EXHIBIT 10.12
ADVANCE HOLDING CORPORATION
1998 SENIOR EXECUTIVE STOCK OPTION PLAN
Section 1. Description of Plan. This is the 1998 Senior Executive
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Stock Option Plan, dated April 15, 1998 (the "Plan") of Advance Holding
Corporation, a Virginia corporation (the "Company"). This Plan will provide a
means whereby designated employees, directors or consultants of the Company
and/or of any directly or indirectly majority or wholly-owned entities of the
Company (individually, a "Subsidiary" and collectively, the "Subsidiaries") may
purchase shares of the common stock, par value $0.01 per share of the Company
(the "Shares"). It is intended that the options under this Plan will either
qualify for treatment as incentive stock options under Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code") and be designated
"Incentive Stock Options" or not qualify for such treatment and be designated
"Nonqualified Stock Options." Incentive Stock Options may only be granted to
employees.
Section 2. Purpose of Plan. The purpose of the Plan and of
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granting options (the "Options") to specified persons is to further the growth,
development and financial success of the Company and its Subsidiaries by
providing additional incentives to their employees, directors or consultants.
By assisting such persons in acquiring Shares, the Company can ensure that such
persons will themselves benefit directly from the Company's and its
Subsidiaries' growth, development and financial success.
Section 3. Eligibility. The persons who shall be eligible to
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receive grants of Options under the Plan shall be the designated senior
executives of the Company and/or its Subsidiaries as determined from time to
time by the Board of Directors (the "Board") of the Company. A person who holds
an Option is herein referred to as a "Participant," and more than one Option may
be granted to any Participant.
The aggregate fair market value (determined as of the time an Option
is granted) of the Shares with respect to which Incentive Stock Options are
exercisable for the first time by any participant in any calendar year under
this Plan and any other incentive stock option plans (which qualify under
Section 422 of the Code) of the Company or any Subsidiary shall not exceed
$100,000.
Section 4. Administration.
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(a) Except as otherwise provided herein, the Plan shall be
administered by the Board or, at the Board's option, by a compensation committee
thereof from time to time constituted, to whom administration of this Plan has
been duly delegated (the Board and such committee, are collectively referred to
hereinafter as the "Committee"). Any action of the Board
or the Committee with respect to administration of the Plan shall be taken by a
majority vote or written consent of its members. Upon the first registration of
an equity security of the Company under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), to the extent possible and advisable, the
Committee may be constituted so as to permit this Plan to comply with Rule 16b-3
promulgated under Section 16 of the Exchange Act and Section 162(m) of the Code.
(b) The Committee is authorized and empowered to administer
the Plan and, subject to the Plan, including but not limited to Section 19,
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(i) to determine the dates upon which Options shall be granted and the terms and
conditions thereof in a manner consistent with the Plan, which terms and
conditions need not be identical as to the various Options granted; (ii) to
interpret the Plan; (iii) to grant Options; (iv) to determine the Participants;
(v) to specify the terms of the Options; (vi) to determine the number of Shares
which may be purchased; (vii) to determine the fair market value of the Shares;
(viii) to accelerate the time during which an Option may be exercised in
accordance with the provisions of Section 14 hereof, and to otherwise accelerate
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the time during which an Option may be exercised, in each case notwithstanding
the provisions in the Option Agreement (as defined in Section 11 hereof) stating
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the time during which it may be exercised; (ix) to reissue the Plan and related
benefits hereunder as a direct plan of a Subsidiary or Subsidiaries, converting
the Options and Shares issued under this Plan to options and shares of such
Subsidiary or Subsidiaries, as the case may be; (x) to prescribe, amend and
rescind rules relating to the Plan; (xi) to authorize any person to execute on
behalf of the Company any instrument required to effectuate the grant of an
Option previously granted by the Committee; (xii) to determine the rights and
obligations of Participants under the Plan; and (xiii) to make all other
determinations deemed necessary or advisable for the administration of the Plan.
The interpretation and construction by the Committee of any provision of the
Plan or of any Option granted under it shall be final. No member of the
Committee shall be liable for any action or determination made with respect to
the Plan or any Option granted hereunder.
Section 5. Shares Subject to Plan. The aggregate number of Shares
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for which Options may be granted pursuant to the Plan shall be Five Hundred Ten
Thousand (510,000). Such number shall be automatically adjusted for any
reorganization, recapitalization, reclassification, stock dividend, stock split,
reverse stock split or other similar transaction of the Company. The number of
Shares which may be purchased by a Participant upon exercise of each Option
shall be determined by the Committee and set forth in each Option Agreement (as
such term is defined in Section 11 hereof). Upon the expiration or termination,
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in whole or in part, for any reason of an outstanding Option or any portion
thereof which shall not have vested or shall not have been exercised in full or
in the event that any Shares acquired pursuant to the Plan are reacquired by the
Company, (a) any Shares which have not been purchased or (b) the Shares
reacquired, as the case may be, shall again become available for the granting of
additional Options under the Plan.
