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EXHIBIT 10.9
AMENDED AND RESTATED
MANAGEMENT OPTION AGREEMENT
This Amended and Restated Management Option Agreement (this "Agreement")
is entered into as of the 28 day of January, 1997, between Intrepid Food
Holdings, Inc., a Delaware corporation (the "Company"), and W X. Xxxx (the
"Executive").
RECITALS
A. The Company and the Executive are parties to that certain
Management Option Agreement, dated as of April 15, 1996 (the "Original Option
Agreement").
B. The Company and the Executive deem it desirable to amend and
restate the Original Option Agreement upon the terms and subject to the
conditions set forth herein.
AGREEMENTS
In consideration of the recitals and the mutual covenants herein
contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
ARTICLE I
Definitions
In addition to the terms defined elsewhere in this Agreement, as used in
this Agreement:
"Approved Sale" means the sale of the Company in an arm's-length
transaction, whether by merger, consolidation, sale of all or substantially all
of its assets or a sale of all or substantially all of the capital stock of the
Company in one transaction or a series of transactions.
"Cause" has the meaning given to it in the Employment Agreement.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the Common Stock of the Company, par value $.001
per share.
"Date of Grant" means April 15, 1996.
"Disability" has the meaning given to it in the Employment Agreement.
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"Employment Agreement" means the Employment Agreement dated October 2,
1995 between the Company and the Executive, as amended from time to time in
accordance with its terms.
"Exercise Date" means any date on which all or any portion of the
Options are exercised pursuant to Section 2.2 hereof.
"Exercise Price Per Share" means, as of any Exercise Date, the amount
set forth on Schedule 1 next to the period during which such Exercise Date
occurs, subject to adjustment pursuant to Section 2.8.
"Good Reason" has the meaning given to it in the Employment Agreement.
"Option" means the option to purchase the Option Shares, subject in all
respects to the terms and conditions of this Agreement, the grant to the
Executive of which is made by this Agreement.
"Option Shares" means 333 shares of Common Stock, subject to adjustment
as set forth in Section 2.8.
"Option Termination Date" means the earliest of (a) the eighth
anniversary of the Date of Grant, (b) the date of the closing of an Approved
Sale, and (c) the liquidation, dissolution or winding up of the Company,
whether voluntary or involuntary.
"Person" means a natural person, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization or other entity or a governmental
entity or any department, agency or political subdivision thereof.
"Qualified Public Offering" means an underwritten public offering
pursuant to a registration statement declared effective by the Commission
pursuant to the Securities Act covering the offer and sale of Common Stock in
which all or a portion of the proceeds thereof are used to redeem in cash all
shares of preferred stock of the Company then outstanding.
"Securities Act" means the Securities Act of 1933, as amended.
"Stockholders Agreement" means the Stockholders Agreement dated as of
April 15, 1996 between the Company, the Executive and certain Persons, as such
agreement may be amended from time to time in accordance with its terms.
"Subsidiary" means, with respect to the Company, any Person of which
securities or other ownership interests representing more than 50% of the or
voting power are, at the time as of which any determination is being made,
owned or controlled by the Company or one or more Subsidiaries of the Company
or by the Company and one or more Subsidiaries of the Company.
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ARTICLE II
The Option Provisions
2.1 Grant of the Option. Subject to the terms herein set
forth, the Company hereby grants to the Executive the Option.
2.2 Procedures for Exercise. Subject in all respects to the
Option becoming exercisable pursuant to this Agreement, the Executive may
exercise the Option in whole or in part at any time prior to the Option
Termination Date or earlier termination pursuant to the terms of this Agreement
by delivering written notice to the Company substantially in the form attached
hereto as Exhibit A, together with cash or other immediately available funds in
an amount equal to the applicable Exercise Price Per Share multiplied by the
number of Option Shares with respect to which the Executive is exercising the
Option. As promptly as practicable after receiving the written notice and
payment, the Company will deliver to the Executive certificates for the Option
Shares with respect to which the Executive has exercised the Option, issued in
the name of the Executive. For all purposes, the Executive will be deemed to
have exercised such Option and to have purchased and become the holder of the
Option Shares as of the date the Company receives written notice and payment
from the Executive as provided in this Section 2.2.
2.3 Vesting of the Option. The Option shall only become
exercisable as follows:
(a) In Accordance with Vesting Schedule. The Option
Shares shall vest and be exercisable on April 15, 1999.
(b) Qualified Public Offering and Approved Sale.
(i) If the Company consummates a Qualified
Public Offering at any time prior to April 15, 1999, the Option will become
vested and exercisable upon the consummation of such Qualified Public Offering.
(ii) If an Approved Sale occurs at any time prior
to April 15, 1999, the Option will become vested and exercisable immediately
prior to such Approved Sale. The Company acknowledges that Executive may
exercise the Option contemporaneous with the closing of the Approved Sale.
