EXHIBIT 99.6
NON-QUALIFIED OPTION TO PURCHASE
SHARES OF COMMON STOCK
OF J. BAKER, INC.
50,000 September 15, 1997
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No. of Shares Date
Pursuant to a vote of the Compensation Committee (the "Committee") of
the Board of Directors of J. Baker, Inc. (the "Company") held on September 9,
1997, the Company hereby grants to Stuart M. Glasser (the "Optionee") effective
as of the date hereof a Non-qualified Stock Option (the "Option") to purchase
prior to September 15, 2007 (the "Expiration Date") all or any part of 50,000
shares of common stock of the Company (the "Option Shares") at a price of $8.625
per share subject to the terms and conditions contained herein. This Option is
intended to be, and shall be treated as, a non-qualified stock option, and is
not an incentive stock option under the provisions of the Internal Revenue Code
of 1986, as amended (the "Code").
1. Vesting. Subject to the provisions of Section 4 hereof, this Option
shall become vested and exercisable with respect to the following whole number
of Option Shares according to the timetable set forth below and shall continue
to be exercisable by the Optionee at any time or times prior to the Expiration
Date:
Number of
Shares Becoming Cumulative
Available for Number of
Vesting Date Exercise Shares Available
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September 14, 1998 12,500 12,500
September 14, 1999 12,500 25,000
September 14, 2000 12,500 37,500
September 14, 2001 12,500 50,000
Notwithstanding the foregoing, this Option shall become vested and fully
exercisable upon a "Change of Control", as defined herein.
2. Manner of Exercise. The Optionee may exercise this Option only in
the following manner: From time to time prior to the Expiration Date of this
Option, the Optionee may give written notice to the Company of his election to
purchase some or all of the Option Shares purchasable at the time of such
notice. Said notice shall specify the number of shares to be purchased and shall
be accompanied by payment therefor in cash or, subject to the discretion of the
Company, in shares of the Company's common stock that have been held by Optionee
for at least six months and that are not subject to any restrictions under any
Company plan. Such shares shall be valued at their fair market value on the date
of exercise as determined by the closing price of the Company's common stock on
the NASDAQ stock market for the immediately preceding trading day.
Alternatively, the Optionee may deliver to the Company a properly executed
exercise notice together with irrevocable instructions to a broker to promptly
deliver to the Company cash or a check payable and acceptable to the Company to
pay the option purchase price, provided that in the event the Optionee chooses
to pay the option purchase price as so provided, the Optionee and the broker
shall comply with such procedures and enter into such agreements of indemnity
and other agreements as the Committee shall prescribe as a condition of such
payment procedure. The delivery of certificates representing the Option Shares
will be contingent upon the Company's receipt from the Optionee of full payment
for the Option Shares, as set forth above and any agreement, statement or other
evidence that is reasonably required to cause the issuance of Common Stock to be
purchased pursuant to the exercise of Options hereunder and any subsequent
resale of the shares of Common Stock to be in compliance in all reasonable
respects with applicable laws and governmental or regulatory agency regulations.
With respect to the exercise of any Option hereunder, the Company shall proceed
diligently and in an expeditious manner to effect the issuance and delivery of
certificates representing the Option Shares.
3. Non-transferability of Option. Except as provided in the following
sentence, this Option is personal to the Optionee, is not transferable by the
Optionee in any manner by operation of law or otherwise, and is exercisable,
during the Optionee's lifetime, only by him.
4. Termination of Employment. If the Optionee's employment by the
Company or a subsidiary of the Company is terminated, the period within which to
exercise the Option may be subject to earlier termination as set forth below.
(a) Termination Due to Death - If the Optionee's employment
terminates by reason of death, any Option held by the Optionee
shall immediately become fully exercisable and may thereafter
be exercised by the Optionee's legal representative or legatee
for a period of 12 months from the date of death or until the
Expiration Date, if earlier.
(b) Termination Due to Disability - If the Optionee's employment
terminates by reason of Disability (as defined in Section
13(e) of Optionee's Employment Agreement dated as of September
15, 1997 (the "Employment Agreement")), any Option held by the
Optionee shall become immediately fully exercisable and may
thereafter be exercised by the Optionee for a period of 12
months from the date of termination or until the Expiration
Date, if earlier. The death of the Optionee during the
12-month period provided in this Section 4(b) shall extend
such period for another 12 months from the date of death or
until the Expiration Date, if earlier.
(c) Termination Due to Retirement - If the Optionee's
employment terminates by reason of Retirement, any Option
held by the Optionee may be exercised, to the extent
exercisable on the date of termination, for a period of 24
months from the date of termination or until the
Expiration Date, if earlier. The death of the Optionee
during the 24-month period provided in this Section 4(c)
shall extend such period for another 12 months from the
date of death or until the Expiration Date, if earlier.
