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EXHIBIT 10.10
HOME INTERIORS & GIFTS, INC. 1998 STOCK OPTION TRUST
This Agreement made this 4th day of June 1998, by and between
Home Interiors & Gifts, Inc. (the "Company") and Jeffrey Fink (the "Trustee").
WHEREAS, Company has adopted the Home Interiors & Gifts, Inc.
1998 Stock Option Plan for Unit Directors, Branch Directors and Certain Other
Independent Contractors (the "Option Plan"), and
WHEREAS, Company wishes to establish a trust (hereinafter
called the "Trust") and to make stock option grants under the Option Plan to
the Trust that shall be held therein, subject to the claims of Company's
creditors in the event of Company's Insolvency, as herein defined, until such
grants (or the cash proceeds thereon) are distributed to participants in the
Option Plan (the "Participants") in such manner and at such times as specified
herein and in the Option Plan.
NOW, THEREFORE, the parties do hereby establish the Trust and
agree that the Trust shall be comprised, held and disposed of as follows:
Section 1. Establishment Of Trust.
(a) Company hereby deposits with Trustee in trust such
rights under the stock option agreement between Company and Trustee attached
hereto as Exhibit I (the "Initial Trust Options"), which shall become the
principal of the Trust to be held, administered and disposed of by Trustee as
provided in this Agreement.
(b) The parties intend that the Trust will be an
independent legal entity. The Trust hereby established shall be irrevocable.
(c) The Trust is intended to be a grantor trust, of which
Company is the grantor, within the meaning of subpart E, part I, subchapter J,
chapter 1, subtitle A of the Internal Revenue Code of 1986, as amended, and
shall be construed accordingly.
(d) The principal of the Trust, and any earnings thereon,
shall be held separate and apart from other funds of the Company and shall be
used exclusively for the uses
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and purposes of Participants and general creditors as herein set forth.
Participants shall have no preferred claim on, or any beneficial ownership
interest in, any assets of the Trust. Any rights created under this Trust
Agreement shall be mere unsecured contractual rights of Participants against
the Company. Any assets held by the Trust will be subject to the claims of the
Company's general creditors under federal and state law in the event of
Insolvency, as defined in Section 3(a) herein.
(e) Company, in its sole discretion, may at any time, or
from time to time, make additional deposits of stock option agreements between
Company and Trustee (the "Subsequent Trust Options" and, together with the
Initial Trust Options, the "Trust Options"), which shall augment the principal
to be held, administered and disposed of by Trustee as provided in this
Agreement. Neither Trustee nor any Participant shall have any right to compel
such additional deposits.
Section 2. Transfers to Participants.
(a) Exhibit II attached hereto is a schedule (the
"Transfer Schedule") that indicates the Participants to whom the Initial Trust
Options are to be allocated and transferred, and the portion of the Initial
Trust Options allocable thereto. Following the issuance of Subsequent Trust
Options, Company shall update the Transfer Schedule to indicate the
Participants to whom Subsequent Trust Options are to be allocated and
transferred, and the portion allocable thereto. Company shall prepare, and the
Trustee shall deliver, at the expense of Company, a notice to each Participant
indicating his or her units of participation in the Trust, each of which
represents a contingent right to receive a distribution and transfer of a Trust
Option that is exercisable for one share of common stock, par value $0.10 per
share ("Common Stock"), of Company, subject to adjustments for stock splits,
stock dividends and other adjustments pursuant to the terms of the Option Plan
(a "Unit"). Each Unit, and any Trust Option distributable thereon, shall
remain outstanding until forfeited or terminated in accordance with the terms
of the Option Plan. Company shall update the Transfer Schedule no less often
than quarterly and any time at the request of the Trustee, to reflect any
forfeitures or terminations of Units.
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(b) Upon the termination of the Trust, Trustee shall
divide and transfer its rights under the Trust Options such that each
Participant receives an option to purchase one share of Common Stock for each
outstanding Unit, which option shall be exercisable upon the terms and
conditions specified in the Option Plan and the Trust Options applicable to the
Unit. If Company exercises any of its cash-out rights under the Option Plan
with respect to all or a portion of the Trust Options, whether upon termination
of the Trust or otherwise, Trustee, based upon information provided by Company
and at the expense of Company, shall distribute to each affected Participant,
in satisfaction of each outstanding Unit subject to such rights and in lieu of
each such Participant's right to a Trust Option, the amount of cash received
with respect to each such Unit.
