NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, dated as of February 24, 1998 is made by and between
Xxxxxxx'x Food Markets, Inc., a Texas corporation (hereinafter referred to as
the "Company"), and A. Xxxxxx Xxxxxxxxxxx, a member of the Board of Directors of
the Company, hereinafter referred to as "Optionee".
WHEREAS, the Company wishes to afford the Optionee the opportunity to
purchase shares of its common stock, par value $.25 per share (the "Common
Stock");
WHEREAS, the Company wishes to carry out the Plan (as hereinafter
defined), the terms of which are hereby incorporated by reference and made a
part of this Agreement; and
WHEREAS, the Committee (as hereinafter defined), appointed to
administer the Plan, has determined that it would be to the advantage and best
interest of the Company and its shareholders to grant the Non-Qualified Options
provided for herein to the Optionee as an incentive for increased efforts during
his term of office with the Company or its Subsidiaries or Affiliates, and has
advised the Company thereof and instructed the undersigned officers to issue
said Options;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever the following terms are used in this Agreement, they shall
have the meaning specified in the Plan or below unless the context clearly
indicates to the contrary.
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SECTION 1.1 - AFFILIATE
"Affiliate" shall mean, with respect to the Company, any corporation
directly or indirectly controlling, controlled by, or under common control with,
the Company or any other entity designated by the Board of Directors of the
Company in which the Company or an Affiliate has an interest.
SECTION 1.2 - CAUSE
"Cause" shall mean (i) Optionee's willful and continued failure to
perform Optionee's duties with respect to the Company or its subsidiaries which
continues beyond ten days after a written demand for substantial performance is
delivered to Optionee by the Company or (ii) misconduct by Optionee involving
(x) dishonesty or breach of trust in connection with Optionee's employment or
(y) conduct which would be a reasonable basis for an indictment of Optionee for
a felony or for a misdemeanor involving moral turpitude.
SECTION 1.3 - CODE
"Code" shall mean the Internal Revenue Code of 1986, as amended.
SECTION 1.4 - COMMITTEE
"Committee" shall mean the Compensation Committee of the Company.
SECTION 1.5 - EMPLOYMENT
"employment", with respect to Optionee, shall refer to his serving as
a member of the Board of Directors of the Company.
SECTION 1.6 - GRANT DATE
"Grant Date" shall mean the date on which the Options provided for in
this Agreement were granted.
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SECTION 1.7 - MANAGEMENT GROUP
"Management Group" shall mean the group consisting of all or certain
Officers of the Company on the date hereof, whether or not such person remains
in that capacity.
SECTION 1.8 - OFFICER
"Officer" shall mean the Chairman of the Board, the President, any
Executive Vice President, Senior Vice President or Vice President, the Treasurer
or the Secretary of the Company.
SECTION 1.9 - OPTIONS
"Options" shall mean the non-qualified options, which may include a
Time Option and/or a Performance Option, to purchase Common Stock granted under
this Agreement.
SECTION 1.10 - PERFORMANCE OPTION
"Performance Option" shall mean an Option with respect to which the
commencement of exercisability is governed by Section 3.1(b) hereof.
SECTION 1.11 - PERMANENT DISABILITY
The Optionee shall be deemed to have a "Permanent Disability" when the
majority of the Board of Directors of the Company shall, in good faith, so
determine.
SECTION 1.12 - PLAN
"Plan" shall mean the 1997 Stock Purchase and Option Plan for Key
Employees of Xxxxxxx'x Food Markets, Inc. and Subsidiaries.
SECTION 1.13 - PRONOUNS
The masculine pronoun shall include the feminine and neuter, and the
singular the plural, where the context so indicates.
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SECTION 1.14 - PURCHASE DATE
"Purchase Date" shall mean the date hereof.
SECTION 1.15 - RETIREMENT
"Retirement" shall mean retirement (i) at age 65 or over (or such
other age as may be approved by the Board of Directors of the Company) after
having been employed by the Company or a Subsidiary for at least three years or
(ii) at age 55 or over (or such other age as may be approved by the Board of
Directors of the Company) after having been employed by the Company or a
Subsidiary for at least 10 years.