Section 6. Restrictions on Grants; Vesting of Options.
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Notwithstanding any other provisions set forth herein or in any Option
Agreement, no Options may be granted under
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the Plan subsequent to ten (10) years from the date hereof. Each Option shall
grant the Participant the right to purchase a specified number of Shares at the
price determined by the Committee, as set forth in each respective Option
Agreement (the "Exercise Price"); provided, however, that if the Participant is
a 10% stockholder of the Company (as defined in Section 422(b)(6) of the Code)
at the time such Participant is granted an Incentive Stock Option, the Exercise
Price shall be not less than 110% of the fair market value of such shares on the
date of grant of the Option. Such fair market value shall be determined by the
Committee (i) if the Company's securities are traded on a national securities
exchange or on the Nasdaq National Market, on the basis of the reported closing
sales price on such date or, in the absence of a reported sales price on such
date, on the basis of the average of the reported closing bid and ask price on
such date, or (ii) in the absence of both a reported sales price and a reported
bid and ask price under clause (i), the Committee shall determine such fair
market value on the basis of such evidence as it deems appropriate in its sole
discretion. The Options shall vest based on longevity of service, targeted goals
and/or other schedules established by the Committee, as set forth in each Option
Agreement, with respect to the Company and/or its Subsidiaries. In the case of
options which vest based on the achievement of targeted goals, the Committee
shall determine the performance criteria, the performance measurement period(s)
and the schedule of exercisability applicable to each Option or group of Options
in a schedule, a copy of which shall be filed with the records of the Committee
and attached to each Option Agreement to which the same applies. The performance
criteria, the performance measurement period(s), and the schedule of
exercisability need not be identical for all Options granted hereunder.
Following the conclusion of each applicable performance measurement period, the
Committee shall determine, in its sole good faith judgment, the extent, if at
all, that each Option subject thereto shall have become exercisable based upon
the applicable performance criteria and the schedule of exercisability. To the
extent each such Option shall remain nonexercisable following the final
performance measurement period because the applicable performance criteria have
not been met, it shall, to that extent, automatically terminate and cease to be
exercisable to such extent notwithstanding the stated term during which it
otherwise may have been exercised. The Committee shall promptly notify each
affected Participant of such determination. The Committee may periodically
review the performance criteria applicable to any Option or Options and, in its
sole good faith judgment, may adjust the same to reflect mergers, acquisitions,
asset sales, catastrophes and significant increases in the level of capital
expenditures or inventory levels.
Section 7. Exercise of Options. Once vested, the Options may be
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exercised by the Participant by giving written notice to the Company specifying
the number of Shares to be purchased and accompanied by payment of the full
Exercise Price therefor in cash, by check or in such other form of lawful
consideration as the Committee may approve from time to time, including without
limitation and in the sole discretion of the Committee, the assignment in
transfer by the Participant to the Company of outstanding shares of common stock
theretofore held by the Participant in a manner intended to comply with the
provisions of Rule 16b-3 under the Exchange Act, if applicable. Once vested,
the Options may only be exercised by the Participant or in the event of death of
the Participant, by the person or persons (including the deceased Participant's
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estate) to whom the deceased Participant's rights under such Option shall have
passed by will or the laws of descent and distribution. Notwithstanding the
immediately preceding sentence, in the event of disability (within the meaning
of Section 22(e)(3) of the Code) of a Participant, a designee of the Participant
(or the legal representative of the Participant if the Participant has no
designee) may exercise the Option on behalf of such Participant (provided such
Option would have been exercisable by such Participant) until the right to
exercise such Option expires, as set forth in such Participant's particular
Option Agreement.
