EXHIBIT 10.20
Optionee Name:
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Option Price: $
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Grant Date:
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SCHULTZ SAV-O STORES, INC.
NON-EMPLOYEE DIRECTOR NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, made and entered into as of the grant date set forth
above (the "Grant Date"), by and between SCHULTZ SAV-O STORES, INC., a Wisconsin
corporation (the "Company"), and the optionee named above (the "Optionee").
W I T N E S S E T H :
WHEREAS, the terms of the Schultz Sav-O Stores, Inc. 2001 Nonemployee
Director Stock Option Plan (the "Plan"), to the extent not stated herein, are
specifically incorporated by reference in this Agreement and defined terms used
herein which are not otherwise defined shall have the meaning set forth in the
Plan;
WHEREAS, the purpose of the Plan is to provide for the automatic grant
of options to purchase shares of the Company's Common Stock, $.05 par value
("Common Stock"), to the Company's Nonemployee Directors on an annual basis;
WHEREAS, the grant of this Option complies with the terms of the Plan;
and
WHEREAS, the Optionee is a Nonemployee Director of the Company.
NOW, THEREFORE, in consideration of the premises and of the covenants
and agreements herein set forth, the parties hereby mutually covenant and agree
as follows:
1. Grant of Options. Subject to the terms and conditions of the Plan
and this Agreement, the Company grants to the Optionee this option (the
"Option") to purchase from the Company all or any part of the aggregate number
of 5,000 shares of Common Stock (the "Optioned Shares"), subject to adjustment
as provided in Paragraph 6. This Option is intended to constitute a nonqualified
stock option and shall not be treated as an incentive stock option within the
meaning of Section 422A of the Internal Revenue Code of 1986, as amended.
2. Option Price. The option price to be paid for the Optioned Shares
shall be the price per share set forth above, subject to adjustment as provided
in Paragraph 6. The per share option price has been determined by the Stock
Option Committee (the "Committee") of the Board of Directors of the Company (the
"Board") to be not less than 100% of the fair market value of the Common Stock
on the Grant Date.
3. Exercise of Option.
(a) All rights under this Option are fully vested on the Grant Date.
Subject to the terms and conditions of the Plan and except as otherwise provided
in this Agreement, this Option may be exercised by the Optionee in whole or in
part, from time to time or at any time, beginning on the Grant Date and ending
on the tenth anniversary of the Grant Date (the "Termination Date").
(b) If the Optionee ceases to be a Director of the Company for any
reason (other than for "cause," the death or disability of the Optionee or the
retirement of the Optionee), prior to the Termination Date, this Option, to the
extent not theretofore exercised but then permitted to be exercised under the
percentage limitations of Paragraph (a), may be exercised by the Optionee or by
his legal representative at any time within six months after the date the
Optionee ceases to be a Nonemployee Director upon the tender to the Company in
cash or its equivalent of the full purchase price (and not by the tender of
previously acquired Common Stock), but in no event later than the Termination
Date.
(c) If the Optionee dies while he is a Nonemployee Director of the
Company or is terminated by reason of his retirement or his disability prior to
the Termination Date, this Option, to the extent not theretofore exercised, may
be exercised in whole or in part as follows: (i) by the legal representative of
the Optionee at any time within twelve months after the date of the Optionee's
death or (ii) by the Optionee or his legal representative at any time within six
months after the termination of the Optionee's status as a Nonemployee Director
of the Company by reason of retirement or disability, but in no event later than
the Termination Date in either case.
(d) If the Optionee is terminated as a Nonemployee Director "for
cause," this Option, to the extent not theretofore exercised, shall terminate
immediately and shall not be exercisable following such termination. For
purposes of this Paragraph 3, termination "for cause" shall mean any termination
of the Optionee by reason of any action or omission on the part of the Optionee
which is deemed contrary to the interests of the Company or not in the interests
of the Company, as determined by the Board or the Company's shareholders in
their sole discretion.
(e) This Option may be exercised during the life of the Optionee only
by the Optionee (or his legal representative as provided in this Paragraph 3).
4. Manner of Exercise and Payment. This Option may be exercised only by
written notice to the Company by the Optionee (or his legal representative as
provided in Paragraph 3) of the Optionee's (or such legal representative's)
intent to exercise all or part of this Option, served upon the Secretary of the
Company at its office at Sheboygan, Wisconsin, specifying the number of Optioned
Shares in respect to which this Option is being exercised, accompanied by
payment of the aggregate option price for such Optioned Shares, at the
Optionee's (or such legal representative's) election (except as limited in
Paragraph 3): (a) in cash or by certified check or bank draft to the order of
the Company; (b) by delivering previously acquired shares of Common Stock, duly
endorsed in blank or accompanied by stock powers duly endorsed in blank, valued
at their fair market value at the time of exercise as determined by the
Committee; or (c) by any combination of (a) and (b). For purposes of (b) and (c)
above, the term "previously acquired shares of Common Stock" shall only include
Common Stock owned by the Optionee prior to the exercise of this Option and
shall not include shares of Common Stock which are being acquired pursuant to
the exercise of this Option. Upon receipt of the payment of the aggregate option
price for all of the Optioned Shares so purchased, certificates for such
Optioned Shares shall be issued by or on behalf of the Company to the Optionee.
