Exhibit 10.38
BIG V HOLDING CORP.
1990 TIME ACCELERATED RESTRICTED STOCK OPTION PLAN
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NON-QUALIFIED TIME ACCELERATED
RESTRICTED STOCK OPTION AGREEMENT
with
XXXXXXX XXXXXXX
BIG V HOLDING CORP.
STOCK OPTION AGREEMENT
UNDER 1990 TIME ACCELERATED RESTRICTED STOCK OPTION PLAN
NON-QUALIFIED TIME ACCELERATED RESTRICTED STOCK OPTION
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AGREEMENT entered into this 21st day of December, 1997 by and between Big V
Holding Corp., a Delaware corporation (the "Company"), and the undersigned
employee (the "Employee") of the Company (or one of its subsidiaries) (the
Company and its subsidiaries herein together referred to as the "Company").
1. The Company desires to grant the Employee a non-qualified stock option
under the Company's 1990 Time Accelerated Restricted Stock Option Plan (the
"Plan") to acquire shares of the Company's Common Stock, par value $.01 per
share (the "Common Stock").
2. Section 6 of the Plan provides that each option is to be evidenced by an
option agreement, setting forth the terms and conditions of the option.
ACCORDINGLY, in consideration of the promises and of the mutual covenants
and agreements contained herein, the Company and the Employee hereby agree as
follows:
1. Grant of Option. The Company hereby irrevocably grants to the Employee
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a non-qualified stock option (the "Option") to purchase all or any part of an
aggregate of 2,600 shares of Common Stock (the "Shares") on the terms and
conditions hereinafter set forth. This option shall not be treated as an
incentive stock option under Section 422 of the Internal Revenue Code of 1986,
as amended (the "Code").
2. Purchase Price. The purchase price ("Purchase Price") for the Shares
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covered by the Option shall be $35.00 per Share, which Purchase Price is not
less than the fair market value of the Shares on the date hereof.
3. Time of Exercise of Option; Exercisability. Except as provided below,
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the Option shall not be exercisable prior to nine years and six months from the
date of grant of the Option at which time the Option shall become exercisable in
full. The Option shall become exercisable earlier, however, with respect to the
number of Shares and upon the attainment of certain performance goals on or
prior to the end of certain performance periods, all as shown on Schedule I
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attached hereto and incorporated herein.
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4. Term of Options; Exercisability.
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(a) Term.
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(1) Each Option shall expire ten (10) years from the date of the
granting thereof, but shall be subject to earlier termination as provided in
subsections (2) and (3) below.
(2) Except as provided in paragraph (3) below, if the Employee
ceases to be an employed by the Company, at any time, for any reason or no
reason, in either such case, the option granted to the Employee shall terminate,
with respect to any Shares subject to options exercisable on the date of such
termination, on the fifth day following such termination and, with respect to
any Shares subject to options not exercisable on the date of such termination,
on the date of such termination.
(3) In the event of the termination of the Employee's employment
with the Company or one of its subsidiaries due to the death or disability of
the Employee, the option granted to the Employee shall terminate, with respect
to any Shares subject to options exercisable on the date of such termination, on
the 365th day following such termination and, with respect to any Shares subject
to options not exercisable on the date of such termination, on the date of such
termination.
(b) Exercisability. If the Employee ceases to be an employee of the
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Company, at any time, for any reason or for no reason, the Option granted to the
Employee hereunder shall be exercisable only to the extent that the right to
purchase Shares under such Option has accrued and is in effect on the date such
Employee ceases to be an employee of the Company or one of its subsidiaries.
5. Manner of Exercise of Option.
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(a) To the extent that the right to exercise the Option has accrued and
is in effect, the Option may be exercised in full or in part by giving written
notice to the Company stating the number of Shares exercised and accompanied by
payment in full for such Shares. Payment may be either wholly in cash or by
check payable to the Company. Upon such exercise, delivery of a certificate for
paid-up, non-assessable Shares shall be made at the principal office of the
Company to the person exercising the Option, not more than thirty (30) days from
the date of receipt of the notice by the Company.
(b) The Company shall at all times during the term of the Option
reserve and keep available such number of Shares of its common stock as will be
sufficient to satisfy the requirements of the Option.
