(Exhibit 10(xxvii))
AMERICOLD CORPORATION
KEY EMPLOYEE STOCK OPTION PLAN
NONSTATUTORY STOCK OPTION AGREEMENT
THIS AGREEMENT is effective as of the 17th day of
December, 1993 between AMERICOLD CORPORATION (the "Company"), and
J. ROY COXE (the "Optionee").
To attract and retain able, experienced and trained
people and to provide additional incentives to key employees, the
Board of Directors adopted and the shareholders of the Company
approved the Company's Key Employee Stock Option Plan (the
"Plan"). Pursuant to the Plan, the Compensation Committee of the
Board of Directors (the "Committee") has approved the grant to
the Optionee of an option to purchase shares of the Company's
Common Stock, $.01 par value (the "Common Stock"), in the amount
indicated below. This option is a nonstatutory stock option and
is not an Incentive Stock Option as defined in Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code").
NOW, THEREFORE, in consideration of the mutual
covenants contained in this Agreement, the Company and the
Optionee agree as follows:
1. The Company grants to the Optionee, upon the
terms and conditions set forth below and in the Plan, the right
and option (the "Option") to purchase up to thirty thousand
(30,000) shares (the "Option Shares") of the Company's
authorized, but unissued or reacquired, Common Stock at a
purchase price of $20.40 per share.
(a) Subject to reductions in the Option term as
provided in subsections (d) and (g) of this Section, the
Option shall continue in effect until and including
December 16, 2003 (the "Expiration Date"), at which time the
Option shall automatically terminate. Except as provided in
subsections (d) and (g) of this Section, the Option may be
exercised from time to time over the term of the Option by
the purchase of Option Shares in the following amounts:
(i) During the first year following the grant of
the Option -- none;
(ii) December 17, 1994 -- one-fifth of the Option
Shares;
(iii) December 17, 1995 -- an additional one-fifth
of the Option Shares;
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(iv) December 17, 1996 -- an additional one-fifth
of the Option Shares;
(v) December 17, 1997 --an additional one-fifth
of the Option Shares; and
(vi) December 17, 1998 -- the remaining one-fifth
of the Option Shares;
provided, however, if the Optionee does not purchase in any
one year the full number of Option Shares to which the
Optionee is then entitled, the Optionee's rights shall be
cumulative, and the Optionee may purchase those Option
Shares in any subsequent year during the term of the Option.
(b) Except as provided in subsection (d) of this
Section, the Option may not be exercised unless the Optionee
is then employed by the Company or a subsidiary (as defined
in Section 424(f) of the Code) of the Company ("Subsidiary")
and has been so employed continuously since the date the
Option was granted. However, a leave of absence under rules
established by the Board of Directors shall not be deemed an
interruption of employment for purposes of this Agreement.
(c) The Option shall not be transferable except
by will or by the laws of descent and distribution of the
state or country of the Optionee's domicile at the time of
the Optionee's death. Any such transfer of the Option or
Option Shares shall be subject to the terms and conditions
of the Stockholders' Agreement dated as of December 24,
1986, as currently amended and as amended hereafter (the
"Stockholders' Agreement"), among the Company, Kelso Equity
Partners, L.P., Kelso & Company, L.P., Kelso Investment
Associates II, L.P., KIA III-Americold Inc., L.P., The
Northwestern Mutual Life Insurance Company, New York Life
Insurance Company, New York Life Insurance and Annuity
Corporation and various other shareholders of the Company.
The Option shall be exercisable during the Optionee's
lifetime only by the Optionee or the Optionee's guardian or
legal representation.
(d) If the employment of the Optionee by the
Company or a Subsidiary terminates before the Expiration
Date, the following shall apply:
(i) If the employment of the Optionee by the
Company or a Subsidiary terminates for any reason
other than for cause or as a result of voluntary
termination (as described in Section 7 of the
Employment Agreement dated as of December 6, 1993
between the Company and Optionee), and such
termination of employment occurs before December 17,
1998, the then-unexercised portion of the Option may
be exercised, to the extent that the Optionee was
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entitled to do so on the date of termination, at any
time prior to the earlier of (A) the Expiration Date
of the Option, or (B) the expiration of three months
after the date of termination.
(ii) If the employment of the Optionee by the
Company or a Subsidiary terminates for cause or as a
result of voluntary termination (as described in
Section 7 of the Employment Agreement dated December
6, 1993 between the Company and Optionee), and such
termination of employment occurs before December 17,
1998, the then-unexercised portion of the Option shall
expire, and Optionee shall have no further right or
interest in the Option.
(iii) If the employment of the Optionee by the
Company or a Subsidiary terminates for any reason
other than death or permanent and total disability (as
defined in the Plan), and such termination of
employment does not occur before December 17, 1998,
the then-unexercised portion of the Option may be
exercised, to the extent that the Optionee was
entitled to do so on the date of termination, at any
time prior to the earlier of (A) the Expiration Date
of the Option, or (B) the expiration of three months
after the date of termination.
