EXHIBIT 4.21
1998 STOCK INCENTIVE PLAN
FORM OF NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT is entered into as of
___________ __, ____ by and between MTR Gaming Group, Inc. a Delaware
corporation (the "Company"), and ___________________ (the "Optionee").
In consideration of the mutual promises hereinafter set forth, and for
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
1. OPTION GRANT. The Company, in accordance with the allotment made
by the Company's Board of Directors and subject to the terms and conditions
of the 1998 Stock Incentive Plan of the Company adopted by the Company's
Board of Directors on _____________ __, ______, and subject to approval by
the Company's stockholders (the "Plan"), grants as of the date hereof to the
Optionee an option to purchase an aggregate of _________________ shares of
the common stock, $.0001 par value per share, of the Company ("Common Stock")
at $__________ per share, being at least equal to the fair market value of
such shares of Common Stock on the date hereof. 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. The term of this option shall be five (5) years
from ___________________ ___, ______, subject to earlier termination as
provided in the Plan (the "Term"). This option is exercisable at anytime
during the Term, subject to the terms of this option and the Plan, including,
but not limited to, approval by the Company's stockholders. 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 ▇▇▇▇▇
▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇.: 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; or (c) with any combination of cash, certified check
or shares of Common Stock having such value.
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. LISTING OF SHARES. Notwithstanding anything herein to the
contrary, if at any time the Committee shall determine in its sole discretion
that the listing or qualification of the shares of Common Stock subject to
this option on any securities exchange, Nasdaq or under any applicable law,
or the consent or approval of any governmental regulatory body, is necessary
or desirable as a condition of, or in connection with, the granting of an
option, or the issue of shares of Common Stock thereunder, this option may
not be exercised in whole or in part unless such listing, qualification,
consent or approval shall have been effected or obtained free of any
conditions not acceptable to the Committee.
6. NO RIGHT TO CONTINUED EMPLOYMENT. Nothing in the Plan or herein
shall confer upon the Optionee any right to continue in the employ 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
employment at any time for any reason whatsoever without liability to the
Company, the Subsidiary or Parent.
7. 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 the Plan or any agreement between the Company and the Optionee with
respect to such shares of Common Stock.
8. 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.
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9. APPLICABILITY OF THE PLAN. The Company and the Optionee agree
that they will both be subject to and bound by all of the terms and
conditions of the Plan, a copy of which is attached hereto and made a part
hereof. Any capitalized term not defined herein shall have the meaning
ascribed to it in the Plan. In the event of a conflict between the terms of
this Contract and the terms of the Plan, the terms of the Plan shall govern.
10. COMPLIANCE WITH APPLICABLE LAWS. The Optionee agrees to comply
with all applicable laws relating to the Plan and 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.
11. TRANSFERABILITY. The option is not transferable otherwise than
by will or the laws of descent and distribution and may be exercised, during
the lifetime of the Optionee, only by the Optionee or the Optionee's legal
representatives.
12. SUCCESSORS AND ASSIGNS. Except as otherwise provided by the Plan,
this Contract shall be binding upon and inure to the benefit of the parties
hereto, any successor or assign of the Company and to any Legal
Representative of the Optionee.
13. RESTRICTION ON SALES. The Optionee agrees not to sell more than
25,000 shares of Common Stock issuable pursuant to this agreement in any
calendar week without the written consent of the Company.
14. 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.
15. 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.
16. AMENDMENTS. The Optionee agrees that the Company may amend the
Plan and the options granted to the Optionee under the Plan, subject to the
limitations contained in the Plan.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
MTR GAMING GROUP, INC.
By:
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Name:
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Its:
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OPTIONEE
By:
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(Name of Optionee)
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(Address)
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(Social Security Number)
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