Exhibit
10.4


 


NON-QUALIFIED STOCK OPTION
AGREEMENT


 


Southwest Casino
Corporation (“Company”) and Thomas E. Fox (“Optionee”) enter into this
Non-Qualified Stock Option Agreement (the “Agreement”) effective July 1, 2004
(the “Grant Date”).


 


A.            Company desires to give 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 Optionee an
option to purchase shares of common stock of the Company.


 


B.            Optionee previously entered into a
Non-Qualified Stock Option Agreement on similar terms with Southwest Casino and
Hotel Corp. on July 1, 2004 (the “Prior Agreement”). On July 22, 2004, Company
and Southwest Casino and Hotel Corp. completed a reorganization in which
Southwest Casino and Hotel Corp. became a wholly-owned subsidiary of Company.
This Agreement supercedes and replaces the Prior Agreement.


 


C.            This Agreement is not issued under
and is not subject to the Company’s 2004 Stock Option Plan (the “Plan”).


 


Accordingly, Company
and Optionee agree as follows:


 


1.             Grant of Option.


 


The Company grants
Optionee the right, privilege, and option (“Option”) to purchase 300,000 shares
(the “Option Shares”) of the Company’s common stock, $.001 par value (the
“Common Stock”), according to the terms of this Agreement.  The Option is not 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 price per
share to be paid by Optionee upon exercise of the Option is $1.00.


 


3.             Duration of Option and Time of Exercise.


 


3.1           Initial
Period of Exercisability.  The
Option will become exercisable on the Grant Date as to 100,000 shares. The
remaining 200,000 shares will become exercisable (a) as to 8,333 shares on the
first day of each of the next 24 Months (with all remaining shares vesting on
the first day of the 24th month) and (b) as to 50 percent of any
shares not then exercisable, on the date the State of Missouri approves a law
permitting construction and operation of a casino by Company at Rockaway Beach,
Missouri or on the date the State of Minnesota approves construction and
operation of a harness-racing track by Company in the Twin Cities Metropolitan
Area of Minnesota. The provisions of (b) are cumulative such that if both the
Rockaway Beach casino and the harness-racing track are approved, the Option
will be exercisable as to all Option shares. 


 


Optionee’s right to exercise this Option is cumulative. Except as
provided in Section 3.2(b), this Option will become void and expire as to all
unexercised Option Shares at, 5:00 p.m. (Minnesota time) on July 21, 2009 (the
“Time of Termination”).


 

















 


3.2           Termination of Employment.


 


(a)           If, Optionee’s employment with
Employer or any Subsidiary terminates for any reason other than for Cause (as
defined in Section 4.4 of Optionee’s Employment Agreement with the Company
dated July 1, 2004 (the “Employment Agreement”)) or voluntary termination under
Section 4.1(f) of the Employment Agreement, Option will become exercisable
immediately as to all Option Shares and remain exercisable until the Time of
Termination.


 


(b)           If Employer
terminates Optionee’s employment with Employer for Cause, or Optionee
terminates Optionee’s employment voluntarily under Section 4.1(f) of the
Employment Agreement; no additional Option Shares will become exercisable,
Optionee may elect to purchase Option Shares for which this Option has become
exercisable for up to 30 days after termination, and this Option will become
void and expire as to all unexercised Option Shares at 5:00 p.m. on the 30th
day after termination of Optionee’s employment.


 


3.3           Change in Control.
If, with or without the consent of Employer, a Change in Control (as defined in
the Employment Agreement) occurs and within nine months after that Change in
Control, Employer terminates Employee’s employment under Section 4.1(d) of the
Employment Agreement or the Employee terminates his employment under Section
4.1(e) of the Employment Agreement, and Option has not expired, Option will
become exercisable immediately as to all shares and remain exercisable until
the Time of Termination.


 


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 of this Agreement.
Optionee may exercise this Option by delivering, in person, by facsimile or
electronic transmission (if confirmed), or through the mail, to the Company at
its principal executive office in Minnesota (Attention: Chief Financial
Officer), a written notice of exercise. 
This notice must (a) be in a form substantially similar to the attached
Notice of Exercise, or another form satisfactory to the Company, (b) identify
this Option, (c) specify the number of Option Shares Optionee intends to
purchase, and (d) be signed by Optionee. 
The Notice of Exercise must be accompanied by payment in full of the
total purchase price of Option Shares purchased. If this Option is being
exercised by any person or persons other than Optionee, the notice must be
accompanied by appropriate proof of right of that person or persons to exercise
this Option.  As soon as practicable
after an effective exercise of this Option, the Company will cause Optionee to
be recorded on the stock transfer books of the Company as the owner of Option
Shares purchased and deliver to Optionee of one or more duly issued stock
certificates evidencing such ownership.


