EXHIBIT 99.12
1-800-FLOWERS, INC.
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT (the "Agreement"), dated as of 1998, between
1-800-FLOWERS, INC., a Delaware corporation (the "Company"), having an address
at 1600 Stewart Avenue, Garden City, New York 11590 and [___], having an address
at [___] (the "Grantee").
In accordance with the 1-800-Flowers, Inc. 1997 Stock Option Plan
(the "Plan"), the Company hereby grants to the Grantee an incentive stock option
(the "Option") to purchase all or any part of an aggregate of [___] shares of
the Company's Class B common shares, $.01 par value per share (the "Shares").
To evidence the Option and to set forth its terms, the Company and
the Grantee agree as follows:
1. Confirmation of Grant. The Company hereby evidences and confirms
its grant of the Option to the Grantee on the date of this Agreement.
2. Number of Shares. This Option shall be for an aggregate of [____]
Shares.
3. Exercise Price. The exercise price shall be [$___] per share for
a total of [$____].
4. Medium and Time of Payment. The exercise price of the Option
shall be paid in cash or by check payable to the order of the Company at the
time of exercise. In addition, the Company shall accept full or partial payment
in Shares having a fair market value on the date of exercise equal to the
portion of the exercise price being so paid.
Payment in full for Shares purchased pursuant to an exercise shall
be required before the issuance of stock certificates evidencing Shares in
respect of which the Option shall have been exercised.
5. Term and Exercise of the Option. The Option shall expire ten
years from the date of this Agreement and may be exercised, in whole or in
increments, in accordance with the following schedule:
On or After This Option Shall be Exercisable as to:
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(i) 2000 25% of the Shares
(ii) 2001 an additional 25% of the Shares
(iii) 2002 an additional 25% of the Shares
(iv) 2003 an additional 25% of the Shares
This Option may be exercised only by written notice to the Company
indicating the number of Shares which are being purchased. Such notice must be
signed by the Grantee and be accompanied by full payment of the exercise price.
6. Nontransferability. The Option may be transferred only by will or
the laws of descent and distribution, and the Option may be exercised during the
Grantee's lifetime only by the Grantee (or by the Grantee's legal representative
under the circumstances described in Section 7 hereof).
7. Rights in the Event of the Grantee's Disability. If the Grantee's
employment with the Company and any parent or subsidiary corporation (within the
meaning of Section 424(e) and (f) of the Internal Revenue Code of 1986, as
amended (the "Code"), ("Affiliates")) is terminated on account of permanent and
total disability (as defined in Code Section 22(e)(3)), the Grantee or the
Grantee's legal representative (or the Grantee's estate if the Grantee dies
after termination of employment) may exercise the Option, to the extent
exercisable on the date of the Grantee's termination of employment, at any time
within one year after termination of employment but in no event after the
expiration of the term of the Option. The Grantee's "estate" means the Grantee's
legal representative or any person who acquires the right to exercise the Option
by reason of the Grantee's death.
8. Rights in the Event of the Grantee's Death. If the Grantee dies
while an employee of the Company or any Affiliate but while he or she still has
the right to exercise this Option, his or her estate may exercise the Option, to
the extent exercisable at the date of the Grantee's death, any time within one
year after the Grantee's death, but in no event after the expiration of the term
of the Option.
9. Rights in the Event of Termination of Employment. If Grantee's
employment with the Company and any Affiliate is terminated for any other reason
(other than Retirement) the Grantee's Option, whether or not exercisable on the
date of termination, shall expire as of the date of termination of employment.
If Grantee's employment with the Company and any Affiliate is terminated as a
result of the Grantee's Retirement (as such term is defined in the Plan), the
Option shall expire within three (3) months from the date of termination due to
such Retirement.
10. Right of First Refusal.
(a) The Shares acquired pursuant to the exercise of this
Option may be sold by the Grantee only in compliance with the provisions of this
Section 10, and subject in all cases to compliance with the provisions of
Section 12(b) hereof. Prior to any intended sale, Grantee shall first give
written notice (the "Offer Notice") to the Company specifying (i) his or her
bona fide intention to sell or otherwise transfer such Shares, (ii) the name and
address of the proposed purchaser(s), (iii) the number of Shares the Grantee
proposes to sell (the "Offered Shares"), (iv) the price for which he or she
proposes to sell the Offered Shares, and (v) all other material terms and
conditions of the proposed sale.
(b) Within 30 days after receipt of the Offer Notice, the
Company or its nominee(s) may elect to purchase all or any portion of the
Offered Shares at the price and on the
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terms and conditions set forth in the Offer Notice by delivery of written notice
(the "Acceptance Notice") to the Grantee specifying the number of Offered Shares
that the Company or its nominees elect to purchase. Within 15 days after
delivery of the Acceptance Notice to the Grantee, the Company and/or its
nominee(s) shall deliver to the Grantee a check in the amount of the purchase
price of the Offered Shares to be purchased pursuant to this Section 10, against
delivery by the Grantee of a certificate or certificates representing the
Offered Shares to be purchased, duly endorsed for transfer to the Company or
such nominee(s), as the case may be. However, (i) should the purchase price
specified in the Offered Notice be payable in property other than cash or
evidences of indebtedness, the Company or its nominee(s) shall have the right to
pay the purchase price in the form of cash equal in amount to the value of such
property (the "Cash Value") (which Cash Value shall be determined below) and
(ii) if there is no purchase price for the intended disposition, the Company or
its nominee(s) shall have the right to purchase for cash any or all of the
Offered Shares for a purchase price equal to the Fair Market Value (as defined
in Section 6(a) of the Plan) of the Offered Shares as determined in the manner
prescribed in Section 6(a) of the Plan. If the Grantee and the Company or its
nominee(s) cannot agree on the Cash Value within ten (10) days after the
Company's receipt of the Offer Notice, the valuation shall be made by an
appraiser of recognized standing selected by the Grantee and the Company or its
nominee(s) or, if they cannot agree on an appraiser within ten (10) days after
the Company's receipt of such notice, each shall select an appraiser of
recognized standing and the two appraisers shall designate a third appraiser of
recognized standing, whose appraisal shall be determinative of such value.
