Exhibit 10.45
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT, dated as of October 27, 1997 is made
by and between SPECIALTY FOODS ACQUISITION CORPORATION, a
Delaware corporation (the "Company"), and XXXXXXXX X. XXXXXXXX
(the "Optionee").
WHEREAS, the Company, Specialty Foods Corporation, a Delaware
corporation and a wholly-owned subsidiary of the Company ("SFC"),
and the Optionee entered into an Amended and Restated Executive
Employment Agreement effective as of January 1, 1997 (the
"Employment Agreement"); and
WHEREAS, the Company desires to grant certain options to the
Optionee to purchase shares of common stock, $.01 par value, of
the Company (the "Common Stock") in order to provide for the
Optionee an incentive (i) to remain in the employ of the Company
and its subsidiaries, and (ii) to maintain and enhance the
Company's long-term performance and profitability;
NOW, THEREFORE, in consideration of the foregoing and of the
mutual undertakings set forth in this Stock Option Agreement, the
Company and the Optionee agree as follows:
Section 1. Grant of Option. The Company hereby grants
to the Optionee options (hereinafter referred to collectively and
individually as the "Option") to purchase one million (1,000,000)
shares of Common Stock of the Company, at a purchase price equal
to $0.021332 per share.
Section 3. Exercisability.
(a) Subject to the Employment Agreement, the Option granted
herein shall be exercisable as follows:
Number of Shares Cumulative Number of
as to which Option Shares as to which
On or After becomes Exercisable Option
becomes Exercisable
October 25, 1997 250,000 250,000
October 25, 1998 250,000 500,000
October 25, 1999 250,000 750,000
October 25, 2000 250,000 1,000,000
(b) The Option shall remain exercisable, whether
prior to or following termination of employment, in accordance
with, and subject to, the applicable provisions of the Employment
Agreement.
Section 4. Method of Option Exercise. The Option may be
exercised in its entirety by giving to the Company written notice
of exercise. Full payment of the purchase price shall be made on
the date of such notice (the "Option Exercise Date") by certified
or official bank check or personal check (subject to collection)
payable to the Company. As soon as practicable after it receives
payment of the purchase price, the Company shall deliver to the
Optionee a certificate or certificates for the shares of Common
Stock so purchased.
Section 5. Withholding Tax Requirements. Whenever
shares of Common Stock are to be delivered upon exercise of the
Option, the Company may require as a condition of delivery that
the Optionee remit to the Company an amount sufficient to satisfy
all federal, state and other governmental withholding tax
requirements related thereto, if any. The Company may satisfy
the requirements of the preceding sentence by deducting from the
number of shares otherwise deliverable to the Optionee, a number
of shares having a fair market value equal to the amount required
to satisfy all federal, state and other governmental withholding
tax requirements related thereto, if any.
Section 6. Adjustments Upon Changes in Capitalization.
In the event of any increase or decrease, after the date of this
Stock Option Agreement, in the number of issued shares of Common
Stock resulting from the subdivision or combination of shares of
Common Stock or other capital adjustments, or the payment of a
stock dividend, the Board shall proportionately adjust the number
of shares subject to the Option, the purchase price set forth in
Section 2, and any and all other appropriate matters; provided,
however, that any Option to purchase fractional shares resulting
from any such adjustment shall be rounded up to the next higher
share.
Section 7. Restrictions.
(a) Notwithstanding any other provision of this
Stock Option Agreement, if the Board shall at any time determines
that any Consent (as hereinafter defined) is necessary or
desirable as a condition of, or in connection with, the issuance
or transfer of shares of Common Stock to the Optionee or the
taking of any other action in connection with this Stock Option
Agreement, then such action shall not be taken, in whole or in
part, unless and until such Consent shall have been effected or
obtained to the full satisfaction of the Board; provided,
however, that (i) the Board shall make a good faith effort to
obtain any Consent described in clauses (ii) and (iii) of Section
7(b), and (ii) the obtaining of Consents described in clause (i)
of Section 7(b) shall be governed by the Stockholders Agreement
(as hereinafter defined).
(b) For purposes of this Section 7, the term
"Consent" means (i) any and all listings, registrations or
qualifications in respect thereof upon any securities exchange or
under any federal, state or local law, rule or regulation, (ii)
any and all written agreements and representations by the
Optionee with respect to the disposition of shares of Common
Stock, or with respect to any other matter, which the Board shall
deem necessary or desirable to comply with the terms of any such
listing, registration or qualification or to obtain an exemption
from the requirement that any such listing, qualification or
registration be made, and (iii) any and all consents, clearances
and approvals by any governmental or other regulatory bodies in
respect of any action taken or to be taken under this Stock
Option Agreement, other than Consents described in clause (i)
above.