SECTION 1.16 - SECRETARY
"Secretary" shall mean the Secretary of the Company.
SECTION 1.17 - STOCKHOLDER'S AGREEMENT
"Stockholder's Agreement" shall mean that certain Stockholder's
Agreement dated as of February 3, 1998 between the Optionee and the Company.
SECTION 1.18 - SUBSIDIARY
"Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Company if each of the corporations, or group of
commonly controlled corporations, other than the last corporation in the
unbroken chain then owns stock possessing 50% or more of the total combined
voting power of all classes of stock in one of the other corporations in such
chain.
SECTION 1.19 - TIME OPTION
"Time Option" shall mean an Option with respect to which the
commencement of exercisability is governed by Section 3.1(a) hereof.
SECTION 1.20 - TRIGGER DATE
"Trigger Date" shall mean June 29, 1997.
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ARTICLE II
GRANT OF OPTIONS
SECTION 2.1 - GRANT OF OPTIONS
For good and valuable consideration, on and as of the date hereof the
Company irrevocably grants to the Optionee a Time Option and/or a Performance
Option to purchase any part or all of an aggregate of the number of shares set
forth with respect to each such Option on the signature page hereof of its
Common Stock upon the terms and conditions set forth in this Agreement.
SECTION 2.2 - EXERCISE PRICE
Subject to Section 2.4, the exercise price of the shares of stock
covered by the Options shall be $12.11 per share without commission or other
charge.
SECTION 2.3 - CONSIDERATION TO THE COMPANY
In consideration of the granting of these Options by the Company, the
Optionee agrees to render faithful and efficient services to the Company or a
Subsidiary or Affiliate, with such duties and responsibilities as the Company
shall from time to time prescribe. Nothing in this Agreement or in the Plan
shall confer upon the Optionee any right to continue in the employ of the
Company or any Subsidiary or Affiliate or shall interfere with or restrict in
any way the rights of the Company and its Subsidiaries or Affiliates, which are
hereby expressly reserved, to terminate the employment of the Optionee at any
time for any reason whatsoever, with or without cause.
SECTION 2.4 - ADJUSTMENTS IN OPTIONS
Subject to Section 9 of the Plan, in the event that the outstanding
shares of the stock subject to an Option are, from time to time, changed into
or exchanged for a different number or kind of shares of the Company or other
securities of the Company by reason of a merger, consolidation,
recapitalization, reclassification, stock split, stock dividend, combination
of shares, or otherwise, the Committee shall make an appropriate and
equitable adjustment in the number and kind of shares or other
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consideration as to which such Option, or portions thereof then unexercised,
shall be exercisable. Any such adjustment made by the Committee shall be
final and binding upon the Optionee, the Company and all other interested
persons.
ARTICLE III
PERIOD OF EXERCISABILITY
SECTION 3.1 - COMMENCEMENT OF EXERCISABILITY
(a) Time Options shall become exercisable as follows:
Percentage of Time Option
Date Time Option Shares Granted As to Which
Becomes Exercisable Time Option Is Exercisable
-------------------- --------------------------
After the first anniversary
of the Trigger Date 20%
After the second anniversary
of the Trigger Date 40%
After the third anniversary
of the Trigger Date 60%
After the fourth anniversary
of the Trigger Date 80%
After the fifth anniversary
of the Trigger Date 100%
Notwithstanding the foregoing, the Time Option shall become
immediately exercisable as to 100% of the shares of Common Stock subject to
such Option immediately prior to a Change of Control (but only to the extent
such Option has not otherwise terminated or become exercisable). A "Change
of Control" means (i) a sale of all or substantially all of the assets of the
Company to a Person who is not an Affiliate of Kohlberg Kravis Xxxxxxx & Co.,
L.P. ("KKR"), (ii) a sale by KKR or any of its Affiliates resulting in more
than 50% of the voting stock of the
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Company (on a fully diluted basis, including, without limitation, after
giving effect to the exercise of the option to purchase 3,606,881 shares of
Common Stock granted to RFM Acquisition LLC by the Company) being held by a
Person or Group that does not include KKR or any of its Affiliates or the
Management Group or (iii) a merger or consolidation of the Company into
another Person which is not an Affiliate of KKR. "Person" means an
individual, partnership, corporation, business trust, joint stock company,
trust, unincorporated association, joint venture, governmental authority or
other entity of whatever nature. "Group" means two or more Persons acting
together as a partnership, limited partnership, syndicate or other group for
the purpose of acquiring, holding or disposing of securities of the Company.
