1
EXHIBIT 10.30
MAC FRUGAL'S BARGAINS o CLOSE-OUTS INC.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "Agreement") is made and
entered into as of the Date of Grant indicated below by and between MacFrugal's
Bargains o Close-outs Inc., a Delaware corporation (the "Company"), and
_________ ("Optionee").
WHEREAS, the Compensation Committee of the Board of Directors
of the Company (the "Committee") and the Board of Directors of the Company (the
"Board") have approved the grant to Optionee of an option to purchase shares of
the common stock, par value $0.2778 per share, of the Company (the "Common
Stock"), on the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
1. Grant of Option; Certain Terms and Conditions.
Subject to and upon all of the terms and conditions of this Agreement, the
Company hereby grants to Optionee, and Optionee hereby accepts, as of the Date
of Grant set forth below, an option (the "Option") to purchase the number of
shares of Common Stock indicated below (the "Option Shares") at the exercise
price per share indicated below. The Exercise Price indicated below is the
closing price for shares of the Common Stock quoted on the New York Stock
Exchange on the Date of Grant. Unless the Option earlier terminates as
provided in this Agreement, the Option expires at 5:00 p.m. (local time at the
Company's executive offices) on the Expiration Date indicated below.
Notwithstanding anything else contained in this Agreement to the contrary with
the sole exception of Paragraph 2(b) below to which this sentence is subject,
the Option shall not vest and/or become exercisable with respect to any Option
Shares whatsoever until the third (3rd) anniversary of the Date of Grant at
which time the Option shall vest in full and become exercisable with respect to
all Option Shares but only if Optionee is a member of the Board on the third
(3rd) anniversary of the Date of Grant.
Date of Grant: ______________
Option Shares: 50,000
2
Exercise Price per Share: $_____
Expiration Date: ______________
The Option is not intended to qualify as an incentive stock option under the
Internal Revenue Code of 1986, as amended.
2. Acceleration and Termination.
(a) Termination of Position. The Option shall
automatically and immediately terminate in the event Optionee's relationship
with the Company as a member of its Board terminates prior to the third (3rd)
anniversary of the Date of Grant for no reason or for any reason. If
Optionee's relationship with the Company as a member of its Board is terminated
on or subsequent to the third (3rd) anniversary of the Date of Grant for no
reason or for any reason, then the Option shall terminate upon the earlier of
the Expiration Date or the close of business on the ninetieth (90th) day
following the date of such termination; provided, however, that (i) if the
termination of such relationship is caused by the total disability of Optionee,
then the Option shall terminate upon the earlier of the Expiration Date or the
first anniversary of the date of such termination; and (ii) if the termination
of such relationship is caused by the death of Optionee, then the Option shall
terminate upon the earlier of the Expiration Date or the first anniversary of
the date of such death. Notwithstanding the foregoing, the Board may terminate
the Option effective as of the date of such termination if it determines, in
its sole discretion, that such termination was caused, in whole or in part, by
(1) Optionee's refusal to perform his duties, (2) gross or willful misconduct
of Optionee that was materially harmful to the Company or any of its
subsidiaries, or (3) Optionee's conviction of a crime of moral turpitude or a
felony involving personal dishonesty.
(b) Acceleration of Option. Unless the Option
has sooner terminated or expired pursuant to any other provision of this
Agreement, the Option shall fully, immediately and automatically vest and
become exercisable with respect to all Option Shares in the event:
(i) of a reorganization, merger or
2
3
consolidation of the Company as a result of which the outstanding securities of
the class then subject to the Option are exchanged for or converted into cash,
property and/or securities not issued by the Company or by an entity which is
wholly-owned by the Company immediately prior to such transaction; or
(ii) any "person" (as defined in Section
13(d) of the Securities and Exchange Act of 1934, as amended (the "1934 Act"))
becomes the "beneficial owner" (as defined in Rule 13d-3 under the 1934 Act)
directly or indirectly of securities of the Company representing more than
thirty-five percent (35%) of the combined voting power of the Company's then
outstanding securities; or
(iii) of a sale of substantially all of the
property and assets of the Company.
3. Adjustments. In the event that the outstanding
securities of the class then subject to the Option are increased, decreased or
exchanged for or converted into cash, property and/or a different number or
kind of securities, or cash, property and/or securities are distributed in
respect of such outstanding securities, in either case as a result of a
reorganization, merger, consolidation, recapitalization, reclassification,
dividend (other than a cash dividend) or other distribution, stock split,
reverse stock split or the like, or in the event that substantially all of the
property and assets of the Company are sold, then the Board shall make
appropriate and proportionate adjustments in the number and type of shares or
other securities or cash or other property that may thereafter or thereupon be
acquired upon the exercise of the Option; provided, however, that any such
adjustments in the Option shall be made without changing the aggregate Exercise
Price of the then unexercised portion of the Option.