(c) If the principal of the Trust, and any earnings
thereon, are not sufficient to make the transfers (or cash distributions in
lieu thereof) in accordance with the terms of the Transfer Schedule, Company
shall remain obligated to make substantially similar transfers for any
Participant who does not receive a transfer and distribution of Trust Options
(or a cash distribution in lien thereof) in satisfaction of all of such
Participant's outstanding Units. Trustee shall notify Company where principal
and earnings are not sufficient.
Section 3. Trustee Responsibility Regarding Transfers to
Participants When Company Is Insolvent.
(a) Trustee shall cease the division and transfer of
Trust Options (or any proceeds thereon) to Participants if Company is
Insolvent. Company shall be considered "Insolvent" for purposes of this
Agreement if (i) Company is unable to pay its debts as they become due, or (ii)
Company is subject to a pending proceeding as a debtor under the United States
Bankruptcy Code.
(b) At all times during the continuance of the Trust, the
principal and income of the Trust shall be subject to claims of general
creditors of Company under federal and state law as set forth below.
(1) The Board of Directors and the Chief
Executive Officer of Company shall have the duty to inform Trustee in
writing of Company's Insolvency. If a person claiming to be a
creditor of Company alleges
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in writing to Trustee that Company has become Insolvent, Trustee shall
determine whether Company is Insolvent and, pending such
determination, Trustee shall discontinue any transfers and
distributions of Trust Options (and the proceeds thereon) to
Participants. Trustee, at the expense of Company, may engage outside
counsel or consultants to make such determination.
(2) Unless Trustee has actual knowledge of
Company's Insolvency, or has received notice from Company or a person
claiming to be a creditor alleging that Company is Insolvent, Trustee
shall have no duty to inquire whether Company is Insolvent. Trustee
may in all events rely on such evidence concerning Company's solvency
as may be furnished to Trustee and that provides Trustee with a
reasonable basis for making a determination concerning Company's
solvency.
(3) If at any time Trustee has determined that
Company is Insolvent, Trustee shall discontinue the transfer and
distribution of Trust Options (and proceeds thereon) to Participants
and shall hold the assets of the Trust for the benefit of Company's
general creditors. Nothing in this Agreement shall in any way
diminish any rights of Participants to pursue their rights as general
creditors of Company with respect to any transfers or distributions of
Trust Options (and proceeds thereon) due hereunder. Without limiting
the generality of any other provisions herein, Company shall defend,
indemnify and hold Trustee harmless from and against any and all
claims of Participants or creditors regarding any Insolvency
determinations.
(4) Trustee shall resume the transfer and
distribution of the Trust Options (and proceeds thereon) to
Participants in accordance with Section 2 of this Agreement only after
Trustee has determined that Company is not Insolvent (or is no longer
Insolvent).
(c) Provided that there are sufficient assets, if Trustee
discontinues the transfer and distribution of the Trust Options (and proceeds
thereon) from the Trust pursuant to Section 3(b) hereof and subsequently
resumes such transfers and distributions, the first transfer and distribution
following such discontinuance shall include the
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aggregate amount of all transfers and distributions due to Participants under
the terms of the Transfer Schedule for the period of such discontinuance, less
the aggregate amount of any distributions made to Participants or their
beneficiaries by Company in lieu of the transfers and distributions provided
for hereunder during any such period of discontinuance.
Section 4. Payments to Company.
Except as provided in Section 3 hereof, the Plan or pursuant
to the terms of a Trust Option, Company shall have no right or power to direct
Trustee to return to Company or to divert to others any of the Trust assets
before all transfers and distributions of the Trust Options (and proceeds
thereon) have been made to Participants pursuant to the terms of the Transfer
Schedule.
Section 5. Custodial Authority.
Trustee shall hold its rights with respect to the Trust
Options and any proceeds thereon as assets of the Trust. All rights associated
with assets of the Trust shall be exercised by Trustee or the person designated
by Trustee, and shall in no event be exercisable by or rest with Participants.
Section 6. Disposition of Income.
