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EXHIBIT 10.27
STOCK OPTION AGREEMENT
(Five Year Term)
THIS STOCK OPTION AGREEMENT is made effective as of the 18th day of
January, 2001 between DISCOUNT AUTO PARTS, INC., a Florida corporation
("Discount") and XXXXXXX X. XXXXXXX (the "Optionee").
WITNESSETH
WHEREAS, the Optionee was engaged by Discount as an executive officer
until January 18, 2001 and, in connection with a termination of employment with
Discount entered into an Agreement and General Release with Discount dated as of
January 17, 2001 ("Agreement and General Release"); and
WHEREAS, pursuant to the terms of the Agreement and General Release
Discount agreed to grant to the Optionee the option herein provided for.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the parties hereto hereby agree as follows:
1. Grant. Discount hereby grants to the Optionee an option (the
"Option") to purchase 50,000 shares of Discount common stock, par value $.01 per
share ("Common Stock") at an exercise price of $7.00 per share, both as adjusted
pursuant to Section 9 hereof.
2. Exercise. The Option may be exercised at any time during the
period hereinafter permitted by presentation at the principal offices of
Discount in Lakeland, Florida of (a) written notice to Discount advising
Discount of the election of the Optionee to purchase the shares of Common Stock
covered by this Option and (b) payment of the aggregate option price therefor.
At no time may the Option be exercised for fewer than one hundred (100) shares
of Common Stock, unless the number of shares to be acquired by exercise of the
Option is the total number then purchasable under the Option.
3. Period of Exercise. The Option is exercisable in whole or from
time to time in part during the period from January 18, 2001 through January 18,
2006.
4. Vesting. The Optionee's rights under the Option shall be
vested 100% on the date of this Agreement.
5. Requirements of Law. Discount shall not be required to sell or
issue any shares under the Option if the issuance of such shares shall
constitute a violation of any provisions of any law or regulation of any
governmental authority. Specifically, in connection with the Securities Act of
1933 (the "Act"), upon exercise of the Option, unless a registration statement
under the Act is in effect with respect to the shares of Common Stock covered by
the Option, Discount shall not be required to issue such shares unless Discount
has received evidence reasonably satisfactory to the effect that the Optionee is
acquiring such shares for investment and not with a view to the distribution
thereof, and unless the certificate issued representing the shares of Common
Stock bears the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED, OR THE
SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED FOR SALE, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT OR EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF
1933 AS AMENDED AND APPLICABLE STATE SECURITIES LAWS."
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Any reasonable determination in this connection by Discount shall be final,
binding and conclusive.
At such time as a registration statement under the Act is in effect
with respect to the shares of Common Stock represented by certificates bearing
the above legend or at such time as, in the opinion of counsel for Discount,
such legend is no longer required solely for compliance with applicable
securities laws, then the holders of such certificates shall be entitled to
exchange such certificates for certificates representing a like number of shares
but without such legend. Discount may, but shall in no event be obligated to,
register any securities covered hereby pursuant to the Act. Discount shall not
be obligated to take any other affirmative action in order to cause the exercise
of the Option or the issuance of shares pursuant thereto to comply with any law
or regulation of any governmental authority.
6. Method of Payment. Payment shall be made:
(a) in United States dollars by certified check, or bank
draft or
(b) by tendering to Discount Common Stock shares owned by
the person exercising the Option and having a fair market value equal
to the cash exercise price applicable to such Option, such fair market
value to be the closing price, on the date in question (or, if no
shares are traded on such day, on the next preceding day on which
shares were traded), of the Common Stock as reported on the Composite
Tape, or if not reported thereon, then such price as reported in the
trading reports of the principal securities exchange in the United
States on which such stock is listed, or if such stock is not listed on
a securities exchange in the United States, the mean between the dealer
closing "bid" and "ask" prices on the over-the-counter market as
reported by the National Association of Security Dealers Automated
Quotation System (NASDAQ), or NASDAQ's successor, or if not reported on
NASDAQ, the fair market value of such stock as determined by the Board
of Directors of Discount in good faith and based on all relevant
factors, or
(c) by a combination of United States dollars and Common
Stock shares as aforesaid.
To the extent permitted by applicable law and regulations, Discount may
from time to time, in its discretion, approve an arrangement with a brokerage
firm under which such brokerage firm, on behalf of the Optionee, would pay to
Discount the full purchase price of the shares being purchased together with an
amount equal to any taxes which Discount is required to withhold in connection
with the exercise of the option and Discount, pursuant to an irrevocable notice
from the Optionee, would deliver the shares being purchased to such brokerage
firm.
