[CONFORMED COPY]
NON-QUALIFIED STOCK OPTION AGREEMENT
pursuant to the
KASH N' KARRY FOOD STORES, INC.
1995 KEY EMPLOYEE STOCK OPTION PLAN
* * * * *
Optionee: RONALD E. JOHNSON
Date of Grant: March 9, 1995
Expiration Date: March 8, 2005
Number of Option Shares: 33,849
Exercise Price: $15.00 Per Share
* * * * *
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (this
"Agreement"), dated as of the Date of Grant specified above, is
entered into by and between Kash n' Karry Food Stores, Inc., a
Delaware corporation (the "Company"), and the Optionee specified
above, pursuant to the Kash n' Karry Food Stores, Inc. 1995 Key
Employee Stock Option Plan, as in effect and as amended from time
to time (the "Plan"); and
WHEREAS, it has been determined under the Plan that it
would be in the best interests of the Company to grant the non-
qualified stock option and other rights provided for herein to
the Optionee (i) as an inducement to commence employment with, or
to remain in the employment of, the Company (and/or one of its
Subsidiaries), and (ii) as an incentive for increased effort
during such service;
NOW, THEREFORE, in consideration of the mutual
covenants and premises hereinafter set forth and for other good
and valuable consideration, the parties hereto hereby mutually
covenant and agree as follows:
1. Incorporation By Reference; Plan Document Receipt.
This Agreement is subject in all respects to the terms and
provisions of the Plan (including, without limitation, any
amendments thereto adopted at any time and from time to time if
such amendments are expressly intended to apply to the grant of
the Stock Option hereunder), all of which terms and provisions
are made a part of and incorporated in this Agreement as if they
were each expressly set forth herein. Any capitalized term not
defined in this Agreement shall have the same meaning as is
ascribed thereto under the Plan. The Optionee hereby
acknowledges receipt of a true copy of the Plan and that the
Optionee has read the Plan carefully and fully understands its
content. In the event of any conflict between the terms of this
Agreement and the terms of the Plan, the terms of the Plan shall
control.
2. Grant of Stock Options. The Company hereby grants to
the Optionee, as of the Date of Grant specified above, a non-
qualified stock option (this "Stock Option") to acquire from the
Company, at the Exercise Price per share specified above, the
aggregate number of shares of the Common Stock specified above
(the "Option Shares"). This Stock Option is not to be treated as
(and is not intended to qualify as) an incentive stock option
within the meaning of Section 422 of the Code.
3. Exercise of the Stock Option.
3.1. Exercisability. Unless otherwise provided in
Section 3.4 below or determined by the Committee, this Option
shall become exercisable in accordance with and to the extent
provided by the terms and provisions of Section 6.7 of the Plan.
3.2. Expiration Date. Unless earlier terminated in
accordance with the terms and provisions of the Plan and/or this
Agreement, this Option shall expire and shall no longer be
exercisable after the Expiration Date specified above.
3.3. No Fractional Shares. In no event shall this
Stock Option be exercisable for a fractional share of Common
Stock.
3.4. Acceleration of Exercisability. Notwithstanding
any contrary provision herein, the vesting and exercisability of
the Award shall be accelerated: (a) in accordance with Sections 9
and 10 of the Plan, upon the occurrence of a Merger Event or a
Change of Control of the Company; and (b) upon the termination of
the Optionee's employment with the Company under that certain
Employment Agreement dated as of January 24, 1995, Without Cause
(as defined in said Employment Agreement).
4. Method of Exercise and Payment. The Option shall be
exercised by the Optionee by delivering to the Secretary of the
Company or his designated agent on any business day a written
notice of exercise, in such manner and form as may be required by
the Company, specifying the number of the Option Shares the
Optionee then desires to purchase, or with respect to which the
Optionee then desires to exercise his or her Limited Rights (the
"Exercise Notice"). In the case of an exercise of a Stock
Option, the Exercise Notice shall be accompanied by payment in
full in an amount equal to the product of (a) the Exercise Price
per share specified above, multiplied by (b) the number of Option
Shares specified in the Exercise Notice. Such payment shall be
made in the manner set forth in Section 6.6 of the Plan.
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5. Termination. Unless otherwise determined by the
Committee, this Option shall terminate and be of no force or
effect in accordance with and to the extent provided by the terms
and provisions of Section 7 of the Plan. In any event, this
Option shall terminate on the Expiration Date.