(c) Fractional Shares. Fractional shares will not be
issued upon the exercise of the Option but in any case where the Executive
would, except for the provisions of this Section 2.3(c), be entitled under the
terms of this Agreement to receive a fractional share upon the complete
exercise of the Option, the Company will, upon the exercise of the Option for
the largest number of whole shares then called for, pay a sum in cash equal to
the excess of the value of such fractional share (determined in such reasonable
manner as may be prescribed in good faith by the Board of Directors of the
Company) over the proportional part of the Exercise Price Per Share represented
by such fractional share.
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2.4 Employment Based Termination Events. If the Executive
ceases to be a full-time employee of the Company while the Option is
outstanding and unexercised, in whole or in part:
(a) if such termination is prior to April 15, 1999 and
is for a reason other than death, disability or termination by the Company (or
a Subsidiary) without cause, or if the Executive elects to terminate his
employment with the Company other than for Good Reason, the Option shall
terminate and cease to be exercisable upon the date of such termination; and
(b) if such termination is by reason of death,
disability or termination of Executive by the Company without cause, or if the
Executive elects to terminate his employment with the Company for Good Reason,
all of the Option Shares shall immediately vest and become exercisable on the
date of such death, disability or termination.
2.5 Non-Transferable. The Option shall not be transferable,
except by will or the laws of descent and distribution, and may be exercised
only by the Executive during his lifetime.
2.6 No Rights as a Stockholder. The Option does not confer
upon the Executive any right to vote or consent or to receive notice as a
stockholder of the Company, as such, in respect of any matters whatsoever, or
any other rights or liabilities as a stockholder, prior to the exercise of the
Option as hereinbefore provided.
2.7 No Rights to Employment or Other Relationship. Nothing
contained in this Agreement shall confer upon the Executive any right with
respect to employment by or any relationship with the Company or any Subsidiary
or interfere in any way with the right of the Company or any Subsidiary at any
time to terminate the employment of the Executive or terminate any other
relationship the Executive may have with the Company or any Subsidiary.
2.8 Antidilution Provisions. In the event of any stock
dividend, stock split, combination, or exchange of shares of Common Stock or
any recapitalization or change in capitalization affecting shares of Common
Stock, the number and kind of shares that are subject to the Option and the
Exercise Price Per Share may be proportionately and appropriately adjusted.
Any adjustments under this Section 2.8 will be made by the Board of Directors
of the Company, whose determinations as to what adjustments, if any, will be
made and the extent thereof will be final, binding and conclusive.
ARTICLE III
Representations and Warranties of the Company
3.1 Representations and Warranties. The Company hereby
represents and warrants to the Executive as follows:
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(a) Organization and Standing. The Company is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware.
(b) Corporate Power. The Company has the requisite
corporate power to own all the properties owned by it and to conduct its
business as presently being and as proposed to be conducted by it. The Company
has all requisite corporate power to enter into this Agreement, to issue and
sell the Option Shares and to carry out and perform its obligations under the
terms of this Agreement.
(c) Authorization. All corporate action on the part of
the Company, its directors and stockholders necessary for the authorization,
execution, delivery and performance by the Company of this Agreement, and the
consummation of the transactions contemplated hereby, has been taken.
(d) Enforceability. This Agreement constitutes a legal,
valid and binding obligation of the Company, enforceable against it in
accordance with its terms, subject to any applicable bankruptcy,
reorganization, insolvency, moratorium, or other laws or equitable principles
affecting the enforcement of creditors' rights generally.
(e) Validity of Stock. The Option Shares, when issued,
sold and delivered in accordance with the terms of this Agreement, will be duly
authorized, validly issued, fully paid and non-assessable.
ARTICLE IV
Representations and Warranties of the Executive
4.1 Representations and Warranties of the Executive. The
Executive hereby represents and warrants to the Company as follows:
(a) Investment Intent. The Executive will acquire the
Option Shares, to the extent that the Options become exercisable pursuant to
the terms hereof and the Executive exercises the Option in whole or in part,
solely for investment for the Executive's own account and not with a view to
the resale or distribution of all or any part thereof.
(b) Other Matters. The Executive understands that (i)
the Executive may purchase the Option Shares only to the extent that the Option
becomes exercisable pursuant to Section 2.3 hereof, (ii) it is possible that
the Option will not become exercisable for any of the Option Shares, and (iii)
none of the Option Shares have been registered under the Securities Act of
1933, as amended (the "Securities Act"), and the Executive may have to hold the
Option Shares, to the extent the Option is exercised for such Option Shares
hereunder in accordance with the terms hereof, for an indefinite period.
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ARTICLE V
Covenants of the Company
5.1 Authorized Shares. The Company covenants and agrees that
during the period within which the Option may be exercised, the Company will at
all times have authorized and in reserve a sufficient number of shares of its
Common Stock to provide for the exercise of the Option.