7. Transferability of Option. The Option shall not be
transferable by the Optionee otherwise than by will or the laws of descent and
distribution, and shall be exercisable during his lifetime only by him.
8. No Rights as Stockholder. The Optionee shall have no rights as
a stockholder with respect to shares covered by the Option until the date of
issuance of a stock certificate for such shares; no adjustment for dividends, or
otherwise, except as provided in Section 9, shall be made if the record date
therefor is prior to the date of exercise of such option.
9. Stock Adjustments.
(a) In the event of any increase or decrease in the
number of issued shares of Common Stock resulting from a stock split or
other division or consolidation of shares or the payment of a stock
dividend (but only on the Common Stock) or any other increase or
decrease in the number of such shares effected without any receipt of
consideration by Discount, then, in any such event, the number of
shares of Common Stock covered by the Option, and the purchase price
per share of Common Stock covered by the Option shall be
proportionately and appropriately adjusted for any such increase or
decrease.
(b) Subject to any required action by the stockholders,
if any change occurs in the shares of Common Stock by reason of any
Recapitalization, reorganization, merger, consolidation, split-up,
combination or exchange of shares, or of any similar change affecting
the shares of Common Stock, then, in any such event,
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the number and type of shares covered by the Option, and the purchase
price per share of Common Stock covered by the Option, shall be
proportionately and appropriately adjusted for any such change. A
dissolution or liquidation of Discount shall cause each outstanding
Option to terminate.
(c) In the event of a change in the Common Stock as
presently constituted that is limited to a change of all of its
authorized shares with par value into the same number of shares with a
different par value or without par value, the shares resulting from any
change shall be deemed to be shares of Common Stock within the meaning
of this Agreement.
(d) To the extent that the foregoing adjustments relate
to stock or securities of Discount, such adjustments shall be made by,
and in the discretion of, the Board of Directors of Discount, whose
determination in that respect shall be final, binding and conclusive.
(e) Except as herein above expressly provided in this
Section 9, the Optionee shall have no rights by reason of any division
or consolidation of shares of stock of any class or the payment of any
stock dividend or any other increase or decrease in the number of
shares of stock of any class or by reason of any dissolution,
liquidation, merger or consolidation, or spin-off of assets or stock of
another corporation; and any issuance by Discount of shares of stock of
any class, securities convertible into shares of stock of any class, or
warrants or options for shares of stock of any class shall not affect,
and no adjustment by reason thereof shall be made with respect to, the
number or price of shares of Common Stock subject to the Option.
(f) The grant of this Option shall not affect in any way
the right or power of Discount to make adjustments, reclassifications,
reorganizations or changes of its capital or business structure or to
merge or to consolidate, or to dissolve, to liquidate, to sell, or to
transfer all or any part of its business or assets.
10. Withholding. It shall be a condition to the obligation of
Discount to issue Common Stock shares upon exercise of an Option, that the
Optionee pay to Discount, upon its demand, such amount as may be requested by
Discount for the purpose of satisfying any liability to withhold federal, state,
local or foreign income or other taxes. If the amount requested is not paid,
Discount may refuse to issue Common Stock shares.
11. Governing Law. This Agreement shall be governed by the laws of
the State of Florida.
12. Entire Agreement. This Agreement contains the entire agreement
of Discount and the Optionee with respect to the subject matter hereof, and
supersedes all prior agreements or understandings, written, oral or otherwise,
with respect to the subject matter hereof.
13. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
14. Waiver. Failure by Discount at any time to require performance
of any provision of this Agreement shall not affect its right to require full
performance thereof at any time thereafter. No waiver or delay in enforcing the
terms of this Agreement by Discount shall be construed as a waiver of any
subsequent breach or default of the same or similar nature or of any other
nature.
15. Binding Effect. This Agreement shall be binding upon the
parties, their heirs, legal representatives, successors, assigns, and
transferees.
16. Gender; Word Use. Throughout this Agreement, except where the
context otherwise requires, the masculine gender shall be deemed to include the
feminine, and the singular shall be deemed to include the plural, and vice
versa.
17. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
ATTEST: DISCOUNT AUTO PARTS, INC.
/s/ C. Xxxxxxx Xxxxx By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Chief Executive Officer
and Chairman
/s/ Xxxxxx XxxXxxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
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/s/ Xxxxx Xxx Xxxxxxx X. Xxxxxxx
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