Section 8. Issuance of Shares. The Company's obligation to issue
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Shares upon exercise of an Option is expressly conditioned upon (i) the
compliance by the Company with any registration or other qualification
obligations with respect to such Shares under any state and/or federal law or
rulings and regulations of any government regulatory body, and/or (ii) the
making of such investment representations or other representations and
undertakings by the Participant (or the Participant's designee legal
representative, heir or legatee, as the case may be) in order to comply with the
requirements of any exemption from any such registration or other qualification
obligations with respect to such Shares which the Company in its sole discretion
shall deem necessary or advisable. Such required representations and
undertakings may include representations and agreements that such Participant
(or the Participant's designee legal representative, heir or legatee): (a) is
purchasing such Shares for investment and not with any present intention of
selling or otherwise disposing of such Shares in violation of Securities Act of
1933, as amended (the "Securities Act"), and the rules and regulations
promulgated thereunder; and (b) agrees to have a legend placed upon the face and
reverse of any certificates evidencing such Shares setting forth (i) any
representations and undertakings which such Participant has given to the Company
or a reference thereto, and (ii) that, prior to effecting any sale or other
disposition of any such Shares, the Participant must furnish to the Company an
opinion of counsel, form and substance satisfactory to the Company and its
counsel, to the effect that such sale or disposition will not violate the
applicable requirements of state and federal laws and regulatory agencies;
provided, however, that any such legend or data entry shall be removed when no
longer applicable. The inability of the Company to obtain, from any regulatory
body having jurisdiction, authority reasonably deemed by the Company's counsel
to be necessary for the lawful issuance and sale of any Shares hereunder shall
relieve the Company of any liability in respect of the nonissuance or sale of
such Shares as to which such requisite authority shall not have been obtained.
Any Shares issued by the Company upon exercise of an Option granted hereunder
shall be subject to (x) a right of first refusal of the Company with respect to
all Shares proposed to be transferred by Participant, (y) certain drag-along
rights, as described in Section 11 hereof, and (z) certain other restrictions
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set forth in each particular Option Agreement.
Section 9. Nontransferability. An Option may not be sold,
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pledged, assigned, hypothecated, transferred or disposed of in any manner other
than by will or by the laws of descent or distribution. Any permitted
transferee shall be required prior to any transfer of an Option or Shares
acquired pursuant to the exercise of an Option to execute a written undertaking
to be bound by the provisions of the applicable Option Agreement.
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Section 10. Adjustments Upon Recapitalization or Reorganization.
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Subject to Section 13(b) hereof, if the outstanding shares of the Common Stock
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of the Company are changed into, or exchanged for, a different number or kind of
shares or securities of the Company through any capital reorganization or
reclassification, or if the number of outstanding shares is changed through a
stock split or stock dividend, an appropriate adjustment shall be made by the
Committee in the number, kind or exercise price of shares as to which Options
may be granted under the Plan. A corresponding adjustment shall likewise be
made in the number, kind or exercise price of shares with respect to which
unexercised Options have theretofore been granted. Any such adjustment in an
outstanding Option, however, shall be made without change in the total price
applicable to the unexercised portion of the Option but with a corresponding
adjustment in the price for each share covered by the Option. In making such
adjustments, or in determining that no such adjustments are necessary, the
Committee may rely upon the advice of counsel and accountants to the Company,
and the good faith determination of the Committee shall be final, conclusive and
binding. No fractional shares of stock shall be issued or issuable under the
Plan on account of any such adjustment.
Section 11. Option Agreement. Each Option granted under the Plan
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shall be evidenced by a written option agreement (an "Option Agreement")
executed by the Company and the Participant which (a) shall contain each of the
provisions and agreements herein specifically required to be contained therein;
(b) shall contain provisions which give the Company a right of first refusal to
purchase any Shares issued pursuant to the exercise of Options granted under the
Plan which a Participant proposes to sell; (c) shall contain certain "drag-
along" rights; and (d) may contain such other terms and conditions as the
Committee deems desirable and which are not inconsistent with the Plan.
Section 12. Privileges of Stock Ownership. Persons entitled to
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exercise any Options granted under this Plan shall have all of the rights or
privileges of a shareholder of the Company in respect of any shares of common
stock issuable upon exercise of such Option from and after the date of exercise
of an Option. No shares shall be issued and delivered upon exercise of any
Option unless and until, in the opinion of counsel for the Company, there shall
have been full compliance with any applicable registration requirements of the
Securities Act, any applicable listing requirements of any national securities
exchange or automated quotation system on which the common stock of the Company
is then listed or quoted, and any other requirements of law or of any regulatory
bodies having jurisdiction over such issuance and delivery. The Company agrees
to take all actions reasonably necessary to comply with all such requirements.
The Company agrees that shares of common stock issued upon the
exercise of Options shall, at the time of delivery, be validly issued and
outstanding, fully paid and nonassessable. The Company covenants and agrees
that it will pay, when due and payable, any and all federal and state stamp,
original issue, or similar taxes which may be payable in respect of the issue of
the Option or of Shares upon the exercise thereof.