Section 8. Right of Discharge Reserved. Nothing in this
Stock Option Agreement shall confer upon the Optionee the right
to continue in the employ or service of the Company or any of its
subsidiaries, or affect any right which the Company or any of its
subsidiaries may have to terminate the employment or service of
the Optionee.
Section 9. No Rights as a Stockholder. Neither the
Optionee nor any person succeeding to the Optionee's rights
hereunder shall have any rights as a stockholder with respect to
any shares subject to the Option until the date of the issuance
of a stock certificate to him for such shares. Except for
adjustments made pursuant to Section 6, no adjustment shall be
made for dividends, distributions or other rights (whether
ordinary or extraordinary, and whether in cash, securities or
other property) for which the record date is prior to the date
such stock certificate is issued.
Section 10. Nature of Payments. Any and all issuances of
shares of Common Stock hereunder shall constitute a special
incentive payment to the Optionee. Such issuances and payments
shall not, unless otherwise determined by the Board, be taken
into account in computing the amount of salary or compensation of
the Optionee for the purposes of determining any pension,
retirement, death or other benefits under (i) any pension,
retirement, life insurance or other benefit plan of the Company
or any subsidiary, or (ii) an agreement between the Company or
any subsidiary, on the one hand, and the Optionee, on the other
hand.
Section 11. Definition of Subsidiary. The term
"subsidiary" as used in this Stock Option Agreement shall have
the meaning ascribed to such term in the Employment Agreement.
Section 12. Release of Board Members. By entering into
this Stock Option Agreement, the Optionee agrees that no member
of the Board of Directors of the Company, SFC, or of any
subsidiary or affiliate thereof shall be liable for any action or
determination made in good faith with respect to this Stock
Option Agreement.
Section 13. Section Headings. The section headings
contained herein are for the purposes of convenience only and are
not intended to define or limit the contents of said Sections.
Section 14. Notices. Any notice to be provided hereunder
shall be addressed and given in the manner set forth in the
Employment Agreement.
Section 15. Other Payments or Awards. Nothing contained
in this Stock Option Agreement shall be deemed in any way to
limit or restrict the Company, any subsidiary or the Board from
making any award or payment to the Optionee under any other plan,
arrangement or understanding, whether now existing or hereafter
in effect.
Section 16. Limitations on Transferability.
(a) No right granted to the Optionee under this
Stock Option Agreement shall be assignable or transferable by the
Optionee (whether by operation of law or otherwise and whether
voluntarily or involuntarily), other than by will or by the laws
of descent and distribution. During the lifetime of the
Optionee, all rights granted to the Optionee under this Stock
Option Agreement shall be exercisable only by the Optionee or by
the Optionee's guardian or legal representative.
(b) The shares obtained by the Optionee as a
result of the exercise of the Option will be subject to that
certain Stockholders Agreement dated as of August 16, 1993, as
amended by Amendment dated as of August 19, 1994 and as may be
further amended from time to time (the "Stockholders Agreement"),
by and among the Corporation, the Purchasers and the Investors
(as those terms are defined therein), and upon exercise, and as a
condition to the Corporation's obligation to issue certificates,
the Optionee, or his guardian or legal representative, shall
agree to be bound by the terms thereof by executing and
delivering an Acknowledgment and Agreement in form and substance
acceptable to the Company. In connection with any proposed
amendments to the Stockholders Agreement, the Company agrees to
provide the Optionee with copies of all materials provided to
Investors (as defined in the Stockholders Agreement) when and in
the form such materials are so provided.
Section 17. Board Determinations. The Board shall have
the plenary authority (a) to construe, interpret and implement
this Stock Option Agreement, and (b) to make all determinations
necessary or advisable in administering this Stock Option
Agreement.
Section 18. Successors and Assigns. This Stock Option
Agreement shall be binding upon and inure to the benefit of the
parties hereto and the successors and assigns of the Company and,
to the extent set forth in Section 16, the heirs and personal
representatives of the Optionee.
Section 19. Governing Law. This Agreement shall be
governed by the laws of the State of Delaware applicable to
agreements made and to be performed entirely within such state.
Section 20. Modifications to Stock Option Agreement.
This Stock Option Agreement may not be altered, modified, changed
or discharged, except by a writing signed by or on behalf of both
the Company and the Optionee.
IN WITNESS WHEREOF, the parties hereto have executed this
Stock Option Agreement as of the date first above written.
SPECIALTY FOODS ACQUISITION
CORPORATION
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President
/s/ Xxxxxxxx X. Xxxxxxxx
XXXXXXXX X. XXXXXXXX