(b) The Performance Option shall become exercisable with respect to
20% of the shares of Common Stock subject to such Option on each Vesting Date
following a Determination Date that the Company's Cumulative EBITDA equals or
exceeds the Cumulative EBITDA Target as of such Determination Date and the
actual EBITDA for that year equals or exceeds the EBITDA Target for that year.
If the Company's EBITDA for a Plan Year is less than 100% of the EBITDA Target
for such Plan Year (a "Missed Year"), no such Performance Option shall become
exercisable with respect to any additional shares of Common Stock on the Vesting
Date for such Plan Year. If, for any Plan Year subsequent to a Missed Year,
EBITDA exceeds the EBITDA Target AND Cumulative EBITDA exceeds the Cumulative
EBITDA Targets, then any prior percentage of Performance Options in respect of
prior Missed Years shall become exercisable (but only to the extent such Option
has not otherwise terminated or become exercisable).
Notwithstanding the foregoing, the Performance Option shall become
exercisable as to 100% of the shares of Common Stock subject to such Option
after seven years and 11 months after the Trigger Date (but only to the extent
such Option has not otherwise terminated or become exercisable).
(c) For purposes of Section 3.1(b):
(i) "Cumulative EBITDA" means with respect to any Performance
Option, the sum of the EBITDA for the Company and its consolidated
subsidiaries during the period commencing on June 29, 1997 and ending on
the last day of the Plan Year preceding the Determination Date.
(ii) "Cumulative EBITDA Targets" means with respect to
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any Performance Option, the sum of the EBITDA Targets for the period
commencing on June 29, 1997 and ending on the last day of the Plan Year
preceding the Determination Date.
(iii) "Determination Date" with respect to each Plan Year means the
September 30 following such Plan Year.
(iv) "EBITDA" shall mean, with respect to the Company and its
consolidated subsidiaries, net income before net interest expense, income
taxes, depreciation and amortization, writedown of property and securities,
extraordinary loss on extinguishment of debt, loss on disposal of
discontinued operations and loss from operation of discontinued operations.
(v) "EBITDA Target" shall have the meaning ascribed to
such term in Schedule I hereto for Plan Years 1998 through 2002 and such
other targets as are established by the Committee with respect to
subsequent Plan Years; PROVIDED, that to the extent that the Company or any
of its subsidiaries disposes or acquires assets out of the ordinary course
of business the Committee will decrease or increase, as the case may be,
the EBITDA Target for such dispositions
or acquisitions.
(vi) "Plan Year" means (i) the period from June 29, 1997 to June 28,
1998 with respect to Plan Year 1998 and (ii) thereafter, the period
commencing on the day immediately succeeding the close of the prior Plan
Year until the Saturday closest to each June 30.
(vi) "Vesting Date" means three calendar days after the relevant
Determination Date.
(d) Notwithstanding the foregoing, no Option shall become exercisable
as to any additional shares of Common Stock following the termination of
employment of the Optionee for any reason other than a termination of employment
because of death, Permanent Disability or Retirement of the Optionee (if such
Optionee has been employed by the Company or any subsidiary of the Company for
at least three years after the Purchase Date) and any Option (other than an as
provided in the next succeeding sentence) which is non-exercisable as of the
Optionee's termination of employment shall be immediately cancelled. In the
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event of a termination of employment because of such death, Permanent
Disability or Retirement, the Time Options (but not the Performance
Options) shall immediately become exercisable as to all shares of Common
Stock subject thereto.
