Commission File No. 0-6544
FORM OF NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, dated as of _______________, is made by
and between Bruno's, Inc., an Alabama corporation hereinafter
referred to as the "Company", and ________, an employee of the
Company or a Subsidiary (as defined below) or Affiliate (as
defined below) 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
$.01 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
stockholders 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.
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.
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Section 1.2 - Cause
"Cause" shall mean, except as otherwise provided in an
employment agreement between the Company and the Optionee, (i)
misconduct by the Optionee involving dishonesty or breach of
trust in connection with Optionee's employment or (ii) conduct
which (A) would be a reasonable basis for an indictment of a
felony or a misdemeanor involving moral turpitude and (B) is
reasonably likely to be injurious to the Company.
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 - Grant Date
"Grant Date" shall mean the date on which the Options
provided for in this Agreement were granted.
Section 1.6 Management Stockholder's Agreement
"Management Stockholder's Agreement" shall mean that
certain Management Stockholder's Agreement dated as of
________________ between the Optionee and the Company.
Section 1.7 - 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 1.8 - Performance Option
"Performance Option" shall mean an Option with respect
to which the commencement of exercisability is governed by
Section 3.1(c) hereof.
Section 1.9 - Permanent Disability
The Optionee shall be deemed to have a "Permanent
Disability" if the Optionee is unable to engage in the activities
required by the Optionee's job by reason of any medically
determined physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months.
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Section 1.10 - Plan
"Plan" shall mean the 1996 Stock Purchase and Option
Plan for Key Employees of Bruno's, Inc. and Subsidiaries.
Section 1.11 - Pronouns
The masculine pronoun shall include the feminine and
neuter, and the singular the plural, where the context so
indicates.
Section 1.12 - Retirement
"Retirement" shall mean retirement at age 62 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 after the Grant Date.
Section 1.13 - Secretary
"Secretary" shall mean the Secretary of the Company.
Section 1.14 - 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 1.15- 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 1.16 - Trigger Date
"Trigger Date" shall mean _____________ (the date on
which the Optionee commenced employment with the Company).
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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 $.01 par
value 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 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 Pursuant to Merger,
Consolidation, etc.
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 and/or the
amount of consideration as to which or for which, as the case may
be, 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.
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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 or Group 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 (A) more than 50% of the voting stock
of the Company being held by a Person or Group that does not
include KKR or any of its Affiliates and (B) more than 50% of the
seats on the Board of Directors of the Company being controlled
by or being designees of a party or parties other than KKR or any
of its Affiliates, 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.
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(c) 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 Target, 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 after the Trigger Date
(but only to the extent such Option has not otherwise terminated
or become exercisable).
(d) For purposes of Section 3.1(c):
(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 January 28, 1996 and ending on the last day of
the Plan Year preceding the Determination Date.
(ii) "Cumulative EBITDA Targets" means with respect to
any Performance Option, the sum of the EBITDA Targets for
the period commencing on January 28, 1996 and ending on the
last day of the Plan Year preceding the Determination Date.
(iii) "Determination Date" means February 15 of each
calendar 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 1997 through
2001 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 January 28,
1996 to February 1, 1997 with respect to Plan Year 1997 and
(ii) thereafter, the period commencing on the day
immediately succeeding the close of the prior Plan Year
until the Saturday closest to each January 31st.
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(vii) "Vesting Date" means August 18th of each
calendar year.
(e) 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 and any Option
(other than 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 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.
Section 3.2 - Expiration of Options
Except as otherwise provided in Section 5 or 6 of the
Management Stockholder's Agreement, the Options may not be
exercised to any extent by the 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
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 Management
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 the Option is terminated pursuant to
Section 5, 6 or 8(b) of the Management Stockholder's
Agreement;
(e) The date of an Optionee's termination of
employment by the Company for Cause; or
(f) 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,
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.
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ARTICLE IV
EXERCISE OF OPTIONS
Section 4.1 - Person Eligible to Exercise
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
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;
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(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
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.
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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.
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 Management 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
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.
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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 Management 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 Management
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 Management Stockholder's Agreement, the terms of the
Management 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 Alabama (or if the Company
reincorporates in another state, the laws 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
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 Alabama (or if the Company
reincorporates in another state, 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
Alabama (or if the Company reincorporates in another state, 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 Alabama (or if
the Company reincorporates in another state, 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.
BRUNO'S, INC.
By:____________________________
_
Xxxxxxx X. Xxxxxx
Chairman and Chief
Executive Officer:
Aggregate number of shares of
Common Stock for which the Time
Option granted hereunder is
_________________________ exercisable (50% of total
Optionee number of shares):
__________
_________________________
_________________________
Address Aggregate number of shares
of Common Stock for which the
Performance Option granted
hereunder is exercisable (50%
of total number of shares):
Optionee's Taxpayer __________
Identification Number:
_________________________
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