"Retirement" as referred to herein shall mean the
Optionee's termination of employment with the Company and/or
its subsidiaries after attainment of the age and/or service
requirements to qualify for early or normal retirement
under the Company's qualified retirement plan.
(d) Termination for Cause - If the Optionee's employment
terminates for Cause (as defined in Section 13(c) of the
Employment Agreement), any unexercised Option held by the
Optionee shall immediately terminate and be of no further
force and effect.
(e) Termination Without Cause - If the Optionee's employment is
terminated by the Company without Cause, any Option held by
the Optionee shall immediately become fully vested and
exercisable with respect to all of the Option Shares for a
period of ninety (90) days from the date of termination or
until the Expiration date, if earlier. Thereafter, any Option
held by the Optionee shall terminate and be of no further
force or effect.
(f) Termination for Good Reason - If the Optionee terminates his
employment for "good reason" (as defined in Section 13(a) of
the Employment Agreement) upon giving the Company at least
ninety (90) days notice of his intention to do so, any
Option held by the Optionee shall immediately
become fully vested and exercisable with respect to all
of the Option Shares for a period of ninety (90) days from
the effective date of termination or until the Expiration
Date, if earlier. Thereafter, any Option held by the
Optionee shall terminate and be of no further force or
effect. In the event the Optionee terminates his employment
for "good reason" upon less than ninety (90) days notice to
the Company, the provisions of Section 4(i) shall apply.
(g) Termination after Change of Control - In the event the
Company re-assigns the Optionee such that the Optionee
ceases reporting to the current Chief Executive Officer of
the Company, the Optionee may terminate his employment
with the Company within six (6) months of such
re-assignment and any Option held by the Optionee shall
immediately become fully vested and exercisable with respect
to all of the Option Shares for a period of ninety (90) days
from the date of termination or until the Expiration Date,
if earlier; provided that (A) the Optionee's notice
of such termination occurs after a Change of Control (as
defined herein)and (B) the Optionee
gives at least ninety (90) days notice of such termination.
Upon expiration of ninety (90) days from the date of
termination, any Option held by the Optionee shall terminate
and be of no further force or effect.
(h) Termination for Non-extension of Employment Term - In the
event the Optionee's timely written request to extend the
term of his employment by one (1) year pursuant to
Section 14 of the Employment Agreement is not accepted by the
Company, the Optionee shall be entitled to resign
from employment effective as of the end of the Term (as
defined in Section 7 of the Employment Agreement). Upon such
resignation, any Option held by the Optionee shall immediately
become fully vested and exercisable with respect to all of
the Option Shares for a period of ninety (90) days from the
effective date of termination or until the Expiration date,
if earlier. Thereafter, any Option held by the Optionee
shall terminate and be of no further force or effect.
(i) Other Termination - If the Optionee's employment terminates
for any reason other than those set forth in subparagraphs
(a)-(h) above, and unless otherwise determined by the
Committee, any Option held by the Optionee may be exercised,
to the extent exercisable on the date of termination, for a
period of three months from the date of termination or until
the Expiration Date, if earlier. Any portion of the Option
that is not exercisable on the date of termination shall
terminate as of such date and be of no further force or
effect.
For purposes of this Option a "Change of Control" shall mean the
occurrence of any one of the following events:
(i) any "person," as such term is used in Section 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "Act")
(other than the Company, any of its Subsidiaries, or any trustee,
fiduciary or other person or entity holding securities under any
employee benefit plan or trust of the Company or any of its
subsidiaries), together with all "affiliates" and "associates" (as such
terms are defined in Rule 12B-2 under the Act), directly or indirectly,
of securities of the Company representing 30% or more of either (A) the
combined voting power of the Company's then outstanding securities
having the right to vote in an election of the Company's Board of
Directors ("Voting Securities") or (B) the then outstanding shares of
the common stock, par value $.50 per share, of the Company (the
"Stock")(in either such case other than as a result of acquisition of
securities directly from the Company); or
(ii) persons who, as of June 7, 1994, constituted the
Company's Board of Directors (the "Incumbent Directors") cease for any
reason, including, without limitation, as a result of a tender offer,
proxy contest, merger or similar transaction, to constitute at least a
majority of the Board, provided that any person becoming a director of
the Company subsequent to such date whose election or nomination for
election was approved by a vote of at least a majority of the Incumbent
Directors shall, for purposes of this Plan, be considered an Incumbent
Director; or
(iii) the stockholders of the Company shall approve (A) any
consolidation or merger of the Company or any subsidiary where the
stockholders of the Company, immediately prior to the consolidation or
merger, would not, immediately after the consolidation or merger,
beneficially own (as such term is defined in Rule 13d-3 under the Act),
directly or indirectly, shares representing in the aggregate 80% or
more of the voting shares of the corporation issuing cash or securities
in the consolidation or merger (or of its ultimate parent corporation,
if any), (B) any sale, lease, exchange or other transfer (in one
transaction or a series of transactions contemplated or arranged by any
party as a single plan) of all or substantially all of the assets of
the Company or (C) any plan or proposal for the liquidation or
dissolution of the Company.