The Optioned Shares so acquired, upon payment in full of the aggregate option
price, shall be fully paid and nonassessable, except as provided by Section
180.0622(2)(b) of the Wisconsin Statutes.
5. Transferability; Limitations. Subject to the limitations of this
Paragraph 5, this Option shall be transferable, in whole or in part, upon the
surrender of this Option by the Optionee to the Company for one or more new
Options of like tenor representing, in the aggregate, the right to purchase the
number of shares of Common Stock purchasable hereunder, each of such new Options
to represent the right to purchase such number of shares of Common Stock as
shall be designated by the Optionee at the time of such surrender, subject to
the terms and conditions of the Plan and this Option. This Option may only be
transferred by will or by the laws of descent or distribution, or to any member
of the Optionee's "immediate family," as such term is defined in Rule 16a-1(e)
under the Securities Exchange Act of 1934 (the "Exchange Act") or to trusts,
partnerships or other entities established solely for the benefit of members of
the Optionee's immediate family; provided, however, that (x) there may be no
consideration for any such transfer, (y) subsequent transfers of any portion of
this Option must also be in compliance with this Paragraph 5 and (z) promptly
after making any such transfer, the Optionee shall provide to the Company the
Notice of Transfer of Option attached as Exhibit 1 hereto. In the event of such
a permitted transfer of this Option, the transferee shall have all of the rights
of the Optionee under the Plan and this Option, as if the Optionee had retained
this Option. The terms of this Option shall be binding upon the permitted
transferees, executors, administrators, heirs and successors of the Optionee.
6. Adjustment to Optioned Shares and Option Price. In the event of a
capital adjustment resulting from a stock dividend (other than a stock dividend
in lieu of an ordinary cash dividend), stock split, reorganization,
recapitalization, separation, liquidation, Common Stock combination, spin-off,
split-up or distribution of assets to shareholders, recapitalization, merger,
consolidation, combination or exchange of shares or other like change in the
corporate structure of the Company, the Optioned Shares and the per share option
price (but not the aggregate option price for all Optioned Shares, as adjusted)
shall be adjusted in a manner consistent with such capital adjustment and in
accordance with the Plan; provided, however, that no such adjustment shall
require the Company to issue any fractional shares and the adjustment shall be
limited accordingly as determined by the Committee. The determination of the
Committee as to any adjustment shall be final.
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7. Transfer Restrictions. The Optioned Shares to be acquired upon
exercise of this Option may not be sold or offered for sale except pursuant to
an effective registration statement under the Securities Act of 1933, as amended
("Act"), or in a transaction which, in the opinion of legal counsel for the
Company, is exempt from the registration provisions of the Act.
8. Status of Optionee. The Optionee shall not be deemed for any
purposes to be a shareholder of the Company with respect to any of the Optioned
Shares except to the extent that this Option shall have been exercised, the
aggregate option price for the Optioned Shares purchased shall have been fully
paid and a stock certificate shall have been issued by or on behalf of the
Company therefor.
9. Status as a Director. It is fully understood that nothing contained
in this Agreement or the Plan shall be deemed to confer upon the Optionee any
right to continue as a Director of the Company, nor to interfere in any way with
the right of the Company to terminate the Optionee at any time.
10. Interpretation by Committee. As a condition of the granting of this
Option, the Optionee agrees, for himself and his legal representatives, that the
Plan and this Agreement shall be subject to discretionary interpretation by the
Committee and that any interpretation by the Committee of the terms of the Plan
and this Agreement shall be final, binding and conclusive on the Optionee and
his legal representatives in all respects and shall not subject to challenge or
dispute by the Optionee or his legal representatives.
11. Change in Control.
(a) Notwithstanding any other provision of this Agreement upon the
occurrence of a Change in Control (as hereinafter defined) this Option, to the
extent then outstanding and unexercised, prior to the Termination Date, the
Optionee shall have the right for a period of 30 days following the Change in
Control to require the Company to purchase this Option for cash at the aggregate
Acceleration Price (as hereinafter defined) for all Optioned Shares then subject
to issuance upon exercise of this Option; provided, however, that, if then
required by the rules under Section 16 of the Securities Exchange Act of 1934,
as amended ("Section 16 Rules"), the Optionee shall have the right to exercise
this Option or require the Company to purchase this Option only if at least six
months has elapsed between the Grant Date and the Change in Control date.