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Section 13. Termination of Options.
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(a) Each Option granted under the Plan shall set forth a
termination date thereof, which shall be not later than seven (7) years from
the date such Option is granted subject to earlier termination as set forth in
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Section 6, Section 13(b), or Section 14 hereof, or as otherwise set forth in
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each particular Option Agreement; provided, however, with respect to Incentive
Stock Options, such termination shall be not later than five (5) years from the
date such Option is granted if the Participant is a 10% stockholder of the
Company (as defined in Section 422(b)(6) of the Code) at the time such Option is
granted. An Incentive Stock Option shall contain any termination events required
by Section 422 of the Code. The termination of employment, or service as a
director or consultant, of a Participant for any reason shall not accelerate or
otherwise affect the number of Shares which may be purchased upon exercise of an
Option; provided, however, that the Option may only be exercised with respect to
that number of Shares which could have been purchased under the Option had the
Option been exercised by the Participant on the date of such termination.
(b) Subject to Section 14 hereof (i) upon the dissolution,
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liquidation or sale of all or substantially all of the business, properties and
assets of the Company, (ii) upon any reorganization, merger, consolidation, sale
or exchange of securities in which the Company does not survive, or (iii) upon
any sale, reorganization, merger, consolidation or exchange of securities in
which the Company does survive and any of the Company's stockholders have the
opportunity to receive cash, securities of another corporation, partnership or
limited liability company and/or other property in exchange for their capital
stock of the Company, or (iv) upon any acquisition by any person or group (as
defined in Section 13d of the Securities Act of 1934) of beneficial ownership of
more than fifty percent (50%) of the Company's then outstanding shares of common
stock (each of the events described in clauses (i), (ii), (iii) or (iv) is
referred to herein individually as an "Extraordinary Event" and collectively as
the "Extraordinary Events"), the Plan and each outstanding Option shall
terminate, unless the Surviving Entity (defined below) elects to have such
Option survive the Extraordinary Event pursuant to the next paragraph. In such
event each Participant shall have the right, by giving notice ten (10) days
before the effective date of such Extraordinary Event (the "Effective Date"), to
exercise on or before the Effective Date, in whole or in part, any unexpired
Option issued to the Participant, to the extent that said Option is vested as of
the Effective Date and exercisable as of the Effective Date, and otherwise is
vested and exercisable pursuant to the provisions of said Option and of Section
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6 of the Plan.
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In its sole and absolute discretion, the surviving entity (which may
be the Company) or the entity that has acquired all or substantially all of the
Company's assets (the "Surviving Entity") may, but shall not be so obligated, to
permit an Option to survive an Extraordinary Event or tender to any Participant
an option or options to purchase shares or equity interests in such Surviving
Entity, and such continuing or new option or options shall contain such terms
and provisions as shall be required to substantially preserve the rights and
benefits of any
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Option then outstanding under the Plan with any reasonable changes to take into
account the circumstances of the Surviving Entity.
Section 14. Acceleration of Options. Notwithstanding the
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provisions of Section 6 or Section 13 hereof, or any provision to the contrary
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contained in a particular Option Agreement, the Committee, in its sole
discretion, may accelerate the vesting of all or any portion of any Option then
outstanding. The decision by the Committee to accelerate an Option or to
decline to accelerate an Option shall be final. In the event of the
acceleration of the exercisability of Options as the result of a decision by the
Committee pursuant to this Section 14, each outstanding Option so accelerated
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shall be exercisable for a period from and after the date of such acceleration
and upon such other terms and conditions as the Committee may determine in its
sole discretion, provided that such terms and conditions (other than terms and
conditions relating solely to the acceleration of exercisability and the related
termination of an Option) may not adversely affect the rights of any Participant
without the consent of the Participant so adversely affected. Any outstanding
Option which has not been exercised by the holder at the end of such period
shall terminate automatically at that time.
Section 15. Substitute Options. If the Company at any time should
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succeed to the business of another entity through a merger, consolidation,
corporate reorganization or exchange, or through the acquisition of stock or
assets of such entity or its subsidiaries or otherwise, Options may be granted
under the Plan to option holders of such entity or its subsidiaries, in
substitution for options to purchase Shares in such entity held by them at the
time of succession. The Committee, in its sole and absolute discretion, shall
determine the extent to which such substitute Options shall be granted (if at
all), the person or persons to receive such substitute Options (who need not be
all option holders of such entity), the number of Options to be received by each
such person, the exercise price of such Option and the other terms and
conditions of such substitute Options.