(e) In the event the Company elects to change its fiscal year, the
definitions of EBITDA Target and Plan Year shall be amended by the Committee in
good faith and in a manner consistent with such definitions included in this
Agreement on the date hereof.
SECTION 3.2 - EXPIRATION OF OPTIONS
Except as otherwise provided in the Stockholder's Agreement, the
Options may not be exercised to any extent by Optionee after the first to occur
of the following events:
(a) The tenth anniversary of the Grant Date; or
(b) The first anniversary of the date of the Optionee's termination
of employment by reason of death, Permanent Disability or Retirement; or
(c) The first business day which is fifteen calendar days after the
earlier of (i) 75 days after termination of employment of the Optionee for
any reason other than for Cause, death, Permanent Disability or Retirement
or (ii) the delivery of notice by the Company that it does not intend to
exercise its call right under Section 6 of the Stockholder's Agreement;
PROVIDED, HOWEVER, that in any event the Options shall remain exercisable
under this subsection 3.2(c) until at least 45 days after termination of
employment of the Optionee for any reason other than for death, Permanent
Disability or Retirement; or
(d) The date of an Optionee's termination of employment by the
Company for Cause; or
(e) If the Committee so determines pursuant to Section 9 of the Plan,
the effective date of either the merger or consolidation of the Company
into another Person, or the exchange or acquisition by another Person of
all or substantially all of the Company's assets or 80% or more of its then
outstanding voting stock, or the recapitalization,
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reclassification, liquidation or dissolution of the Company. At least
ten (10) days prior to the effective date of such merger, consolidation,
exchange, acquisition, recapitalization, reclassification, liquidation
or dissolution, the Committee shall give the Optionee notice of such
event if the Option has then neither been fully exercised nor become
unexercisable under this Section 3.2.
ARTICLE IV
EXERCISE OF OPTION
SECTION 4.1 - PERSON ELIGIBLE TO EXERCISE
Except as otherwise provided in the Stockholder's Agreement, during
the lifetime of the Optionee, only he may exercise an Option or any portion
thereof. After the death of the Optionee, any exercisable portion of an Option
may, prior to the time when an Option becomes unexercisable under Section 3.2,
be exercised by his personal representative or by any person empowered to do so
under the Optionee's will or under the then applicable laws of descent and
distribution.
SECTION 4.2 - PARTIAL EXERCISE
Any exercisable portion of an Option or the entire Option, if then
wholly exercisable, may be exercised in whole or in part at any time prior to
the time when the Option or portion thereof becomes unexercisable under Section
3.2; provided, however, that any partial exercise shall be for whole shares of
Common Stock only.
SECTION 4.3 - MANNER OF EXERCISE
An Option, or any exercisable portion thereof, may be exercised solely
by delivering to the Secretary or his office all of the following prior to the
time when the Option or such portion becomes unexercisable under Section 3.2:
(a) Notice in writing signed by the Optionee or the other person then
entitled to exercise the Option or portion thereof, stating that the Option
or portion thereof is thereby exercised, such notice complying with all
applicable
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rules established by the Committee;
(b) Full payment (in cash, by check or by a combination thereof) for
the shares with respect to which such Option or portion thereof is
exercised;
(c) A bona fide written representation and agreement, in a form
satisfactory to the Committee, signed by the Optionee or other person then
entitled to exercise such Option or portion thereof, stating that the
shares of stock are being acquired for his own account, for investment and
without any present intention of distributing or reselling said shares or
any of them except as may be permitted under the Securities Act of 1933, as
amended (the "Act"), and then applicable rules and regulations thereunder,
and that the Optionee or other person then entitled to exercise such Option
or portion thereof will indemnify the Company against and hold it free and
harmless from any loss, damage, expense or liability resulting to the
Company if any sale or distribution of the shares by such person is
contrary to the representation and agreement referred to above; provided,
however, that the Committee may, in its absolute discretion, take whatever
additional actions it deems appropriate to ensure the observance and
performance of such representation and agreement and to effect compliance
with the Act and any other federal or state securities laws or regulations;
(d) Full payment to the Company of all amounts which, under federal,
state or local law, it is required to withhold upon exercise of the Option;
and
(e) In the event the Option or portion thereof shall be exercised
pursuant to Section 4.1 by any person or persons other than the Optionee,
appropriate proof of the right of such person or persons to exercise the
option.
