an
Option, or any combination of the foregoing. Notwithstanding the foregoing
payment may also be made by delivering a properly executed exercise notice
together with irrevocable instructions to a broker to promptly deliver to the
Company the amount of sale or loan proceeds to pay the exercise price.
8.08 VOTING AND DIVIDEND RIGHTS. No Optionee shall have any voting or
dividend rights or other rights of a shareholder in respect of any shares of
Common Stock covered by an Option prior to the time that his name is recorded
on the Company's shareholder ledger as the holder of record of such shares
acquired pursuant to an exercise of an Option.
8.09 ADDITIONAL TERMS APPLICABLE TO INCENTIVE STOCK OPTIONS. All
Options issued under the Plan as Incentive Stock Options will be subject, in
addition to the terms detailed in Sections 8.01 to 8.08 above, to those
contained in this Section 8.09.
(a) $100,000 LIMITATION. Notwithstanding any contrary
provisions contained elsewhere in this Plan and as long as required by Section
422 of the Code, the aggregate Fair Market Value, determined as of the time an
Incentive Stock Option is granted, of the Common Stock with respect to which
Incentive Stock Options are exercisable for the first time by the Optionee
during any calendar year, under this Plan and stock options that satisfy the
requirements of Section 422 of the Code under any other stock option plan or
plans maintained by the Company, shall not exceed $100,000.
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(b) LIMITATION ON TEN PERCENT SHAREHOLDERS. The price at
which shares of Common Stock may be purchased upon exercise of an Incentive
Stock Option granted to an individual who, at the time such Incentive Stock
Option is granted, owns, directly or indirectly, more than ten percent (10%)
of the total combined voting power of all classes of stock issued to
shareholders of the Company, shall be no less than one hundred and ten percent
(110%) of the Fair Market Value of a share of the Common Stock of the Company
at the time of grant, and such Incentive Stock Option shall by its terms not
be exercisable after the earlier of the date determined under Section 8.03 or
the expiration of five (5) years from the date such Incentive Stock Option is
granted.
(c) NOTICE OF DISPOSITION; WITHHOLDING; ESCROW. An Optionee
shall immediately notify the Company in writing of any sale, transfer,
assignment or other disposition (or action constituting a disqualifying
disposition within the meaning of Section 421 of the Code) of any shares of
Common Stock acquired through exercise of an Incentive Stock Option, within
two (2) years after the grant of such Incentive Stock Option or within one (1)
year after the acquisition of such shares, setting forth the date and manner
of disposition, the number of shares disposed of and the price at which such
shares were disposed. The Company shall be entitled to withhold from any
compensation or other payments then or thereafter due to the Optionee such
amounts as may be necessary to satisfy any withholding requirements of federal
or state law or regulation and, further, to collect from the Optionee any
additional amounts which may be required for such purpose. The Committee may,
in its discretion, require shares of Common Stock acquired by an Optionee upon
exercise of an Incentive Stock Option to be held in an escrow arrangement for
the purpose of enabling compliance with the provisions of this Section 8.09(c).
ARTICLE IX
ADJUSTMENTS FOR CAPITAL CHANGES
The aggregate number of shares of Common Stock available for issuance
under this Plan, the number of shares to which any Option relates and the
exercise price per share of Common Stock under any Option shall be
proportionately adjusted for any increase or decrease in the total number of
outstanding shares of Common Stock issued subsequent to the effective date of
this Plan resulting from a split, subdivision or consolidation of shares or
any other capital adjustment, the payment of a stock dividend, or other
increase or decrease in such shares effected without receipt or payment of
consideration by the Company. If, upon a merger, consolidation,
reorganization, liquidation, recapitalization or the like of the Company, the
shares of the Company's Common Stock shall be exchanged for other securities
of the Company or of another corporation, each recipient of an Option shall be
entitled, subject to the conditions herein stated, to purchase or acquire such
number of shares of Common Stock or amount of other securities of the Company
or such other corporation as were exchangeable for the number of shares of
Common Stock of the Company which such optionees would have been entitled to
purchase or acquire except for such action, and appropriate adjustments shall
be made to the per share exercise price of outstanding Options.
ARTICLE X
AMENDMENT AND TERMINATION OF THE PLAN
The Board may, by resolution, at any time terminate or amend the Plan
with respect to any shares of Common Stock as to which Options have not been
granted, subject to any required shareholder approval or any shareholder
approval which the Board may deem to be advisable for any reason, such as for
the purpose of obtaining or retaining any statutory or regulatory benefits
under tax, securities or other laws or satisfying any applicable stock
exchange listing requirements. The Board may not, without the consent of the
holder of an Option, alter or impair any Option previously granted or awarded
under this Plan as specifically authorized herein.
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ARTICLE XI
EMPLOYMENT RIGHTS
Neither the Plan nor the grant of any Options hereunder nor any
action taken by the Committee or the Board in connection with the Plan shall
create any right on the part of any Employee of the Company to continue in
such capacity.
ARTICLE XII
WITHHOLDING
12.01 TAX WITHHOLDING. The Company may withhold from any cash payment
made under this Plan sufficient amounts to cover any applicable withholding
and employment taxes, and if the amount of such cash payment is insufficient,
the Company may require the Optionee to pay to the Company the amount required
to be withheld as a condition to delivering the shares acquired pursuant to an
Option. The Company also may withhold or collect amounts with respect to a
disqualifying disposition of shares of Common Stock acquired pursuant to
exercise of an Incentive Stock Option, as provided in Section 8.09(c).
12.02 METHODS OF TAX WITHHOLDING. The Committee is authorized to
adopt rules, regulations or procedures which provide for the satisfaction of
an Optionee's tax withholding obligation by the retention of shares of Common
Stock to which the Employee would otherwise be entitled pursuant to an Option
and/or by the Optionee's delivery of previously owned shares of Common Stock
or other property.
ARTICLE XIII
EFFECTIVE DATE OF THE PLAN; TERM
13.01 EFFECTIVE DATE OF THE PLAN. This Plan shall become effective on
the Effective Date, and Options may be granted hereunder as of or after the
Effective Date and prior to the termination of the Plan, provided that no
Incentive Stock Option issued pursuant to this Plan shall qualify as such
unless this Plan is approved by the requisite vote of the holders of the
outstanding voting shares of the Company at a meeting of shareholders of the
Company held within twelve (12) months before or after the Effective Date.
13.02 TERM OF PLAN. Unless sooner terminated, this Plan shall remain
in effect for a period of ten (10) years ending on the tenth anniversary of
the Effective Date. Termination of the Plan shall not affect any Options
previously granted and such Options shall remain valid and in effect until
they have been fully exercised or earned, are surrendered or by their terms
expire or are forfeited.
ARTICLE XIV
MISCELLANEOUS
14.01 GOVERNING LAW. To the extent not governed by Federal law, this
Plan shall be construed under the laws of the State of Nevada.
14.02 PRONOUNS. Wherever appropriate, the masculine pronoun shall
include the feminine pronoun, and the singular shall include the plural.
