AMERICOLD CORPORATION
KEY EMPLOYEE STOCK OPTION PLAN
NONSTATUTORY STOCK OPTION AGREEMENT
THIS AGREEMENT is effective as of the 24th day of April,
1996 between AMERICOLD CORPORATION (the "Company"), and J. XXX XXXX
(the "Optionee").
To attract and retain able, experienced and trained
people and to provide additional incentives to key employees, the
Board of Directors adopted and the shareholders of the Company
approved the Company's Key Employee Stock Option Plan (the "Plan").
Pursuant to the Plan, the Compensation Committee of the Board of
Directors (the "Committee") has approved the grant to the Optionee
of an option to purchase shares of the Company's Common Stock, $.01
par value (the "Common Stock"), in the amount indicated below.
This option is a nonstatutory stock option and is not an Incentive
Stock Option as defined in Section 422 of the Internal Revenue Code
of 1986, as amended (the "Code").
NOW, THEREFORE, in consideration of the mutual covenants
contained in this Agreement, the Company and the Optionee agree as
follows:
1. The Company grants to the Optionee, upon the terms
and conditions set forth below and in the Plan, the right and
option (the "Option") to purchase up to thirty thousand (30,000)
shares (the "Option Shares") of the Company's authorized, but
unissued or reacquired, Common Stock at a purchase price of $12.30
per share.
(a) Subject to reductions in the Option term as
provided in subsections (d) and (g) of this Section, the
Option shall continue in effect until and including April 23,
2006 (the "Expiration Date"), at which time the Option shall
automatically terminate. Except as provided in subsections
(d) and (g) of this Section, the Option may be exercised from
time to time over the term of the Option by the purchase of
Option Shares in the following amounts:
(i) During the first year following the grant of
the Option -- none;
(ii) On and after April 24, 1997 -- one-fifth of the
Option Shares;
(iii) On and after April 24, 1998 -- an additional
one-fifth of the Option Shares;
(iv) On and after April 24, 1999 -- an additional
one-fifth of the Option Shares;
(v) On and after April 24, 2000 --an additional
one-fifth of the Option Shares; and
(vi) On and after April 24, 2001 -- the remaining
one-fifth of the Option Shares;
provided, however, if the Optionee does not purchase in any
one year the full number of Option Shares to which the
Optionee is then entitled, the Optionee's rights shall be
cumulative, and the Optionee may purchase those Option Shares
in any subsequent year during the term of the Option.
(b) Except as provided in subsection (d) of this
Section, the Option may not be exercised unless the Optionee
is then an employee of or consultant to the Company or a
subsidiary (as defined in Section 424(f) of the Code) of the
Company ("Subsidiary") and has been an employee or consultant
continuously since the date the Option was granted. However,
a leave of absence under rules established by the Board of
Directors shall not be deemed an interruption of employment
for purposes of this Agreement.
(c) The Option shall not be transferable except by
will or by the laws of descent and distribution of the state
or country of the Optionee's domicile at the time of the
Optionee's death. Any such transfer of the Option or Option
Shares shall be subject to the terms and conditions of the
Stockholders' Agreement dated as of December 24, 1986, as
currently amended and as amended hereafter (the "Stockholders'
Agreement"), among the Company, Xxxxx Equity Partners, L.P.,
Xxxxx & Company, L.P., Xxxxx Investment Associates II, L.P.,
KIA III-Americold Inc., L.P., The Northwestern Mutual Life
Insurance Company, New York Life Insurance Company, New York
Life Insurance and Annuity Corporation and various other
shareholders of the Company. The Option shall be exercisable
during the Optionee's lifetime only by the Optionee or the
Optionee's guardian or legal representative.
(d) If the employment of the Optionee by the
Company or a Subsidiary terminates before the Expiration Date,
the following shall apply:
(i) If the employment of the Optionee terminates
for any reasons other than (1) for cause before April 24,
2001 (as described in Section 7 of the Employment
Agreement dated as of August 1, 1995 between the Company
and Optionee), (2) or a voluntary termination by the
Option prior to July 31, 1997 "without good reason," as
defined in such Agreement or (3) for the reasons set
forth in subsections (iii) and (iv) of this Section, the
then-unexercised portion of the Option may be exercised,
to the extent that the Optionee was entitled to do so on
the date of
termination, at any time prior to the earlier of (A) the
Expiration Date of the Option, or (B) the expiration of
three months after the date of termination.
(ii) If the employment of the Optionee terminates
for cause before April 24, 2001, (as described in Section
7 of the Employment Agreement dated August 1, 1995
between the Company and Optionee) or as a result of
voluntary termination by the Optionee prior to July 31,
1997 "without good reason," as defined in such Agreement,
the then-unexercised portion of the Option shall expire,
and Optionee shall have no further right or interest in
the Option.