 


4.2           Payment.  At the time of exercise, Optionee must pay
the total purchase price for Option Shares to be purchased entirely in cash
(including a check, bank draft or money order, payable to the order of the
Company); provided, however, that the Company, in its sole discretion, may
allow payment to be made, in whole or in part, by tender of a promissory note
(on terms acceptable to the Company in its sole discretion) or a Broker
Exercise Notice or previously acquired shares of Company common stock owned by
Optionee (“Previously Acquired Shares”), or by a combination of these methods.
If Optionee is permitted to pay the total purchase price of this Option in
whole or in part with Previously Acquired Shares, the value of those shares
will equal their Fair Market Value on the date of exercise of this Option.


 


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5.             Rights of
Optionee; Transferability.


 


5.1           Rights as a
Shareholder.  Optionee will have no
rights as a shareholder with respect to Option Shares issuable upon exercise of
this Option unless and until all conditions to the effective exercise of this Option
(including, without limitation, the conditions in Sections 4 and 6 of this
Agreement) have been satisfied and Optionee has become the holder of record of
Option Shares.  No adjustment will be
made for dividends or distributions with respect to this Option as to which
there is a record date preceding the date Optionee becomes the holder of record
of such Option Shares.


 


5.2           Restrictions on
Transfer.  Except under testamentary
will or the laws of descent and distribution, no right or interest of Optionee
in this Option before exercise may be assigned or transferred, or subjected to
any lien, during the lifetime of Optionee, either voluntarily or involuntarily,
directly or indirectly, by operation of law or otherwise. Optionee will,
however, be entitled to designate a beneficiary to receive this Option upon
Optionee’s death, and, if Optionee dies, Optionee’s legal representatives,
heirs and legatees may exercise this Option to the extent permitted under
Section 3.2(a) of this Agreement.


 


5.3           Breach of Confidentiality,
Assignment of Inventions or Non-Compete Agreements.  Notwithstanding anything in this Agreement
to the contrary, if Optionee breaches materially the terms of any
confidentiality, assignment of inventions or non-compete agreement entered into
with the Company or any Subsidiary, whether the breach occurs before or after
termination of Optionee’s employment with the Company or any Subsidiary, the
Board of Directors of the Company, in its sole discretion, may immediately
terminate all rights of Optionee under this Agreement without notice of any
kind.


 


6.             Securities Law and Other Restrictions.


 


6.1           Securities Law
Restrictions.  Notwithstanding any
other provision of this Agreement, the Company will not be required to issue,
and Optionee may not sell, assign, transfer or otherwise dispose of, any Option
Shares unless (a) there is in effect with respect to the Option Shares a
registration statement under the Securities Act and any applicable state or
foreign securities laws or an exemption from the registration requirement, and
(b) any other consent, approval or permit from any other regulatory body that
the Company, in its sole discretion, deems necessary or advisable has been
obtained. The Company may condition the issuance, sale or transfer of Option
Shares upon the receipt of any representations or agreements from the parties
involved, and the placement of any legends on certificates representing Option
Shares, as may be deemed necessary or advisable by the Company in order to
comply with securities law or other restrictions.


 


6.2           “Market Stand-Off” Restrictions.


 


(a)           Optionee agrees that, after the
effective date of a registration of any Company securities under the Securities
Act, Optionee will not, without the prior written consent of the Company or the
representative(s) of any underwriters, (i) sell, pledge, offer to sell,
contract to sell (including, without limitation, any short sale), sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock (whether such
shares or any such securities are then owned by Optionee or are thereafter
acquired), or (ii) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the


 


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 economic consequences of ownership of the
Common Stock, whether any such transaction described in clause (i) or (ii)
above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise.  


 


(b)           The
provisions of Section 6.2(a) will not apply (i) unless the executive officers
and directors of the Company have agreed to be bound by substantially the same
terms and conditions, (ii) to public offerings other than the Company’s initial
public offering and any public offering made within two (2) years thereafter,
(iii) to registrations relating solely to securities in connection with
employee benefit plans or in connection with mergers, consolidations,
reorganizations, or other transactions pursuant Rule 145 under the Securities
Act, or (iv) to transfers to donees who agree to be similarly bound.  The time period requested for this market
stand-off will be determined by the Company and the representative(s) of any
underwriters but must not exceed one hundred eighty (180) days from the date of
the final prospectus with respect to the applicable public offering.  The Company may impose stop-transfer
instructions during a stand-off period with respect to the securities of
Optionee subject to this restriction if necessary to enforce such restrictions.
The underwriters in connection with any public offering are intended third
party beneficiaries of this Section 6.2 and will have the right, power and
authority to enforce the provisions of this Section 6.2 as though they were a
party to this Agreement.


 


7.             Withholding Taxes.


 


The Company is
entitled to (a) withhold and deduct from future wages of Optionee (or from
other amounts that may be due and owing to Optionee from the Company), or make
other arrangements for the collection of, all legally required amounts
necessary to satisfy any federal, state or local withholding and
employment-related tax requirements attributable to this Option including,
without limitation, the grant or exercise of this Option or a disqualifying
disposition of any Option Shares, or (b) require Optionee to remit promptly the
amount of tax withholding to the Company before acting on Optionee’s notice of
exercise of this Option.  If the Company
is unable to withhold these amounts, for whatever reason, Optionee agrees to
pay to the Company an amount equal to the amount the Company would otherwise be
required to withhold under federal, state or local law.