During the term of the Trust, all income received by the
Trust, net of any expenses and taxes not paid by Company in accordance with
Section 9 below, shall be accumulated.
Section 7. Accounting by Trustee.
Trustee shall keep accurate and detailed records of all
transactions required to be made including such specific records as shall be
agreed upon in writing between Company and Trustee. Trustee shall also
maintain records for each Trust Option that indicates the corresponding number
of Units allocated to (or forfeited by) each Participant. Trustee may request
Company's assistance in the preparation and maintenance of such records and
Company
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shall bear all reasonable costs and expenses incurred by the Trustee in
connection with the performance of its duties under this Section 7.
Section 8. Responsibility of Trustee.
(a) Trustee shall act with the care, skill, prudence and
diligence under the circumstances then prevailing that a prudent person acting
in like capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims; provided, however, that
Trustee shall incur no liability to any person for any action taken in good
faith pursuant to a direction, request or approval given by Company which is
contemplated by, and in conformity with, the Transfer Schedule or this
Agreement and is given in writing by Company. In the event of a dispute
between Company and a party, Trustee may apply to a court of competent
jurisdiction to resolve the dispute.
(b) If Trustee undertakes or defends any claims or litigation
(including mediation and arbitration) arising in connection with the Trust,
Company agrees to indemnify Trustee against Trustee's costs, expenses and
liabilities (including, without limitation, reasonable attorneys' fees and
expenses) relating thereto and to be primarily liable for and, at Trustee's
request, to advance such payments; provided, however, that Company shall not be
liable for any costs, expenses and liabilities that are attributable to
Trustee's gross negligence or intentional misconduct (and Company may recover
any advances made relating thereto).
(c) Trustee may consult with legal counsel (who may also be
counsel for Company generally) with respect to any of its duties or obligations
hereunder and may absolutely rely on the advice of such counsel.
(d) Trustee shall have, without exclusion, all powers
conferred on trustees by applicable law, unless expressly provided otherwise
herein.
(e) If at any time during the existence of the Trust there
shall be more than one person or entity who or which collectively shall be
acting as Trustee hereunder: (i) any action authorized by this Agreement or by
applicable law may be taken by any one of such persons or entities acting
alone; and (ii) the death, incapacity, bankruptcy, liquidation or other
dissolution of any one or more of such
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persons or entities shall not deprive any remaining person(s) or entities of
any authority to act hereunder.
(f) Notwithstanding any powers granted to Trustee pursuant to
this Agreement or applicable law, Trustee shall not have any power that could
give the Trust the objective of carrying on a business and dividing the gains
therefrom, within the meaning of section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Internal Revenue Code.
Section 9. Compensation and Expenses of Trustee.
Company shall pay all administrative and Trustee's fees and
expenses, including reasonable fees and expenses of legal counsel.
Section 10. Resignation and Removal of Trustee.
(a) Trustee may resign at any time by written notice to
Company, which shall be effective 60 days after receipt of such notice, unless
Company and Trustee agree otherwise.
(b) Except as provided in paragraph (c) of this Section,
Trustee may be removed by Company on 10 days notice or upon shorter notice
accepted by Trustee.
(c) Upon a Change of Control (as defined in the Option
Plan), Trustee may not be removed by Company for one year following the Change
of Control.
(d) If Trustee resigns or is removed within two years
after a Change of Control, Trustee shall select a successor Trustee in
accordance with the provisions of Section 11(b) hereof prior to the effective
date of Trustee's resignation or removal.
(e) Upon resignation or removal of Trustee and appointment of
a successor Trustee, all assets shall subsequently be transferred to the
successor Trustee. The transfer shall be completed within 30 days after
receipt of notice of resignation, unless Company extends the time limit.
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(f) If Trustee resigns or is removed, a successor shall be
appointed, in accordance with Section 11 hereof, by the effective date of
resignation or removal under paragraph (a) or (b) of this Section. If no such
appointment has been made, Trustee may apply to a court of competent
jurisdiction for appointment of a successor or for instructions. All expenses
of Trustee in connection with the proceeding shall be paid by Company.
Section 11. Appointment of Successor.
(a) If Trustee resigns or is removed in accordance with
Section 10(a) or (b) hereof, and Section 10(d) hereof does not apply, Company
may appoint as a successor Trustee any third party, such as a bank trust
department or other party that may be granted corporate trustee powers under
state law, or an individual.