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(c) Notwithstanding the provision of Section 5(a) of this Agreement,
the Company may delay the issuance of Shares covered by the exercise of this
Option and the delivery of a certificate for such Shares until one of the
following conditions shall be satisfied:
(i) The Shares with respect to which such Option has been
exercised are at the time of the issue of such Shares effectively
registered or qualified under applicable federal and state securities
acts now in force or as hereafter amended; or
(ii) Counsel for the Company shall have given an opinion, which
opinion shall not be unreasonably conditioned or withheld, that such
Shares are exempt from registration and qualification under applicable
federal and state securities acts now in force or as hereafter amended.
6. Non-Transferability. The right of the Employee to exercise the Option
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shall not be assignable or transferable by the Employee otherwise than by will
or the laws of descent and distribution, and the Option may be exercised during
the lifetime of the Employee only by him or her. The Option shall be null and
void and without effect upon the bankruptcy of the Employee or upon any
attempted assignment or transfer, except as hereinabove provided, including
without limitation any purported assignment, whether voluntary or by operation
of law, pledge, hypothecation or other disposition contrary to the provisions
hereof, or levy of execution, attachment, trustee process or similar process,
whether legal or equitable, upon the Option.
7. Shares Subject to Restrictions; Representation Letter and Investment
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Legend.
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(a) Each of the Shares shall be subject to the restrictions on transfer
imposed on, the terms and conditions requiring the sale or transfer of, and the
rights and the options of the Company and certain stockholders of the Company to
purchase, those shares of Common Stock held by Management Investors under the
terms of the Amended and Restated Shareholders' Agreement Dated as of December
17, 1993 (the "Restrictions"). The Shares shall be subject to the Restrictions
and the Employee hereby agrees to be bound by and undertakes to comply with the
Restrictions, whether or not the Employee is a party to the Shareholders'
Agreement, in the same manner and to the same extent as a Management Investor,
and agrees and undertakes to execute and deliver any and all such additional
agreements, instruments and other documents deemed necessary by the Company to
effect the provisions of this subparagraph (a).
(b) In the event that for any reason the Shares to be issued upon
exercise of the Option shall not be effectively registered under the Securities
Act of 1933 (the "1933 Act"), upon any date on which the Option is exercised in
whole or in part, the person exercising the Option shall give a written
representation to the Company in the form attached hereto as Exhibit 1 and the
Company shall place an "investment legend", so-called, as described in Exhibit 1
hereto, upon any certificate for the Shares issued by reason of such exercise.
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(c) The Company shall be under no obligation to qualify Shares or to
cause a registration statement or a post-effective amendment to any registration
statement to be prepared for the purposes of covering the issue of Shares.
8. Adjustments on Changes in Capitalization. Adjustments or changes in
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capitalization and the like shall be made in accordance with Section 12 of the
Plan, as in effect on the date of this Agreement.
9. Recapitalizations, Reorganizations, Changes in Control and the Like.
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Adjustments and other matters relating to recapitalizations, reorganizations,
sale of the assets of the Company, changes in control and the like shall be made
and determined in accordance with Section 12 of the Plan, as in effect on the
date of this Agreement (including, but not limited to, the termination and
cancellation of options upon a sale of all or substantially all of the assets of
the Company or a change of control in the Company).
10. No Special Employment Rights. Nothing contained in the Plan or this
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Agreement shall be construed or deemed by any person under any circumstances to
bind the Company to continue the employment of the Employee for the period
within which this Option may be exercised. However, during the period of the
Employee's employment, the Employee shall render diligently and faithfully the
services which are assigned to the Employee from time to time by the Board of
Directors or by the executive officers of the Company and shall at no time take
any action which directly or indirectly would be inconsistent with the best
interests of the Company.
11. Rights as a Shareholder. The Employee shall have no rights as a
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shareholder with respect to any Shares which may be purchased by exercise of
this Option unless and until a certificate or certificates representing such
Shares are duly issued and delivered to the Employee and the Employee has
executed and delivered to the Company any and all agreements, instruments and
other documents required by the Company pursuant to Section 7(a) hereof. Except
as otherwise expressly provided in the Plan, no adjustment shall be made for
dividends or other rights for which the record date is prior to the date such
stock certificate is issued.
12. Withholding Taxes. Whenever Shares are to be issued upon exercise of
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this Option, the Company shall have the right to require the Employee to remit
to the Company an amount sufficient to satisfy all Federal, state and local
withholding tax requirements prior to the delivery of any certificate or
certificates for such Shares.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed and
its corporate seal to be hereto affixed by its officer thereunto duly
authorized, and the Employee has hereunto set his or her hand and seal, all as
of the day and year first above written.