4. Exercise.
(a) Exercise Notice. The Option shall be
exercisable during Optionee's lifetime only by Optionee or by his guardian or
legal representative, and after Optionee's death only by the person or entity
entitled to do so under Optionee's last will and testament or applicable
intestate law. The Option may only be exercised by the delivery to the Company
of a written
3
4
notice of such exercise (the "Exercise Notice"), which Exercise Notice shall
specify the number of Option Shares to be purchased (the "Purchased Shares")
and the aggregate Exercise Price for such shares, together with payment in full
of such aggregate Exercise Price in cash or check payable to the Company.
(b) Regulation T. If Optionee shall deliver to the
Company a duly executed copy of such Exercise Notice and, in accordance with
Section 220.3(e)(4) of Regulation T promulgated under the 1934 Act, a duplicate
copy of duly executed, irrevocable instructions to a broker promptly to deliver
to the Company a specified dollar amount from the proceeds of a sale of or loan
secured by such Purchased Shares, the Company shall promptly confirm to such
broker in writing that the Company shall issue and deliver such Purchased
Shares to the person or entity specified in such Exercise Notice promptly upon
the receipt by the Company of such aggregate Exercise Price in cash or other
immediately available funds.
5. Payment of Withholding Taxes.
(a) If the Company is obligated by law to withhold
any amounts on account of any federal, state or local tax imposed as a result
of the exercise of the Option, including, without limitation, any federal,
state or other income tax or any F.I.C.A., state disability insurance tax or
other employment tax (such amounts being referred to herein collectively as the
"Withholding Liability"), Optionee shall, on the first date upon which the
Company becomes obligated to pay the Withholding Liability to the appropriate
taxing authority (the "Withholding Payment Date") and as a condition precedent
to the issuance of any Option Shares, pay the Withholding Liability to the
Company in full in cash or by check.
(b) The Board may adopt such rules and
regulations as are consistent with and necessary to implement the foregoing.
The Board may permit Optionee to pay Withholding Liability in excess of the
minimum amount required by law, provided that the amount of withholding taxes
so paid does not exceed the estimated total federal, state and local tax
liability of Optionee attributable to such exercise.
6. Stock Exchange Requirements; Applicable Laws.
Notwithstanding anything to the contrary contained in this
4
5
Agreement, no shares of stock purchased upon exercise of the Option, and no
certificate representing all or any part of such shares, shall be issued or
delivered if (a) such shares have not been admitted to listing upon official
notice of issuance on each stock exchange upon which shares of that class are
then listed or (b) in the opinion of counsel to the Company, such issuance or
delivery would cause the Company to be in violation of or to incur liability
under any federal, state or other securities law, or any requirement of any
stock exchange listing agreement to which the Company is a party, or any other
requirement of law or of any administrative or regulatory body having
jurisdiction over the Company.
7. Nontransferability. Neither the Option nor any
interest therein may be sold, assigned, conveyed, gifted, pledged, hypothecated
or otherwise transferred in any manner other than by will or by the laws of
descent and distribution. The designation of a beneficiary shall not
constitute a transfer.
8. Notices. Any notice or communication given pursuant
hereto shall be in writing and delivered personally or by mail, postage
prepaid, addressed to Optionee at his then-current address, as indicated in the
books and records of the Company, or addressed to the Company as follows:
MacFrugal's Bargains o Close-outs Inc.
2430 E. Del Amo Boulevard
Dominguez, CA 90220
Attention: Chief Executive Officer
or at such other address as either party hereto, by written notice to the
other, shall designate from time to time. Any such notice or communication by
Optionee shall be deemed given upon actual receipt by the Company. Any such
notice or communication by the Company, if mailed, shall be deemed given when
mailed.
9. Stockholder Rights. No person or entity shall be
entitled to vote, receive dividends or be deemed for any purpose the holder of
any Option Shares until the Option shall have been duly exercised to purchase
such Option Shares in accordance with the provisions of this Agreement.
10. Rights to Remain a Director. No provision of this
5
6
Agreement or of the Option granted hereunder shall (a) confer upon Optionee any
right to continue his relationship with the Company as a member of the Board,
(b) affect the right of the Company to terminate such relationship of Optionee
with the Company, with or without cause, or (c) confer upon Optionee any right
to participate in any welfare or benefit plan or other program of the Company
or any of its subsidiaries.
11. Applicable Law. This Agreement and the rights of the
parties hereunder shall be governed by and construed and enforced in accordance
with the laws of the State of Delaware without regard to conflict of laws
principles.
IN WITNESS WHEREOF, the Company and Optionee have duly
executed this Agreement as of the Date of Grant.
MacFrugal's Bargains o Close-outs Inc.
By: _________________________
Philip L. Carter
Chief Executive Officer
Optionee
_____________________________
6