[CONFORMED COPY]
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (this
"Agreement"), dated as of January 17, 1995 (the "Date of Grant"),
is entered into by and between Kash n' Karry Food Stores, Inc., a
Delaware corporation (the "Company"), and Green Equity Investors,
L.P., a Delaware limited partnership (the "Optionee").
WHEREAS, it has been determined that it would be in the
best interests of the Company to grant the non-qualified stock
options provided for herein to the Optionee;
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. Definitions. Any capitalized term not defined in this
Agreement shall have the same meaning as is ascribed thereto
under the Kash n' Karry Food Stores, Inc. 1995 Non-Employee Stock
Option Plan, a copy of which is incorporated by this reference
herein (the "Plan").
2. Grant of Options. The Company hereby grants to the
Optionee, as of the Date of Grant, non-qualified stock options
(collectively, the "Options") to acquire from the Company, at the
exercise price of $15.00 per share, 6,000 shares of Common Stock
(the "Level One Option Shares"), and at the exercise price of
$20.00 per share, 6,000 shares of Common Stock (the "Level Two
Option Shares") (collectively, the "Option Shares"). The Options
are not to be treated as (and are not intended to qualify as)
incentive stock options within the meaning of Section 422 of the
Code.
3. Exercise of the Options.
3.1. Exercisability. Subject to Section 9.3 of this
Agreement, the Level One Options shall vest and become
exercisable on July 30, 1995, and the Level Two Options shall
vest and become exercisable on July 28, 1996. Notwithstanding
the above, upon the occurrence of a Change of Control, all
Options held by the Optionee, whether or not exercisable at such
time, shall become immediately vested and one hundred percent
(100%) exercisable.
3.2. Expiration Date. Unless earlier terminated in
accordance with the terms and provisions of this Agreement, the
Options shall expire and shall no longer be exercisable after
January 16, 2005 (the "Expiration Date").
3.3. No Fractional Shares. In no event shall the
Options be exercisable for a fractional share of Common Stock.
3.4. Limitation of Rights. Neither the Optionee nor
its successors in interest shall have any rights as a shareholder
of the Company with respect to any Common Stock subject to any
Option until the issuance of a stock certificate in respect of
such Common Stock.
4. Method of Exercise and Payment. Upon becoming
exercisable in accordance with Section 3 of this Agreement, the
Options may be exercised in whole or in part at any time and from
time to time prior to the Expiration Date. A partial exercise of
the Options will not affect the Optionee's subsequent right to
exercise the Options as to the remaining Option Shares. Any
portion of an Option that is exercised may not be exercised
again. The Options 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 Limited Rights (the "Exercise Notice"). 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. All or any part of the
exercise price under the Options may be paid in cash, by
certified check, bank draft or money order payable to the order
of the Company or such other form or method of payment as may be
acceptable to the Company and available to the Eligible Directors
under the Plan. Payment may also be made in whole or in part by
the transfer to the Company of shares of Common Stock already
owned by the Optionee for at least six (6) months prior to the
exercise date and having a Fair Market Value equal to all or a
portion of the exercise price as of the exercise date. All
payment instruments shall be accepted by the Company subject to
collection.
5. Non-transferability. These Options, 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. These Options shall not be pledged, encumbered or
otherwise hypothecated in any way at any time by 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 these
Options, or the levy of any execution, attachment or similar
legal process upon these Options, contrary to the terms of this
Agreement shall be null and void and without legal force or
effect. These Options shall be exercisable only by the Optionee.
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6. Changes in Capitalization and Other Matters.
6.1. No Corporate Action Restriction. The existence
of this Agreement and/or the Options granted hereunder shall not
limit, affect or restrict in any way the right or power of the
Board or the shareholders of the Company to make or authorize
(a) any adjustment, recapitalization, reorganization or other
change in the Company's or any Subsidiary's capital structure or
its business, (b) any merger, consolidation or change in the
ownership of the Company or any Subsidiary, (c) any issue of
bonds, debentures, capital, preferred or prior preference stocks
ahead of or affecting the Company's or any Subsidiary's capital
stock or the rights thereof, (d) any dissolution or liquidation
of the Company or any Subsidiary, (e) any sale or transfer of all
or any part of the Company's or any Subsidiary's assets or
business, or (f) any other corporate act or proceeding by the
Company or any Subsidiary. Neither the Optionee nor any other
person shall have any claim against any member of the Board, the
Company or any Subsidiary, or any employees, officers or agents
of the Company or any Subsidiary, as a result of any such action.
6.2. Recapitalization Adjustments. If the outstanding
shares of Common Stock of the Company are increased, decreased,
or changed into or exchanged for, a different number or kind of
securities of the Company through a stock dividend,
reclassification, stock split, reverse stock split,
consolidation, subdivision, split-up, spin-off, split-off or
combination, proportionate adjustments shall be made to reflect
such change, including, without limitation, with respect to the
number of Option Shares and the exercise price or other price per
share of Common Stock in respect of the Options.
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. This
Agreement may only 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:
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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
delivery via U.S. mail), at 6422 Harney Road, Tampa, Florida
33610 (for delivery in person or via overnight courier
service), or at (813) ______-________ (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 its 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 these Options
(and the Option Shares upon exercise of the Options) 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 these Options or any of the
Option Shares pursuant to this Agreement if any such action would
violate any such requirements. The Company may require, as a
condition of any payment or share issuance, that certain
agreements, undertakings, representations, certificates, and/or
information, as the Company may deem necessary or advisable, in
its sole discretion, be executed or provided by the Optionee to
the Company to assure compliance with all such applicable laws or
regulations. Certificates for any Common Stock delivered under
this Agreement may be subject to such stock-transfer orders and
such other restrictions as the Company may deem advisable under
the rules, regulations, or other requirements of the SEC, any
stock exchange upon or trading system in which the Common Stock
is then listed or traded, and any applicable federal or state
securities law. In addition, if, at any time specified herein
for the issuance or other distribution of any Options and/or
Common Stock, or the payment of amounts to the Optionee, any law,
rule, regulation or other requirement of any governmental
authority or agency shall require either the Company, any
Affiliate or any Subsidiary or the Optionee to take any action in
connection therewith, any such issuance or distribution, or any
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such payment, as the case may be, shall be deferred until such
required action is taken.
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
and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereunder.
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
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GREEN EQUITY INVESTORS, L.P.
By: LEONARD GREEN & PARTNERS, L.P.,
Its General Partner
By: /s/ Jennifer Holden Dunbar
Jennifer Holden Dunbar
Its: President, Willow III Inc.
a General Partner of
Leonard Green & Partners
20/WL/LWH/KNK.SEC/S1.95/EX-10-8.ASC
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