(iv) If the employment of the Optionee by the
Company or a Subsidiary is terminated because of
permanent and total disability (as defined in the
Plan), and such termination of employment does not
occur before December 17, 1998, the then-unexercised
portion of the Option may be exercised, to the extent
that the Optionee was entitled to do so on the date of
termination, at any time prior to the earlier of
(A) the Expiration Date of the Option, or (B) the
expiration of one year after the date of termination.
(v) If the Optionee dies while employed by the
Company or a Subsidiary, and the date of death does
not occur before December 17, 1998, the
then-unexercised portion of the Option may be
exercised, to the extent that the Optionee was
entitled to do so on the date of the Optionee's death,
at any time prior to the earlier of (A) the Expiration
Date of the Option, or (B) the expiration of one year
after the date of the Optionee's death. However, in
the event of the Optionee's death, the Option may be
exercised only as permitted under, and subject to the
terms and conditions of, the Stockholders' Agreement.
(e) Option Shares may be purchased only upon
receipt by the Company of written notice from the Optionee
specifying the number of Option Shares the Optionee desires
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to purchase, accompanied by full payment in cash for the
Option Shares being purchased plus any required withholding
tax. In addition, the written notice shall contain a
representation that the Optionee intends to acquire the
Option Shares for investment and not for resale. Any
required withholding tax shall be paid in cash or, when
applicable, through a payroll deduction no later than the
next payroll cycle. No Option Shares shall be issued until
full payment has been made. The Optionee shall have none of
the rights of a shareholder with respect to any Option
Shares until the Optionee becomes the holder of record of
such Option Shares.
(f) If the outstanding shares of Common Stock
are changed into or exchanged for a different number or kind
of shares of the Company or other securities of the Company
by reason of any merger, consolidation, recapitalization,
reclassification, stock split-up, stock dividend or
combination of shares, the Committee shall make an
appropriate and equitable adjustment in the number and kind
of shares as to which the unexercised portion of the Option
shall be exercisable, to the end that after such event the
Optionee' s right to a proportionate interest in the Company
shall be maintained as if the Option had already been
exercised and the Option Shares were subject to such change
or exchange. Such adjustment shall be made without change
in the total price applicable to the unexercised portion of
the Option and with a corresponding adjustment in the
exercise price per Option Share. Any such adjustment made
by the Committee shall be final and binding upon the
Company, the Optionee and all other interested persons.
(g) In the event of (i) dissolution or
liquidation of the Company, (ii) a merger in which the
Company is not the surviving corporation, or (ii) exchange
pursuant to which the outstanding shares of Common Stock of
the Company are acquired by another corporation, then either
(i) the Committee, upon authorization of the Board, shall
make an appropriate and equitable adjustment in the number
and kinds of securities covered by outstanding options, and
such options shall be expressly assumed by the successor
corporation, if any; or (ii) in lieu of such an adjustment,
the Board shall provide a 30-day period prior to such event
during which each Optionee shall have the right to exercise
the Optionee's outstanding options, in whole or in part,
without regard to the time the options have been outstanding
and without regard to any vesting schedule provided for in
any option agreement entered into pursuant to the Plan. If
the Board provides for such a 30-day period, options not
exercised shall expire at the end of such 30-day period.
2. The obligations of the Company under this
Agreement shall be subject to the approval of such state or
federal authorities or agencies as may have jurisdiction in the
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matter. The Company shall use its best efforts to take such
steps as may be required by state or federal law or applicable
regulations, including rules and regulations of the Securities
and Exchange Commission and any stock exchange on which the
Company's shares may then be listed, in connection with the
issuance of any Option Shares, the listing of such shares on any
such exchange, or the sale of any Option Shares. The Company
shall not be obligated to issue or deliver any Option Shares if,
upon advice of its legal counsel, such issuance or delivery would
violate state or federal law.
3. Nothing in the Plan or in this Agreement shall
confer upon the Optionee any right to continued employment with
the Company or any Subsidiary or shall interfere in any way with
the right of the Company or any Subsidiary by whom such Optionee
is employed to terminate the Optionee's employment at any time,
either with or without cause.
4. This Agreement shall be binding upon and shall
inure to the benefit of any successor or successors of the
Company, but, except as provided above, the Option shall not be
assigned or otherwise disposed of by the Optionee.
5. The Option is subject to the terms and conditions
of the Plan. In the event of any inconsistency between this
Agreement and the Plan, the Plan shall control.
IN WITNESS WHEREOF, the parties have executed this
Agreement in duplicate.
COMPANY: AMERICOLD CORPORATION
By: /s/ Ronald H. Dykehouse
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Ronald H. Dykehouse
Chairman, CEO and President
OPTIONEE:
/s/ J. Roy Coxe
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J. Roy Coxe
Address:
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