INTERNATIONAL MULTIFOODS CORPORATION NON-QUALIFIED STOCK OPTION AGREEMENT
EXHIBIT 4.4
INTERNATIONAL MULTIFOODS CORPORATION
THIS AGREEMENT, dated as of July 1, 1998, is entered into between International Multifoods
Corporation, a Delaware corporation (the “Company”), and Xxxxx Xxxxxxxx (the “Consultant”).
The Company, in consideration of consulting services to be provided by the Consultant to the
Company for the period beginning April 27, 1998 and ending on April 27, 1999 (the “Consulting
Period”) under the Consulting Agreement, dated April 27, 1998, between the Company and the
Consultant (the “Consulting Agreement”), wishes to grant a stock option for the purchase of Common
Stock of the Company, par value $.10 per share, out of shares held in the Company’s treasury (the
“Common Stock”), to the Consultant, on the terms and conditions contained in this Agreement.
Accordingly, in consideration of the premises and the agreements set forth herein, the parties
hereto hereby agree as follows:
1. Grant of Option
The Company, effective as of the date of this Agreement, pursuant to Section 157 of the
Delaware General Corporation Law, and resolutions adopted by the Board of Directors of the Company
(the “Board”) on June 19, 1998, hereby grants to the Consultant as compensation for consulting
services to be rendered, the right and option (the “Option”) to purchase all or any part of an
aggregate of 5302 shares of Common Stock (the “Shares”) at the price of $27.75 per share, on the
terms and conditions set forth in this Agreement.
2. Vesting and Term of Option
(a) The Option may not be exercised, in whole or in part, prior to July 1, 1999.
The Option may be exercised in whole or in part, at any time, or from time to time, on or after
July 1, 1999 and on or before the close of business on June 30, 2008, or such shorter period as is
prescribed herein.
(b) Notwithstanding the vesting provision contained in Section 2(a) above, but
subject to the other terms and conditions set forth herein, the Option may be exercised, in whole
or in part, at any time, or from time to time, following the occurrence of a “Change of Control”,
as hereinafter defined.
(c) For the purpose of this Agreement, a “Change of Control” shall mean:
(i) The acquisition by any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) (a
“Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange
Act) of 35% or more of either (A) the then outstanding shares of Common Stock (the “Outstanding
Company Common Stock”) or (B) the combined voting power of the then outstanding voting securities
of the Company entitled to vote generally in the election of directors (the “Outstanding Company
Voting Securities”); provided, however, that for purposes of this subsection (i), the following
acquisitions shall not constitute a Change of Control: (1) any acquisition directly from the
Company, (2) any acquisition by the Company, (3) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any corporation controlled by the Company
or (4) any acquisition by any corporation
pursuant to a transaction which complies with clauses (A), (B) and (C) of subsection (iii) of
this Section 2(c); or
(ii) Individuals who, as of the date hereof, constitute the Board (the “Incumbent
Board”) cease for any reason to constitute at least a majority of the Board; provided, however,
that any individual becoming a director subsequent to the date hereof whose election, or nomination
for election by the Company’s stockholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened election contest with respect to
the election or removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board; or
(iii) Consummation of a reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of the Company (a “Business Combination”), in
each case, unless, following such Business Combination, (A) all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the Outstanding Company
Common Stock and Outstanding Company Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more than 60% of, respectively, the then
outstanding shares of common stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as the case may be, of the
corporation resulting from such Business Combination (including, without limitation, a corporation
which as a result of such transaction owns the Company or all or substantially all of the Company’s
assets either directly or through one or more subsidiaries) in substantially the same proportions
as their ownership, immediately prior to such Business Combination of the Outstanding Company
Common Stock and Outstanding Company Voting Securities, as the case may be, (B) no Person
(excluding any employee benefit plan (or related trust) of the Company or such corporation
resulting from such Business Combination) beneficially owns, directly or indirectly, 35% or more
of, respectively, the then outstanding shares of common stock of the corporation resulting from
such Business Combination or the combined voting power of the then outstanding voting securities of
such corporation except to the extent that such ownership existed prior to the Business Combination
and (C) at least a majority of the members of the board of directors of the corporation resulting
from such Business Combination were members of the Incumbent Board at the time of the execution of
the initial agreement, or of the action of the Board, providing for such Business Combination; or
(iv) Approval by the stockholders of the Company of a complete liquidation or
dissolution of the Company.
3. Termination of Option
The Option shall terminate and may no longer be exercised by the Consultant if the Company
terminates the Consulting Agreement by reason of: (i) the breach by the Consultant of his
obligations and commitments to the Company under the Consulting Agreement; and/or (ii) the gross
and willful misconduct by the Consultant during the Consulting Period, including, but not limited
to, wrongful appropriation of funds or the commission of a gross misdemeanor or felony.