Without limiting the generality of the foregoing, the Committee may require an
opinion of counsel acceptable to it to the effect that any subsequent transfer
of shares acquired on exercise of an Option does not violate the Act, and may
issue stop-transfer orders covering such shares. Share certificates evidencing
stock issued on exercise of this Option shall bear an appropriate legend
referring to the provisions of subsection (c) above and the agreements herein.
The written representation and agreement referred to in subsection (c) above
shall, however, not be
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required if the shares to be issued pursuant to such exercise have been
registered under the Act, and such registration is then effective in
respect of such shares.
SECTION 4.4 - CONDITIONS TO ISSUANCE OF STOCK CERTIFICATES
The shares of stock deliverable upon the exercise of an Option, or any
portion thereof, may be either previously authorized but unissued shares or
issued shares which have then been reacquired by the Company. Such shares shall
be fully paid and nonassessable. The Company shall not be required to issue or
deliver any certificate or certificates for shares of stock purchased upon the
exercise of an Option or portion thereof prior to fulfillment of all of the
following conditions:
(a) The obtaining of approval or other clearance from any state or
federal governmental agency which the Committee shall, in its absolute
discretion, determine to be necessary or advisable; and
(b) The lapse of such reasonable period of time following the
exercise of the Option as the Committee may from time to time establish for
reasons of administrative convenience.
SECTION 4.5 - RIGHTS AS STOCKHOLDER
The holder of an Option shall not be, nor have any of the rights or
privileges of, a stockholder of the Company in respect of any shares purchasable
upon the exercise of the Option or any portion thereof unless and until
certificates representing such shares shall have been issued by the Company to
such holder.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 - ADMINISTRATION
The Committee shall have the power to interpret the Plan and this
Agreement and to adopt such rules for the administration, interpretation and
application of the Plan as are consistent therewith and to interpret or revoke
any such rules.
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All actions taken and all interpretations and determinations made by the
Committee shall be final and binding upon the Optionee, the Company and
all other interested persons. No member of the Committee shall be
personally liable for any action, determination or interpretation made
in good faith with respect to the Plan or the Options. In its absolute
discretion, the Board of Directors may at any time and from time to time
exercise any and all rights and duties of the Committee under the Plan
and this Agreement.
SECTION 5.2 - OPTIONS NOT TRANSFERABLE
Except as provided in the Stockholder's Agreement, neither the Options
nor any interest or right therein or part thereof shall be liable for the debts,
contracts or engagements of the Optionee or his successors in interest or shall
be subject to disposition by transfer, alienation, anticipation, pledge,
encumbrance, assignment or any other means whether such disposition be voluntary
or involuntary or by operation of law by judgment, levy, attachment, garnishment
or any other legal or equitable proceedings (including bankruptcy), and any
attempted disposition thereof shall be null and void and of no effect; provided,
however, that this Section 5.2 shall not prevent transfers by will or by the
applicable laws of descent and distribution.
SECTION 5.3 - SHARES TO BE RESERVED
The Company shall at all times during the term of the Options reserve
and keep available such number of shares of stock as will be sufficient to
satisfy the requirements of this Agreement.