(b) If Trustee resigns or is removed pursuant to the
provisions of Section 10(d) hereof and selects a successor Trustee, Trustee may
appoint as a successor Trustee any third party, such as a bank trust department
or other party that may be granted corporate trustee powers under state law, or
an individual.
(c) The appointment of a successor Trustee shall be
effective when accepted in writing by the new Trustee, who shall have all of
the rights and powers of the former Trustee, including ownership rights in the
Trust assets. The former Trustee shall execute any instrument necessary or
reasonably requested by the successor Trustee to evidence the transfer.
Section 12. Amendment or Termination.
(a) This Agreement may be amended by a written instrument
executed by Trustee and Company. Notwithstanding the foregoing, no such
amendment shall conflict with the terms of any Transfer Schedule delivered to
the Trustee, modify Section 2(a) hereof or make the Trust revocable.
(b) The Trust shall terminate on the earlier of (i) June 4,
2006, (ii) 90 days after the consummation of an Initial Public offering (as
defined in the Option Plan), (iii) upon a Change in Control (as defined in the
Option Plan) if there is an acceleration of vesting and
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exercisability of the Trust Options that relate to the Change of Control, or
(iv) at such other time as Company, in its sole discretion, determines and
notifies Trustee. Upon termination of the Trust, any assets remaining in the
Trust after the transfer and distribution of Trust Options (and the proceeds
thereof) to Participants shall be returned to Company.
Section 13. Miscellaneous.
(a) Any provision of this Agreement prohibited by law shall
be ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
(b) Trust Options may not be anticipated, assigned (either at
law or in equity), alienated, pledged, encumbered or subjected to attachment,
garnishment, levy, execution or other legal or equitable process, except by
Trustee as expressly contemplated herein.
(c) Trustee shall execute, on behalf of the Trust, such
documentation as may be reasonably necessary to effect the transactions
described herein.
(d) In the event of a conflict or inconsistency between
the terms of this Agreement and the terms of the Option Plan, the terms of the
Option Plan shall be controlling; provided, however, that the terms of Section
3 of this Agreement shall be controlling over any conflicting terms of the
Option Plan.
(e) This Agreement shall be governed and construed in
accordance with the laws of the State of Texas.
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Section 14. Effective Date.
The effective date of this Trust Agreement shall be June 4,
1998.
HOME INTERIORS & GIFTS, INC.
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By: Donald J. Carter, Jr.
Title: Chief Executive Officer
TRUSTEE
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Jeffrey Fink
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Exhibit I to Stock Option Trust
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TRUST OPTION UNDER
HOME INTERIORS & GIFTS, INC.
1998 STOCK OPTION PLAN
The Board of Directors of Home Interiors & Gifts, Inc. (the
"Company") has adopted the Company's 1998 Stock Option Plan for Unit Directors,
Branch Directors and Certain Other Independent Contractors (the "Plan"). The
Plan shall be deemed a part of this Option Agreement as if fully set forth
herein. Unless the context otherwise requires, all terms defined in the Plan
shall have the same meaning when used herein.
1. The Grant.
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Subject to the conditions set forth below, the Company hereby
grants to the Company's 1998 Stock Option Trust (the "Trust"), effective as of
June 4, 1998 (the "Grant Date"), the right and option to purchase (the "Trust
Option"), in accordance with the terms and conditions set forth herein and in
the Plan, an aggregate of 233,511 shares of Common Stock (the "Option Shares"),
at an exercise price equal to $18.05451 per share (the "Exercise Price"),
subject to the adjustments and limitations set forth herein and in the Plan.
2. Exercise.
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(a) This Option is not exercisable by the trustee of the Trust
(the "Trustee"), and, subject to the relevant provisions and limitations
contained herein and in the Plan, may only be exercised by a Participant who has
received a distribution and transfer of a divided portion of the Trust Option,
as described in the Plan. The Trustee shall divide, distribute and transfer the
Trust Option to Participants at the time and in the manner described in the
Trust, after which they shall be evidenced by an agreement that is substantially
in the form of Exhibit A attached hereto (a "Participant Option"). The Company
acknowledges that Participant Options shall be enforceable against the Company
when properly transferred and executed by the Trustee.