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BIG V HOLDING CORP.
By: /s/ Xxxxx X. Xxxxxx, Xx.
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Name: Xxxxx X. Xxxxxx, Xx.
Title: Executive Vice President
EMPLOYEE
/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
Address:
000 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Social Security
No.: ###-##-####
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SCHEDULE I
Option Vesting Schedule
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(a) The Option will become exercisable with respect to all Shares
subject thereto (the "Performance Shares") in the manner provided below.
(b) If the Company's Cash Flow (as hereinafter defined) is greater than
the Target Cash Flow for the applicable Target Period, as specified in Schedule
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A below, then the Option shall become exercisable with respect to twenty-five
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percent (25%) of the Performance Shares. If the Company's Cash Flow is less
than the Target Cash Flow for the applicable Target Period but at least ninety
percent (90%) of the Target Cash Flow for the Target Period, then the Option
shall become exercisable with respect to two and one-half percent (2.5%) of the
Performance Shares for each one percent (1%) by which the Company's actual Cash
Flow exceeds ninety percent of the Target Cash Flow for the Target Period, up to
a maximum of twenty-five percent (25%) of the Performance Shares for any one
Target Period. An Option shall be so exercisable on or after the later of the
end of the applicable Target Period or the date that the Company's Cash Flow for
such Target Period is certified by the Chief Financial Officer of the Company.
For the purpose of this Agreement, Cash Flow shall mean the Company's
consolidated income without reduction for non-cash or deferred compensation
expense, interest (except as indicated below), income taxes, depreciation or
amortization but after deduction of: (i) all operating expenses (including up to
$250,000 in management fees payable to Xxxxxx X. Xxx Company and X.X.
Xxxxxxxxxxxxx & Co. pursuant to their respective Management Agreements with the
Company), and (ii) other reserves required in connection with the operation of
the Company's business in the ordinary course. The determination of Cash Flow
shall not take into account any income or expense attributable to LIFO reserves,
gains or losses on sales of assets or other extraordinary gains or losses or
non-cash rent expenses. Except as otherwise provided herein, Cash Flow shall be
determined in accordance with generally accepted accounting principles
consistently applied, all as reflected in the Company's most recently available
consolidated audited financial statements for the immediately preceding fiscal
year and as certified by the Chief Financial Officer of the Company.
(c) In addition to the vesting of the Options under paragraph (b) above,
upon the expiration of the four year period ended December 31, 1998, any of the
Options with respect to the Performance Shares which remain unexercisable (after
giving effect to paragraph (b) above) (the "Remaining Shares") may also become
exercisable as follows: (i) if the Company's cumulative Cash Flow for the four
year period ended December 31, 1998 (the "Cumulative Cash Flow") is equal to or
greater than $213 million, then the Option will become exercisable with respect
to all of the Remaining Shares; and (ii) if the Cumulative Cash Flow is greater
than $192 million but less than $213 million, then, the Option will become
exercisable with respect to a
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portion of the Remaining Shares equal to (x) four and three-quarters percent
(4.75%) of the Performance Shares for each additional $1,000,000 of Cash Flow in
excess of $192 million, less (y) the number of Performance Shares which have
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vested under paragraph (b) above, such that the Option will be exercisable in
full if the Cumulative Cash Flow is equal to $213 million. The Option will be
exercisable pursuant to this paragraph (c) on or after the later of the end of
the Total Target Period of the date that the Company's Cumulative Cash Flow is
certified by the Chief Financial Officer of the Company.
(d) The Target Cash Flow levels set forth on Schedule A shall be
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adjusted in the manner and to the extent reasonably determined by the Board of
Directors in good faith to take into account (i) material changes in the
Company's method of accounting or (ii) the sale of substantial assets by the
Company or the acquisition of ongoing businesses, whether by merger,
consolidation or otherwise. Any such adjustment shall be made in good faith
with the intent that, after taking into account the nature of the cause of the
adjustment, the measure of the Company's performance established by the Target
Cash Flow levels before and after the adjustment will be as nearly equivalent as
is reasonably possible.