5.2 Closing of Transfer Books. The right to exercise the
Option will not be suspended during any period while the stock transfer books
of the Company for its Common Stock may be closed. The Company will not be
required, however, to deliver certificates of its Common Stock upon such
exercise while such books are duly closed for any purpose, but the Company may
postpone the delivery of the certificates for such Common Stock until the
opening of such books, and they will, in such case, be delivered forthwith upon
the opening thereof, or as soon as practicable thereafter.
5.3 Legends. Until (i) the securities represented by such
certificates are effectively registered under the Securities Act, or (ii) the
holder of such securities delivers to the Company a written opinion acceptable
to the Company from legal counsel to such holder to the effect that such legend
is no longer necessary under the Securities Act, the Company will cause each
certificate representing Option Shares or securities issued in exchange for or
replacement of or as a distribution with respect to Option Shares to be stamped
or imprinted with a legend in substantially the following form:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and thus
may not be transferred unless so registered or unless an
exemption from registration is available."
ARTICLE VI
Miscellaneous
6.1 Survival of Representations and Warranties. All
representations and warranties contained herein will survive the execution and
delivery of this Agreement and any investigation made at any time by or on
behalf of the Company or the Executive.
6.2 Successors and Assigns. Except as otherwise expressly
provided herein, all covenants and agreements contained in this Agreement by or
on behalf of any of the parties hereto will bind and inure to the benefit of
the respective successors and assigns of the parties hereto. whether so
expressed or not.
6.3 Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience of reference only and do not constitute
a part of this Agreement.
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6.4 Notices. Any notices desired, required or permitted to be
given hereunder will be delivered personally or mailed, certified mail, return
receipt requested, or delivered by overnight courier service, to the following
addresses, or such other address as any party hereto designates by written
notice to the Company, and will be deemed to have been given upon delivery, if
delivered personally, five business days after mailing, if mailed, or one
business day after delivery to the overnight courier service, if delivered by
overnight courier service:
If to the Executive, to:
Xxxxxxx X. Xxxx
000 Xxxxx Xxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
If to the Company, to:
Intrepid Food Holdings, Inc.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
6.5 Governing Law. The validity, meaning and effect of this
Agreement will be determined in accordance with the internal laws of the State
of Illinois applicable to contracts made and to be performed in that state.
6.6 Exhibits and Schedules. All exhibits and schedules hereto
are an integral part of this Agreement.
6.7 Final Agreement. This Agreement, together with the
Employment Agreement, the Stockholders Agreement, constitutes the final
agreement of the parties concerning the matters referred to herein, and
supersedes all prior agreements and understandings.
6.8 Execution in Counterparts. This Agreement may be executed
in two counterparts, each of which when so executed and delivered will be
deemed an original, and such counterparts together will constitute one
instrument.
Remainder of page intentionally left blank.
Signature page follows.]
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This Amended and Restated Management Option Agreement was
executed on the date first set forth above.
INTREPID FOOD HOLDINGS, INC.
By: /S/ Xxxxxxx X. Xxxx
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Its: President
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/S/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
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EXHIBIT A
TO: Intrepid Food Holdings, Inc.
The undersigned, pursuant to the terms and conditions of the Amended and
Restated Management Option Agreement dated as of ______________, 19__ by and
between Intrepid Food Holdings, Inc. and Xxxxxxx X. Xxxx (the "Management
Option Agreement"), hereby exercises the Option granted thereby to purchase the
following number of shares of Common Stock pursuant to such Option at the
applicable Exercise Price Per Share (as defined in the Management Option
Agreement) as of the date hereof and is hereby tendering full payment therefor
in accordance with the terms of the Management Option Agreement:
NUMBER OF SHARES TO
BE PURCHASED:
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EXERCISE PRICE
PER SHARE:
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TOTAL PAYMENT:
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Dated: XXXXXXX X. XXXX [OR PERMITTED TRANSFEREE]
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SCHEDULE 1
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EXERCISE DATE EXERCISE PRICE PER SHARE
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Date of Grant $100.00
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After Date of Grant, but on or prior to the first
anniversary of Date of Grant $185.00
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After the first anniversary of Date of Grant, but
on or prior to the second anniversary of Date of
Grant $290.00
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After the second anniversary of Date of Grant,
but on or prior to the third anniversary of Date
of Grant $418.00
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After the third anniversary of Date of Grant, but
on or prior to the fourth anniversary of Date of
Grant $574.00
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After the fourth anniversary of Date of Grant,
but on or prior to the fifth anniversary of Date
of Grant $762.00
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After the fifth anniversary of Date of Grant, but
on or prior to the sixth anniversary of Date of
Grand $989.00
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After the sixth anniversary of Date of Grant, but
on or prior to the seventh anniversary of Date of
Grant $1,262.00
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After the seventh anniversary of Date of Grant,
but on or prior to the eighth anniversary of Date
of Grant $1,588.00
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