(b) Any portion of the Trust Option that has not been
transferred to a Participant will automatically terminate and become null and
void upon the expiration of
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ten (10) years from the Grant Date. Any portion of the Trust Option that is
attributable to an award of a Unit that has been forfeited or cancelled shall
also terminate and become null and void as of the date of such forfeiture or
cancellation.
3. Transferability.
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Except as provided in the Trust, the Plan and Section 2
hereof, the Trust Option and any rights or interests therein are not assignable
or transferable.
4. Withholding Taxes.
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By acceptance of the Option, the Trustee will be deemed to
consent to the withholding by the Company for any federal, state or local taxes
required by any government to be withheld or otherwise deducted by the Company
in respect of the payment to the Trust of any Cash Out Amount.
5. Cash Outs.
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Upon the occurrence of a Cash Out Event, the Company may
elect, in its sole discretion, to cancel each outstanding Trust Option in
exchange for the Cash Out Amount. In such event, the Cash Out Amount (less any
required tax withholdings) shall be distributed to Participants in accordance
with the terms of the Plan and the Trust.
6. Miscellaneous.
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(a) This Option Agreement is subject to all the terms,
conditions, limitations and restrictions contained in the Plan. In the event of
any conflict or inconsistency between the terms hereof and the terms of the
Plan, the terms of the Plan shall be controlling.
(b) This Option Agreement is not a contract to maintain a
business relationship between the Company and any Participant, and the terms of
any such business relationship shall not be affected by, or construed to be
affected by, this Option Agreement, except to the extent specifically provided
herein. Nothing herein shall impose, or be construed as imposing, any obligation
(i) on the part of the Company to continue any business relationship with a
Participant, or (ii) on the part of the Participant to remain in any business
relationship with the Company.
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The Trust's acceptance of all the terms and conditions of this
Trust Option and the Plan shall be evidenced by the Trustee's signature under
the acceptance provided below.
HOME INTERIORS & GIFTS, INC.
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By: Donald J. Carter, Jr.
Title: Chief Executive Officer
ACCEPTED:
TRUSTEE OF THE
HOME INTERIORS & GIFTS, INC.
1998 STOCK OPTION TRUST
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Jeffrey Fink
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EXHIBIT A TO TRUST OPTION
PARTICIPANT OPTION UNDER
HOME INTERIORS & GIFTS, INC.
1998 STOCK OPTION PLAN
The Board of Directors of Home Interiors & Gifts, Inc. (the
"Company") has adopted the Company 1998 Stock Option Plan for Certain Unit
Directors, Branch Directors and Certain Other Independent Contractors (the
"Plan"). Pursuant to the terms of the Plan, the Company has granted an option to
the Company's 1998 Stock Option Trust as of June 4, 1998 (the "Grant Date"), a
portion of which is being distributed and transferred to you by the trustee of
such Trust (the "Trustee") pursuant to this Option Agreement. A copy of the Plan
is being furnished to you concurrently with the execution of this Option
Agreement and shall be deemed a part of this Option Agreement as if fully set
forth herein. Unless the context otherwise requires, all terms defined in the
Plan shall have the same meaning when used herein.
1. The Transfer.
Subject to the conditions set forth below, the Trustee hereby
transfers to you, effective as of ______________ (the "Transfer Date"), the
right and option to purchase (the "Option"), in accordance with the terms and
conditions set forth herein and in the Plan, an aggregate of _____________
shares of Common Stock (the "Option Shares"), at an exercise price equal to
$18.05451 per share (the "Exercise Price"), subject to the adjustments and
limitations set forth herein and in the Plan. The Option transferred hereunder
is not intended to be taxable to you upon its transfer; however, you should
consult with your tax advisor concerning the proper reporting of any federal or
state tax liability that may arise as a result of your receipt or exercise of
the Option.
2. Exercise.
(a) You may exercise the Option to purchase all or a portion
of the Optioned Shares after the Option has become vested and exercisable in
accordance with the terms of the Plan.
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(b) The unexercised portion of the Option, if any, will
automatically, and without notice, terminate and become null and void upon the
expiration of ten (10) years from the Grant Date or in the event the Option is
otherwise cancelled or forfeited by you pursuant to the terms of the Plan.