SECTION 5.4 - NOTICES
Any notice to be given under the terms of this Agreement to the
Company shall be addressed to the Company in care of its Secretary, and any
notice to be given to the Optionee shall be addressed to him at the address
given beneath his signature hereto. By a notice given pursuant to this Section
5.4, either party may hereafter designate a different address for notices to be
given to him. Any notice which is required to be given to the Optionee shall,
if the Optionee is then deceased, be given to the Optionee's personal
representative if such
14
representative has previously informed the Company of his status and
address by written notice under this Section 5.4. Any notice shall have
been deemed duly given when enclosed in a properly sealed envelope or
wrapper addressed as aforesaid, deposited (with postage prepaid) in a
post office or branch post office regularly maintained by the United
States Postal Service.
SECTION 5.5 - TITLES
Titles are provided herein for convenience only and are not to serve
as a basis for interpretation or construction of this Agreement.
SECTION 5.6 - APPLICABILITY
OF PLAN AND STOCKHOLDER'S AGREEMENT
The Options and the shares of Common Stock issued to the Optionee upon
exercise of the Options shall be subject to all of the terms and provisions of
the Plan and the Stockholder's Agreement, to the extent applicable to the
Options and such shares. In the event of any conflict between this Agreement
and the Plan, the terms of the Plan shall control. In the event of any conflict
between this Agreement or the Plan and the Stockholder's Agreement, the terms of
the Stockholder's Agreement shall control.
SECTION 5.7 - AMENDMENT
This Agreement may be amended only by a writing executed by the
parties hereto which specifically states that it is amending this Agreement.
SECTION 5.8 - GOVERNING LAW
The laws of the State of Texas (or if the Company reincorporates in
another state, the law of that state) shall govern the interpretation, validity
and performance of the terms of this Agreement regardless of the law that might
be applied under principles of conflicts of laws.
SECTION 5.9 - JURISDICTION
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Any suit, action or proceeding against the Optionee with
respect to this Agreement, or any judgment entered by any court in
respect of any thereof, may be brought in any court of competent
jurisdiction in the State of Texas (or if the Company reincorporates, in
that state) or New York, as the Company may elect in its sole
discretion, and the Optionee hereby submits to the non-exclusive
jurisdiction of such courts for the purpose of any such suit, action,
proceeding or judgment. The Optionee hereby irrevocably waives any
objections which he may now or hereafter have to the laying of the venue
of any suit, action or proceeding arising out of or relating to this
Agreement brought in any court of competent jurisdiction in the State of
Texas (or if the Company reincorporates, in that state) or New York, and
hereby further irrevocably waives any claim that any such suit, action
or proceeding brought in any such court has been brought in any
inconvenient forum. No suit, action or proceeding against the Company
with respect to this Agreement may be brought in any court, domestic or
foreign, or before any similar domestic or foreign authority other than
in a court of competent jurisdiction in the State of Texas (or if the
Company reincorporates, in that state) or New York, and the Optionee
hereby irrevocably waives any right which he may otherwise have had to
bring such an action in any other court, domestic or foreign, or before
any similar domestic or foreign authority. The Company hereby submits
to the jurisdiction of such courts for the purpose of any such suit,
action or proceeding.
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IN WITNESS WHEREOF, this Agreement has been executed and
delivered by the parties hereto.
XXXXXXX'X FOOD MARKETS, INC.
By /s/ R. Xxxxxxx Xxxxxxx, Xx.
----------------------------
Its Chief Executive Officer
/s/ A. Xxxxxx Xxxxxxxxxxx Aggregate number of shares
--------------------------- of Common Stock for which
Optionee the Time Option granted
hereunder is exercisable (50% of
total number of shares):
4,129
Aggregate number of shares
0000 Xxxxxxxxxx of Common Stock for which
--------------------------- the Performance Option granted
hereunder is exercisable (50% of
Xxxxx, XX 00000 total number of shares):
--------------------------- 4,129
Address
Optionee's Taxpayer
Identification Number:
--------------------------
Schedule I
Plan Year EBITDA Target
--------- -------------
1998 $101.5 million
1999 $118.9 million
2000 $181.3 million
2001 $207.6 million
2002 $221.4 million
