Exhibit 10.2


 


NON-QUALIFIED
STOCK OPTION AGREEMENT


 


Southwest Casino Corporation (“Company”) and James B.
Druck (“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

  	
  /s/ Thomas E.
  Fox

  	
   

  
	
   

  	
  Its

  	
   President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  OPTIONEE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
    /s/ James B. Druck

  	
   

  
	
   

  	
  (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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