6. Non-transferability. This Option, and any rights or
interests therein, shall not be sold, exchanged, transferred,
assigned or otherwise disposed of in any way at any time by the
Optionee (or any beneficiary(ies) of the Optionee), other than by
testamentary disposition by the Optionee or the laws of intestate
succession. This Option shall not be pledged, encumbered or
otherwise hypothecated in any way at any time by the Optionee (or
any beneficiary(ies) of the Optionee) and shall not be subject to
execution, attachment or similar legal process. Any attempt to
sell, exchange, pledge, transfer, assign, encumber or otherwise
dispose of or hypothecate this Option, or the levy of any
execution, attachment or similar legal process upon this Option,
contrary to the terms of this Agreement and/or the Plan shall be
null and void and without legal force or effect. This Option
shall be exercisable during the Optionee's lifetime only by the
Optionee.
7. Entire Agreement; Amendment. This Agreement contains
the entire agreement between the parties hereto with respect to
the subject matter contained herein, and supersedes all prior
agreements or prior understandings, whether written or oral,
between the parties relating to such subject matter. The Board
or the Committee shall have the right, in its sole discretion, to
modify or amend this Agreement from time to time in accordance
with and as provided in the Plan; provided, however, that no such
modification or amendment shall materially adversely affect the
rights of the Optionee under this Option without the consent of
the Optionee. The Company shall give written notice to the
Optionee of any such modification or amendment of this Agreement
as soon as practicable after the adoption thereof. This
Agreement may also be modified or amended by a writing signed by
both the Company and the Optionee.
8. Miscellaneous.
8.1. Notices. Any Exercise Notice or other notice
which may be required or permitted under this Agreement shall be
in writing, and shall be delivered in person or via facsimile
transmission, overnight courier service or certified mail, return
receipt requested, postage prepaid, properly addressed as
follows:
If such notice is to the Company:
To the attention of the Secretary of Kash n' Karry Food
Stores, Inc., at P.O. Box 11675, Tampa, Florida 33680 (for
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delivery via U.S. mail), at 6422 Harney Road, Tampa, Florida
33610 (for delivery in person or via overnight courier
service), or at (813) 626-9550 (for delivery via facsimile
transmission), or at such other address as the Company, by
notice to the Optionee, shall designate in writing from time
to time.
If such notice is to the Optionee:
At his or her address as shown on the Company's
records, or at such other address as the Optionee, by notice
to the Company, shall designate in writing from time to
time.
8.2. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of
Delaware, without reference to the principles of conflict of laws
thereof.
8.3. Compliance with Laws. The issuance of this Option
(and the Option Shares or the payments upon exercise of this
Option) pursuant to this Agreement shall be subject to, and shall
comply with, any applicable requirements of any federal and state
securities laws, rules and regulations (including, without
limitation, the provisions of the Securities Act of 1933, the
Exchange Act and the respective rules and regulations promulgated
thereunder) and any other law or regulation applicable thereto.
The Company shall not be obligated to issue this Option or any of
the Option Shares, or make any payment, pursuant to this
Agreement if any such action would violate any such requirements.
8.4. Binding Agreement; Assignment. This Agreement shall
inure to the benefit of, be binding upon, and be enforceable by
the Company and its successors and assigns. The Optionee shall
not assign any part of this Agreement without the prior express
written consent of the Company.
8.5. Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed to be an
original, but all of which shall constitute one and the same
instrument.
8.6. Headings. The titles and headings of the various
sections of this Agreement have been inserted for convenience of
reference only and shall not be deemed to be a part of this
Agreement.
8.7. Further Assurances. Each party hereto shall do and
perform (or shall cause to be done and performed) all such
further acts and shall execute and deliver all such other
agreements, certificates, instruments and documents as any party
hereto reasonably may request in order to carry out the intent
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and accomplish the purposes of this Agreement and the Plan and
the consummation of the transactions contemplated thereunder.
8.8. Severability. The invalidity or unenforceability of
any provisions of this Agreement in any jurisdiction shall not
affect the validity, legality or enforceability of the remainder
of this Agreement in such jurisdiction or the validity, legality
or enforceability of any provision of this Agreement in any other
jurisdiction, it being intended that all rights and obligations
of the parties hereunder shall be enforceable to the fullest
extent permitted by law.
IN WITNESS WHEREOF, the Company has caused this
Agreement to be executed by its duly authorized officer, and the
Optionee has hereunto set his hand, all as of the Date of Grant
specified above.
KASH N' KARRY FOOD STORES, INC.
By: /s/ Ronald E. Johnson
Ronald E. Johnson, President
/s/ Ronald E. Johnson
RONALD E. JOHNSON
20/WL/LWH/KNK.SEC/S1.95/EX-10-7B.ASC
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