SCHEDULE A
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Maximum Percentage
Target Target Cash Flows of Shares Eligible
Period (1,000's) for Early Vesting
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1/1/95 to 12/31/95 $ 43,000 25%
1/1/96 to 12/31/96 $ 50,000 25%
1/1/97 to 12/31/97 $ 57,000 25%
1/1/98 to 12/31/98 $ 63,000 25%
Total Target Cash Flow
for Total Target Period $213,000
(1/1/95 to 12/31/98)
(e) In the event of a Sale of the Company (as hereinafter defined),
then any as yet unvested Shares shall vest if and to the extent they would
otherwise vest hereunder based on the following formula: (i) the Cash Flow for
the Target Period in which the Sale takes place (the "Sale Target Period") shall
be annualized based on the Company's most recently available consolidated
audited financial statements for the portion of the Sale Target Period prior to
the Sale (or, if audited financial statements are not available, unaudited
financial statements prepared in accordance with generally accepted accounting
principles consistently applied subject to year end adjustments and the absence
of notes, as certified by the Chief Financial Officer of the Company) and after
taking into account seasonal adjustment as determined in good faith by the
Company's Board of Directors, and the Company will be deemed to have achieved
such annualized Cash Flow in the Sale Target Period and (ii) the Company will be
deemed to have
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achieved in any Target Periods occurring after the Sale Target
Period, the average of the percentages of the Target Cash Flows achieved in the
prior Target Periods (based on the annualized Cash Flow with respect to the Sale
Target Period). Any Shares that would have vested had the Company achieved such
deemed Cash Flows shall vest and become exercisable immediately prior to the
Sale of the Company. For the purposes hereof, a "Sale" of the Company shall
mean a sale of all or substantially all of the assets of the Company or the sale
or other transfer of fifty percent or more of the common stock of the Company
held by the Institutional Investors (as defined in the Shareholders' Agreement)
to an unaffiliated third party or parties.
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STOCK OPTION AGREEMENT
EXHIBIT 1
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Gentlemen:
In connection with the exercise by me as to 2,600 shares of common stock,
no par value per share, of BIG V HOLDING CORP. (the "Company") under the non-
qualified stock option dated December 21, 1997, granted to me under the 1990
Time Accelerated Restricted Stock Option Plan, I hereby acknowledge that I have
been informed as follows:
1. The shares of common stock of the Company to be issued to me pursuant
to the exercise of said option have not been registered under the Securities Act
of 1933, as amended (the "Act"), and accordingly, must be held indefinitely
unless such shares are subsequently registered under the Act, or an exemption
from such registration is available.
2. Routine sales of securities made in reliance upon Rule 144 under the
Act can be made only after the holding period and in limited amounts in
accordance with the terms and conditions provided by that Rule, and in any sale
to which that Rule is not applicable, registration or compliance with some other
exemption under the Act will be required.
3. The Company is under no obligation to me to register the shares or to
comply with any such exemptions under the Act.
4. The availability of Rule 144 is dependent upon adequate current public
information with respect to the Company being available and, at the time that I
may desire to make a sale pursuant to the Rule, the Company may neither wish nor
be able to comply with such requirement.
In consideration of the issuance of certificates for the shares to me, I
hereby represent and warrant that I am acquiring such shares for my own account
for investment, and that I will not sell, pledge or transfer such shares in the
absence of an effective registration statement covering the same, except as
permitted by the provisions of Rule 144, if applicable, or some other applicable
exemption under the Act. In view of this representation and warranty, I agree
that there may be affixed to the certificates for the shares to be issued to me,
and to all certificates issued hereafter representing such shares (until in the
opinion of counsel, which opinion must be reasonably satisfactory in form and
substance to counsel for the Company, it is no longer necessary or required) a
legend as follows:
"These securities have not been registered under the Securities Act of
1933 and may not be sold, transferred, offered for sale, pledged or
hypothecated
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in the absence of an effective registration statement as to the
securities under said Act or an opinion of counsel satisfactory to the
Company, both as to opinion and counsel, that such registration is not
required."
"These securities are subject to the terms and conditions, including
restrictions on transfer, of an Amended and Restated Stockholders
Agreement dated as of December 17, 1993, as amended from time to time,
a copy of which is on file with the Secretary of the Company."
I further agree that the Company may place a stop order with its Transfer
Agent, prohibiting the transfer of such shares, so long as the legend remains on
the certificates representing the shares.
Very truly yours,
/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
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