Section 16. Withholding of Taxes. The Company, or a Subsidiary, as
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the case may be, may deduct and withhold from the wages, salary, bonus and other
income paid by the Company (or such Subsidiary) to the Participant the requisite
tax upon the amount of taxable income, if any, recognized by the Participant in
connection with the exercise in whole or in part of any Option, or the sale of
the Shares issued to the Participant upon the exercise of an Option, as may be
required from time to time under any federal or state tax laws and regulations.
This withholding of tax shall be made from the Company's (or such Subsidiary's)
concurrent or next payment of wages, salary, bonus or other income to the
Participant or by payment to the Company (or such Subsidiary) by the Participant
of the required withholding tax, as the Committee may determine; provided,
however, that, in the sole discretion of the Committee, the Participant may pay
such tax by reducing the number of Shares issued upon exercise of an Option
(for which purpose such Shares shall be valued at fair market value as
determined in good faith by the Committee based on the fair market value of such
Shares determined by the Board, which determination shall be final).
Notwithstanding the foregoing, the Company shall not be obligated
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to issue certificates representing the shares of common stock of the Company to
be acquired through the exercise of such Option if such Participant fails to
provide the Company with adequate assurance that such Participant will pay such
amounts to the Company as herein above required. Participants shall notify the
Company in writing of any amounts included as income in the Participants'
federal income tax returns in connection with an Option.
Section 17. Effectiveness and Termination of the Plan. The Plan
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shall be effective as of the date on which this Plan is approved by the Board.
The Plan shall terminate at the earliest of the time when all Shares which may
be issued hereunder have been so issued. However, the Board may, in its sole
discretion, terminate the Plan at any prior time. Subject to Section 13 hereof,
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no such termination shall in any way affect any Option then outstanding.
Section 18. Time of Granting Options. The date of grant of an
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Option shall, for all purposes, be the date on which the Board makes the
determination granting such an Option. Notice of the determination shall be
given to each Participant to whom an Option is so granted within a reasonable
time after the date of such grant.
Section 19. Amendment of Plan. Subject to Section 14, the
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Committee may make such amendments to the Plan as it shall deem advisable.
Subject to Section 14, no amendment shall in any way adversely affect any Option
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then outstanding, without the consent of the Participant so adversely affected.
Section 20. Transfers and Leaves of Absence. For purposes of the
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Plan, (a) a transfer of a Participant's employment, without an intervening
period, between the Company and a Subsidiary (or vice versa) or between
Subsidiaries shall not be deemed a termination of employment and (b) a
Participant who is granted in writing a leave of absence shall be deemed to have
remained in the employ of the Company (or a Subsidiary, whichever is applicable)
during such leave of absence.
Section 21. No Obligation to Exercise Option. The granting of an
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Option shall impose no obligation on the Participant to exercise such Option.
Section 22. Indemnification. In addition to such other rights of
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indemnification as they may have as members of the Board of Directors, the
members of the Committee shall be indemnified by the Company to the fullest
extent permitted by law against the reasonable expenses, including attorney's
fees, actually and necessarily incurred in connection with the defense of any
action, suit or proceeding, or in connection with any appeal therein, to which
they or any of them may be a party by reason of any action taken or failure to
act under or in connection with the Plan or any Option granted thereunder, and
against all amounts paid by them in satisfaction of a judgment in any such
action, suit or proceeding except in relation to matters as to which it shall be
adjudged in such action, suit or proceeding that such Committee member is not
entitled to indemnification under applicable law; provided, however, that within
sixty (60)
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days after institution of any such action, suit or proceeding such Committee
member shall in writing offer the Company the opportunity, at the Company's
expense to handle and defend the same, and such Committee member shall cooperate
with and assist the Company in the defense of any such action, suit or
proceeding. The Company shall not be obligated to indemnify any Committee member
with regard to any settlement of any action, suit or proceeding of which the
Company did not consent to in writing prior to such settlement.
Section 23. Governing Law. The Plan and any Option granted
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pursuant to the Plan shall be construed under and governed by the laws of the
Commonwealth of Virginia without regard to conflict of law provisions thereof.
Section 24. Not an Employment or Consulting Agreement. Nothing
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contained in the Plan or in any Option Agreement shall confer, intend to confer
or imply any rights of employment or rights to continued employment by the
Company or any Subsidiary in favor of any Participant or limit the ability of
the Company or any Subsidiary to terminate, with or without cause, in its sole
and absolute discretion, the employment of any Participant, subject to the terms
of any written employment to which a Participant is a party. In addition,
nothing contained in the Plan or in any Option Agreement shall preclude any
lawful action by the Company or the Board.
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