(c) Any exercise by you of the Option shall be in writing
addressed to the Secretary of the Company at its principal place of business (a
copy of the form of exercise to be used will be available upon written request
to the Secretary), and shall be accompanied by a certified or bank check payable
to the order of the Company in the full amount of the Exercise Price of the
shares so purchased, or in such other manner approved by the Committee.
3. Transferability.
The Option and any rights or interests therein are not
assignable or transferable by you except by will or the laws of descent and
distribution, and during your lifetime, the Option shall be exercisable only by
you or, in the event that a legal representative has been appointed in
connection with your disability, such legal representative.
4. Registration.
The Company shall not in any event be obligated to file any
registration statement under the Securities Act or any applicable state
securities laws to permit exercise of the Option, or be obligated to issue any
Common Stock in violation of the Securities Act or any applicable state
securities laws. You (or in the event of your death or, in the event a legal
representative has been appointed in connection with your disability, the Person
exercising the Option) shall, as a condition to your right to exercise the
Option, deliver to the Company an agreement or certificate containing such
representations, warranties and covenants as the Company may deem necessary or
appropriate to ensure that the issuance of the Option Shares pursuant to such
exercise is not required to be registered under the Securities Act or any
applicable state securities laws.
Certificates for Option Shares, when issued, shall have
substantially the following legend, or statements of other applicable
restrictions, endorsed thereon, and may not be immediately transferable:
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THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR ANY STATE SECURITIES LAWS. THE SHARES MAY NOT BE OFFERED
FOR SALE, SOLD, PLEDGED, TRANSFERRED OR OTHERWISE DISPOSED OF
UNTIL THE HOLDER HEREOF PROVIDES EVIDENCE SATISFACTORY TO THE
ISSUER (WHICH, IN THE DISCRETION OF THE ISSUER, MAY INCLUDE AN
OPINION OF COUNSEL SATISFACTORY TO THE ISSUER) THAT SUCH
OFFER, SALE, PLEDGE, TRANSFER OR OTHER DISPOSITION WILL NOT
VIOLATE APPLICABLE FEDERAL OR STATE LAWS.
The foregoing legend may not be required for Option Shares
issued pursuant to an effective registration statement under the Securities Act
and in accordance with applicable state securities laws.
5. Withholding Taxes.
By acceptance hereof, you hereby (i) agree to reimburse the
Company for any federal, state or local taxes required by any government to be
withheld or otherwise deducted by the Company in respect of your exercise of all
or a portion of the Option; (ii) authorize the Company to withhold from any cash
compensation paid to you or on your behalf, an amount sufficient to discharge
any federal, state and local taxes imposed on the Company, and which otherwise
has not been reimbursed by you, in respect of your exercise of all or a portion
of the Option; and (iii) agree that the Company may, in its discretion, hold the
stock certificate to which you are entitled upon exercise of the Option as
security for the payment of the aforementioned withholding tax liability, until
cash sufficient to pay that liability has been accumulated, and may, in its
discretion, effect such withholding by retaining shares issuable upon the
exercise of the Option having a Fair Market Value on the date of exercise which
is no less than the amount to be withheld.
6. Miscellaneous.
(a) This Option Agreement is subject to all the terms,
conditions, limitations and restrictions contained in the Plan. In the event of
any conflict or inconsistency between the terms hereof and the terms of the
Plan, the terms of the Plan shall be controlling.
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(b) This Option Agreement is not a contract to continue any
business relationship between you and the Company, and the terms of your
business relationship with the Company shall not be affected by, or construed to
be affected by, this Option Agreement, except to the extent specifically
provided herein. Nothing herein shall impose, or be construed as imposing, any
obligation (i) on the part of the Company to continue your business relationship
with the Company, or (ii) on your part to continue your business relationship
with the Company.
Please indicate your acceptance of the transfer of your
allocable share of the Trust Option and all the terms and conditions of the
Option and the Plan by signing and returning a copy of this Option Agreement to
the Secretary of the Company.
Very truly yours,
HOME INTERIORS & GIFTS
1998 STOCK OPTION TRUST
By:
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Its: Trustee
ACCEPTED:
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Signature of Optionee
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Name of Optionee (Please Print)
Date:
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