(iii) If the employment of the Optionee is
terminated because of permanent and total disability (as
defined in the Plan), the then-unexercised portion of the
Option may be exercised, to the extent that the Optionee
was entitled to do so on the date of termination, at any
time prior to the earlier of (A) the Expiration Date of
the Option, or (B) the expiration of one year after the
date of termination.
(iv) If the employment is terminated because of
the Optionee's death, the then-unexercised portion of the
Option may be exercised, to the extent that the Optionee
was entitled to do so on the date of the Optionee's
death, at any time prior to the earlier of (A) the
Expiration Date of the Option, or (B) the expiration of
one year after the date of the Optionee's death.
However, in the event of the Optionee's death, the Option
may be exercised only as permitted under, and subject to
the terms and conditions of, the Stockholders' Agreement.
(e) Option Shares may be purchased only upon
receipt by the Company of written notice from the Optionee
specifying the number of Option Shares the Optionee desires to
purchase, accompanied by full payment in cash for the Option
Shares being purchased plus any required withholding tax. In
addition, the written notice shall contain a representation
that the Optionee intends to acquire the Option Shares for
investment and not for resale. Any required withholding tax
shall be paid in cash or, when applicable, through a payroll
deduction no later than the next payroll cycle. No Option
Shares shall be issued until full payment has been made. The
Optionee shall have none of the rights of a shareholder with
respect to any Option Shares until the Optionee becomes the
holder of record of such Option Shares.
(f) If the outstanding shares of Common Stock are
changed into or exchanged for a different number or kind of
shares of the Company or other securities of the Company by
reason of any merger, consolidation, recapitalization,
reclassification, stock split-up, stock dividend or
combination of shares, the Committee shall make an appropriate
and equitable adjustment in the number and kind of shares as
to which the unexercised portion of the Option shall be
exercisable, to the end that after such event the Optionee's
right to a proportionate interest in the Company shall be
maintained as if the Option had already been exercised and the
Option Shares were subject to such change or exchange. Such
adjustment shall be made without change in the total price
applicable to the unexercised portion of the Option and with
a corresponding adjustment in the exercise price per Option
Share. Any such adjustment made by the Committee shall be
final and binding upon the Company, the Optionee and all other
interested persons.
(g) In the event of (i) dissolution or liquidation
of the Company, (ii) a merger or other acquisition in which
the Company is not the surviving corporation, or (iii) an
exchange or other transaction pursuant to which the
outstanding shares of Common Stock of the Company are acquired
by another corporation, then either (i) the Committee, upon
authorization of the Board, shall make an appropriate and
equitable adjustment in the number and kinds of securities
covered by outstanding options, and such options shall be
expressly assumed by the successor corporation, if any; or
(ii) in lieu of such an adjustment, the Board shall provide a
30-day period prior to such event during which each Optionee
shall have the right to exercise the Optionee's outstanding
options, in whole or in part, without regard to the time the
options have been outstanding and without regard to any
vesting schedule provided for in any option agreement entered
into pursuant to the Plan. If the Board provides for such a
30-day period, options not exercised shall expire at the end
of such 30-day period.
2. The obligations of the Company under this Agreement
shall be subject to the approval of such state or federal
authorities or agencies as may have jurisdiction in the matter.
The Company shall use its best efforts to take such steps as may be
required by state or federal law or applicable regulations,
including rules and regulations of the Securities and Exchange
Commission and any stock exchange on which the Company's shares may
then be listed, in connection with the issuance of any Option
Shares, the listing of such shares on any such exchange, or the
sale of any Option Shares. The Company shall not be obligated to
issue or deliver any Option Shares if, upon advice of its legal
counsel, such issuance or delivery would violate state or federal
law.
3. Nothing in the Plan or in this Agreement shall
confer upon the Optionee any right to continued employment with the
Company or any Subsidiary or shall interfere in any way with
the right of the Company or any Subsidiary by whom such Optionee is
employed to terminate the Optionee's employment at any time, either
with or without cause.
4. This Agreement shall be binding upon and shall inure
to the benefit of any successor or successors of the Company, but,
except as provided above, the Option shall not be assigned or
otherwise disposed of by the Optionee.
5. This Agreement replaces the Optionee's Nonstatutory
Stock Option Agreement entered into on December 17, 1993.
6. The Option is subject to the terms and conditions of
the Plan. In the event of any inconsistency between this Agreement
and the Plan, the Plan shall control.
IN WITNESS WHEREOF, the parties have executed this
Agreement in duplicate.
COMPANY: AMERICOLD CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxxxx
Chairman, CEO and President
OPTIONEE:
/s/ J. Xxx Xxxx
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J. Xxx Xxxx
Address: 0000 XX Xxxxxx Xxxx
Xxxx Xxxx, Xxxxxx 00000