4. Death of Consultant
If the Consultant shall die during the term of the Option, the Option may be exercised at any time
within 12 months after the date of the Consultant’s death, to the
extent that the Option was exercisable by the Consultant on the date of death, by the personal
representatives or administrators of the Consultant or by any person or persons to whom the Option
has been transferred by will or the applicable laws of descent and distribution, subject to the
condition that the Option shall not be exercisable after the expiration of the term of the Option.
5. Method of Exercising Option
Subject to the terms and conditions of this Agreement, the Option may be exercised by written
notice of exercise delivered to the Company, to the attention of the Secretary, 5 business days
prior to the intended date of exercise. Such notice shall state the election to exercise the
Option, the number of Shares as to which the Option is being exercised and the manner of payment
and shall be signed by the Consultant. The notice shall be accompanied by payment in full of the
exercise price for all Shares designated in the notice. Payment of the exercise price shall be
made to the Company by delivery of a check payable to the Company or cash, in United States
currency.
6. Adjustments
In the event of a reorganization, recapitalization, stock split, stock dividend, combination
of shares, merger, consolidation, distribution of assets, or any other changes in the corporate
structure or stock of the Company, the Board shall make such adjustments as are appropriate in the
number and kind of shares covered by the Option and in the exercise price of the Option.
7. Income Tax Withholding
In order to provide the Company with the opportunity to claim the benefit of any income tax
deduction which may be available to it upon the exercise of the Option, and in order to comply with
all applicable federal or state income tax laws or regulations, the Company may take such action as
it deems appropriate to ensure that all applicable federal or state income or other taxes, which
are the sole and absolute responsibility of the Consultant, are reported to the federal and state
taxing authorities and withheld or collected from the Consultant. The Consultant may, at the
Consultant’s election, satisfy applicable tax withholding obligations by (a) delivering a check
payable to the Company or cash, in United States currency, equal to the amount of such taxes, or
(b) delivering to the Company a Form W-9 (Department of the Treasury, Internal Revenue Service)
duly executed by the Consultant, or successor form setting forth the Consultant’s identification
number and a certification by the Consultant to the effect that the Consultant is not subject to
backup withholding.
8. Registration
At any time prior to July l, 1999, the Company will file a Form S-8 registration statement
under the Securities Act of 1933 with respect to the Option and the Shares, or such other form of
registration statement with respect to the Option and the Shares as is deemed appropriate by the
Company.
9. General
(a) Neither the Consultant nor the Consultant’s successors or assigns shall have any
of the rights and privileges of a stockholder of the Company with respect to the Shares of Common
Stock subject to the Option unless and until certificates for such Shares shall have been issued
upon exercise of the Option.
(b) The Option shall not be transferable by the Consultant other than by will or by the
laws of descent and distribution. During the Consultant’s lifetime the Option shall be exercisable
only by the Consultant.
(c) The Company shall not be required, upon the exercise of the Option or any part
thereof, to issue or deliver any Shares until the requirements of any federal or state securities
laws, rules or regulations or other laws or rules (including the rules of the New York Stock
Exchange) as may be determined by the Company to be applicable are satisfied.
(d) The Company shall at all times during the term of the Option reserve and keep
available such number of treasury shares of Common Stock as will be sufficient to satisfy the
requirements of this Agreement.
(e) This Agreement shall be governed by and construed under the internal laws of the
State of Delaware, without giving effect to the conflicts of law principles thereof.
10. Notices
All notices or other communications required or permitted to be given hereunder shall be in
writing and shall be delivered by hand, or sent by telecopy, or sent, postage prepaid, by United
States registered, certified or express mail, or reputable overnight courier service, and shall be
deemed given, if delivered by hand or sent by telecopy, when so delivered or so sent, or, if sent
by mail or by overnight courier service, when received by the addressee, as follows:
(a) If to the Company,
International Multifoods Corporation
000 Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
000 Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Vice President, General Counsel and Secretary
Facsimile Number (000) 000-0000
Facsimile Number (000) 000-0000
(b) If to the Consultant,
Xxxxx Xxxxxxxx
0000 Xxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
0000 Xxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Facsimile Number (000) 000-0000
Either party hereto may change the address or facsimile number to which notices and other
communications are to be delivered or sent by giving the other party prior written notice in the
manner set forth herein.
IN WITNESS WHEREOF, the Company and the Consultant have executed this Agreement as of the day
and year first above written.
| Attest: | International Multifoods Corporation |
||||
| /s/ Xxxxx X. Xxxxxxx | By: | /s/ Xxxx X. Xxxxxxx | |||
| Secretary | Xxxx X. Xxxxxxx | ||||
| Its: | Chairman of the Board, President and Chief Executive Officer |
||||
| /s/ Xxxxx Xxxxxxxx | |||||
| Xxxxx Xxxxxxxx | |||||