Notwithstanding the foregoing, a "Change of Control" shall not be
deemed to have occurred for purposes of the foregoing clause (i) solely as a
result of an acquisition of securities by the Company which, by reducing the
number of shares of Stock or other Voting Securities outstanding, increases (x)
the proportionate number of shares of Stock beneficially owned by any person to
30% or more of the shares of Stock then outstanding or (y) the proportionate
voting power represented by the Voting Securities beneficially owned by any
person to 30% or more of the combined voting power of all then outstanding
Voting Securities; provided, however, that if any person referred to in clause
(x) or (y) of this sentence shall thereafter become the beneficial owner of any
additional shares of Stock or other Voting Securities (other than pursuant to a
stock split, stock dividend, or similar transaction), then a "Change of Control"
shall be deemed to have occurred for purposes of the foregoing clause (i).
5. Option Shares. The shares of stock which are the subject of this
Option are shares of the Common Stock of the Company as constituted on the date
of this Option, subject to adjustment as provided in this Section 5. The terms
of this Option and the number of shares subject to this Option shall be
equitably adjusted in such manner as to prevent dilution or enlargement of
option rights in the following instances:
(a) the declaration of a dividend payable to the holders of
Common Stock in stock of the sameclass;
(b) a split-up of the Common Stock or a reverse split thereof;
and
(c) a recapitalization of the Company under which shares of
one or more different classes of stock are changed into or distributed
in exchange for or upon the Common Stock without payment of any
valuable consideration by the holders thereof.
The terms of any such adjustment shall be conclusively determined by the Board
of Directors.
6. Mergers. In the event of a consolidation or merger or sale of all or
substantially all of the assets of the Company in which the outstanding shares
of Stock are exchanged for securities, cash or other property of any other
corporation or business entity or in the event of a liquidation of the Company,
the Board, or the board of directors of any corporation assuming the obligations
of the Company, may, in its discretion, take any one or more of the following
actions, as to outstanding Stock Options: (i) provide that such Stock Options
shall be assumed, or equivalent options shall be substituted, by the acquiring
or succeeding corporation (or an affiliate thereof), (ii) upon written notice to
the optionee, provide that all unexercised Stock Options will terminate
immediately prior to the consummation of such transaction unless exercised by
the optionee within a specified period following the date of such notice, and/or
(iii) in the event of a business combination under the terms of which holders of
the Stock of the Company will receive upon consummation thereof a cash payment
for each share surrendered in the business combination (the "Merger Price"),
make or provide for a cash payment to the optionee equal to the difference
between (A) the Merger Price times the number of shares of Stock subject to such
outstanding Stock Options (to the extent then exercisable at prices not in
excess of the Merger Price) and (B) the aggregate exercise price of all such
outstanding options in exchange for the termination of such options.
7. No Special Employment Rights. This Option will not confer upon the
Optionee any right with respect to continued employment by the Company or a
Subsidiary, nor will it interfere in any way with any right of the Optionee's
employer to terminate the Optionee's employment at any time.
8. Rights as a Shareholder. The Optionee shall have no rights as a
shareholder with respect to any shares of Common Stock that may be purchased by
exercise of this Option unless and until a certificate or certificates
representing such shares of Common Stock are duly issued and delivered to the
Optionee. No adjustment shall be made for dividends or other rights for which
the record date is prior to the date such stock certificate is issued.
9. Tax Withholding. With respect to the exercise of all or any part of
the Option Shares granted hereunder, the Optionee shall promptly contact the
Company regarding the payment of any Federal, state or local taxes required to
be withheld in connection with such exercise.
10. Miscellaneous. Notices hereunder shall be mailed or delivered to
the Company at its principal place of business, 555 Turnpike Street, Canton,
Massachusetts 02021 and shall be mailed or delivered to the Optionee at his
address set forth below, or in either case at such other address as one party
may subsequently furnish to the other party in writing. This Option shall be
governed by the laws of the Commonwealth of Massachusetts without giving effect
to the choice of law principles thereof.
J. BAKER, INC.
/s/Alan I. Weinstein
Name: Alan I. Weinstein
Title: President and Chief
Executive Officer
Receipt is acknowledged of the foregoing Option and its terms and
conditions are hereby agreed to:
Dated: September 15, 1997 /s/Stuart M. Glasser
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Stuart M. Glasser
318 Beacon Street
Boston, Massachusetts 02116