 


8.             Adjustments.


 


If any
reorganization, merger, consolidation, recapitalization, liquidation,
reclassification, stock dividend, stock split, combination of shares, rights
offering, divestiture or extraordinary dividend (including a spin-off), or any
other similar change in the corporate structure or shares of the Company
occurs, the Company (or, if the Company is not the surviving corporation in the
transaction, the surviving corporation), in order to prevent dilution or
enlargement of the rights of Optionee, may make appropriate adjustment (which
determination will be conclusive) as to the number and kind of securities or
other property (including cash) subject to, and the exercise price of, this
Option.


 


9.             Employment Status.


 


Nothing in this
Agreement will be construed to (a) limit in any way the right of the Company or
any Subsidiary to terminate the employment or service of Optionee at any time,
or (b) be evidence of any agreement or understanding, express or implied, that
the Company or any Subsidiary will retain Optionee in any particular position,
at any particular rate of compensation or for any particular period of time.


 


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10.          Miscellaneous.


 


10.1         Binding Effect.  This Agreement is binding upon the heirs,
executors, administrators and successors of the parties to this Agreement.


 


10.2         Governing Law.  This Agreement and all rights and
obligations under this Agreement will be construed in accordance with and
governed by the laws of the State of Minnesota, without regard to conflicts of
laws provisions.  Any legal proceeding
related to this Agreement will be brought in an appropriate Minnesota court,
and the parties to this Agreement consent to the exclusive jurisdiction of the
court for this purpose.


 


10.3         Entire Agreement.  This Agreement supercedes and replaces the
Prior Agreement between Optionee and Southwest Casino and Hotel Corp. dated
July 1, 2004.  This Agreement states the
entire agreement and understanding of the parties to this Agreement with
respect to the grant and exercise of this Option and the administration of the
Plan and supersedes all prior agreements, arrangements, plans and
understandings relating to the grant and exercise of this Option and the
administration of the Plan.


 


10.4         Amendment and
Waiver.  Other than as provided in
the Plan, this Agreement may be amended, waived, modified or canceled only by a
written instrument executed by the parties to this Agreement or, in the case of
a waiver, by the party waiving compliance.


 


The parties to
this Agreement have executed this Agreement effective the day and year first
above written.


 


	
   

  	
  SOUTHWEST
  CASINO CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  By /s/ Jeffrey S.
  Halpern

  	
   

  
	
   

  	
  Its  

  	
   Chairman of the Board of Directors

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  OPTIONEE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
    /s/ Thomas E. Fox

  	
   

  
	
   

  	
  (Signature)

  
	
   

  	
   

  	
   

  
	
   

  	
  (Name and
  Address)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
					



 


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Southwest Casino Corporation


2001 Killebrew Drive, Suite 306


Minneapolis, MN 55425


 


	
  Attention:

  	
  Chief Financial
  Officer

  
	
  Re:

  	
  Notice of
  Exercise of Option

  



 


Please be advised
that I elect to exercise my option to
purchase                                     
shares (the “Shares”) of the Common Stock of Southwest Casino Corporation (the “Company”).
 A check (made payable to Southwest
Casino Corporation) in the amount of
$                    in
payment for the Shares is attached. The name or names to be on the stock
certificate representing the Shares and the address and social security number
of that person is as follows:


 


	
  Name:

  	
   

  
	
  Address:

  	
   

  
	
  City, State, Zip:

  	
   

  
	
  SS #: 

  	
   

  
					



 


I represent and
agree that all of the Shares are being acquired for investment and not with a
view to the sale or distribution of the Shares.  I understand that the Shares have not been registered under the
Securities Act of 1933 or any state securities laws, and may not be sold,
assigned, transferred, encumbered or otherwise disposed of except pursuant to
registration under the Securities Act of 1933 and applicable state securities
laws or under an exemption from the registration requirement. I understand that
I must establish the availability of any exemption from registration to the
satisfaction of the Company. I understand that certificates representing the
Shares will bear an appropriate legend describing these restrictions on
transfer.


 


I have been
informed by the Company that it has no obligation now or at any future date to
register the Shares or to make available to me the information required by Rule
144 under the Securities Act of 1933 to allow resale of the Share under the
provisions of such Rule.


 


I have received
such information regarding the Company as I have required, including a copy of
the Company’s 2004 Stock Incentive Plan, and I have had an opportunity to ask
questions of, and receive answers from, the Company and persons acting on its
behalf concerning the Company’s business, financial condition and future plans
and activities.  


 


	
  I am a resident of the
  State of: 

  	
   

  
	
   

  	
   

  	
  (Signature)

  
	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (Print Name)

  
				



 


ACKNOWLEDGMENT


 


This Notice of
Exercise and payment of the exercise price were received at
                      
o’clock on                         ,
20    , by the undersigned on behalf of the Company. 


 


	
   

  	
   

  	
   

  
	
   

  	
  Chief Financial
  Officer, Southwest Casino Corporation

  



 


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