(b) The "Acceleration Price" shall be the excess of the highest of the
following over the per share option price set forth above (as the same may be
adjusted from time to time pursuant to Paragraph 6) on the Change in Control
date:
(i) the highest reported ask price of the Common Stock, as
reported on NASDAQ or the principal securities exchange or market upon
which the Common Stock is then listed or traded, on or within the 60
days prior to and including the Change in Control date;
(ii) the highest purchase or sale price of the Common Stock
reported in a Schedule 13D or an amendment thereto as paid or received
on or within the 60 days prior to and including the Change in Control
date;
(iii) the highest tender offer price paid or offered for the
Common Stock on or within the 60 days prior to and including the Change
in Control date; and
(iv) the highest cash merger or similar price paid or offered
for the Common Stock on or within the 60 days prior to and including
the Change of Control date.
(c) A "Change in Control" (and the Change in Control date) shall be the
occurrence of any one of the following events (certain defined terms used in
this Paragraph (c) are defined in Paragraph (d)):
(i) the first day of receipt by the Company of a Schedule 13D,
any amendment thereto or notice of a public announcement confirming
that any Person (other than any employee benefit plan of the Company or
of any subsidiary of the Company or any Person organized, appointed or
established pursuant to the terms of any such benefit plan or any
Person who is a key employee of the Company), together with his
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Affiliates or Associates, is or becomes the Beneficial Owner of
securities representing at least 20% of the combined voting power of
the Company;
(ii) the first day on which two or more of the members of the
Board are not Continuing Directors;
(iii) the day on which the shareholders of the Company approve
(A) any business combination, consolidation or merger of the Company in
which the Company is not the continuing or surviving corporation or
pursuant to which shares of the Common Stock would be converted into
cash, securities or other property, other than a merger of the Company
in which the holders of the Common Stock immediately prior to the
merger have the same proportionate ownership of common stock of the
surviving corporation immediately after the merger, or (B) any sale,
lease, exchange or other transfer (in one transaction or a series of
related transactions) of all, or substantially all, of the assets of
the Company; or
(iv) the day on which the shareholders of the Company approve
any plan or proposal for the liquidation or dissolution of the Company.
(d) For purposes of this Paragraph 11:
(i) a "Person" shall mean any individual, firm, corporation,
partnership, trust or other entity.
(ii) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 under the Securities
Exchange Act of 1934, as amended.
(iii) a Person shall be a "Beneficial Owner" of securities (A)
which such Person beneficially owns, directly or indirectly, or (B)
which such Person has the right to acquire (whether such right is
exercisable immediately or only with the passage of time) pursuant to
any agreement, arrangement or understanding (whether or not in writing)
or upon the exercise of conversion rights, exchange rights, rights,
warrants, options or otherwise, other than if such Person acquires or
has the right to acquire such securities as an underwriter, broker,
dealer or selling group member in connection with the public or private
distribution of such securities pursuant to an underwriting or similar
agreement with the Company.
(iv) "Continuing Directors" means any member of the Board who
was a member of the Board on December 14, 2000, and any successor of a
Continuing Director who is recommended or elected to succeed the
Continuing Director by a majority of the remaining Continuing
Directors.
12. Modification. At any time and from time to time the Committee may
direct execution of an instrument providing for the modification, extension or
renewal of this Option; provided, however, that no such modification, extension
or renewal shall (a) confer on the Optionee any right or benefit which could not
be conferred on him by the grant of a new option under the Plan at such time or
(b) alter, impair or adversely affect this Option or Agreement without the
written consent of the Optionee.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer and the Optionee has hereunto affixed
his signature as of the day and year first above written.
SCHULTZ SAV-O STORES, INC.
By:
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Elwood F. Winn
President and Chief Executive Officer
__________________________________________
__________, Optionee
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Exhibit 1
SCHULTZ SAV-O STORES, INC.
NOTICE OF TRANSFER OF STOCK OPTION
This Notice is intended to (i) inform Schultz Sav-O Stores, Inc. (the
"Company"), that ________ ( the "Optionee") has transferred and assigned to the
transferee named below (the "Transferee"), a member of the Optionee's "immediate
family," as such term is defined in Rule 16a-1(e) of the Securities Exchange Act
of 1934, or a trust, partnership or other entity established solely for the
benefit of members of the Optionee's immediate family, all of the Optionee's
right, title and interest in and to a nonqualified stock option (or portion
thereof described below) to purchase ___________ shares of common stock of the
Company at a price of $________ per share, originally granted to the Optionee
pursuant to the Nonqualified Stock Option Agreement, dated _______, 200_, issued
by the Company to the undersigned (the "Option") and (ii) request the Company to
issue a new Option in the name of the Transferee. No consideration has been or
will be received by the Optionee in connection with this transfer.
The Option has been validly transferred and assigned by the Optionee to
the following:
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Name of Transferee Street Address, City, State, Zip Code
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If entire Option has not been
transferred, number of shares
underlying the portion transferred
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Signature of Optionee Date of Transfer
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Signature of Transferee Name
By executing this Notice, the Transferee hereby agrees to comply with
and be subject to the terms and conditions of the Option.
Receipt of this Notice is hereby acknowledged this ___ day of ________,
200_.
SCHULTZ SAV-O STORES, INC.
By:
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Name:
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Title:
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