(c) If the Company and/or its nominee(s) do not elect to
purchase all of the Offered Shares, the Grantee shall be entitled to sell the
balance of the Offered Shares to the purchaser(s) named in the Offer Notice at
the price specified in the Offer Notice or at a higher price and on the terms
and conditions set forth in the Offer Notice; provided, however, that any such
sale or disposition must not be effected in contravention of the representations
made by the Grantee in Section 12 of this Agreement. Such sale or other transfer
must be consummated within 60 days from the date of the Offer Notice and any
proposed sale after such 60-day period may be made only by again complying with
the procedures set forth in this Section 10.
(d) The Grantee may transfer all or any portion of the Shares
to a trust established for the sole benefit of the Grantee and/or his or her
spouse or children without such transfer being subject to the right of first
refusal set forth in this Section 10, provided that the Shares so transferred
shall remain subject to the terms and conditions of this Agreement and no
further transfer of such Shares may be made without complying with the
provisions of this Section 10.
(e) Any successor to a Grantee pursuant to Section 8 hereof,
and any transferee of the Shares pursuant to this Section 10, shall hold the
Shares subject to the terms and conditions of this Agreement and no further
transfer of the Shares may be made without complying with the provisions of this
Section 10.
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11. Call Option.
(a) In the event of termination of Grantee's employment with
the Company and its Affiliates for any reason, including, without limitation,
death or permanent and total disability, Retirement, termination with cause,
voluntary termination or involuntary termination without cause (or in the event
Grantee is a transferee if there is a termination of the original Grantee's
employment with the Company and its Affiliates), the Company shall have the
right to purchase for cash all or any portion of the Shares held by Grantee
("Call Option"). The Company shall have the right to assign its rights in whole
or in part under this Section 11.
(b) The Company may purchase for cash all or any portion of
such Shares at a per Share price equal to the Fair Market Value (as defined in
Section 6(a) of the Plan) of the Shares as of the date of termination of the
Grantee's employment, which value shall be determined in the manner prescribed
in Section 6(a) of the Plan.
(c) Any Call Option may be exercised by delivery of written
notice thereof (the "Call Notice") to Grantee within sixty (60) days following
the later of (i) the date of termination at Grantee's employment with the
Company and its Affiliates, or (ii) the date on which the Grantee or his estate
exercises any option to which the Shares relate (the "Call Option Exercise
Period"). The Call Notice shall state that the Company has elected to exercise
the Call Option, and the number and price of the Shares with respect to which
the Call Option is being exercised.
(d) The closing of any purchase of Shares pursuant to the
exercise of the Call Option pursuant to this Section 11 shall take place as soon
as reasonably practical and in no event later than thirty (30) days after
termination of the applicable Call Option Exercise Period at the principal
office of the Company, or at such other time and location as the parties to such
purchase may mutually determine. At the closing of any purchase and sale of
Shares pursuant this Section 11, Grantee shall deliver to the Company a
certificate or certificates representing the Shares to be purchased by the
Company duly endorsed, or with stock powers duly endorsed, for transfer with
signature guaranteed, free and clear of any lien or encumbrance, with any
necessary stock transfer tax stamps affixed, and the Company shall pay to
Grantee the purchase price of the Shares being purchased by the Company. The
delivery of a certificate or certificates for Shares by Grantee pursuant to this
Section 11 shall be deemed a representation and warranty by Grantee that: (i)
Grantee has full right, title and interest in and to such Shares; (ii) Grantee
has all necessary power and authority and has taken all necessary action to sell
such Shares as contemplated; and (iii) such Shares are free and clear of any and
all liens or encumbrances.
12. Representations and Warranties of Grantee.
(a) Grantee represents and warrants that this Option is being
acquired by Grantee for Grantee's personal account, for investment purposes
only, and not with a view to the distribution, resale or other disposition
thereof.
(b) Grantee acknowledges that the Company may issue Shares
upon the exercise of the Option without registering such Shares under the
Securities Act of 1933, as amended (the "Act"), on the basis of certain
exemptions from such registration requirement. Accordingly, Grantee agrees that
his or her exercise of the Option may be expressly conditioned upon his or her
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delivery to the Company of an investment certificate including such
representations and undertakings as the Company may reasonably require in order
to assure the availability of such exemptions, including a representation that
Grantee is acquiring the Shares for investment and not with a present intention
of selling or otherwise disposing thereof and an agreement by Grantee that the
certificates evidencing the Shares may bear a legend indicating such
non-registration under the Act and the resulting restrictions on transfer.
Grantee acknowledges that, because Shares received upon exercise of an Option
may be unregistered, Grantee may be required to hold the Shares indefinitely
unless they are subsequently registered for resale under the Act or an exemption
from such registration is available.
(c) Grantee acknowledges receipt of a copy of the Plan and
understands that all rights and obligations connected with this Option are set
forth in this Agreement and in the Plan. Grantee hereby agrees to accept as
binding, conclusive and final all decisions of the Board of Directors of the
Company or the Committee (as such term is defined in the Plan), upon any
questions arising under the Plan.
(d) Grantee hereby acknowledges that, in addition to certain
restrictive legends that the securities laws of the state in which Optionee
resides may require, each certificate representing the Shares may be endorsed
with the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933; THEY HAVE BEEN ACQUIRED
BY THE HOLDER FOR INVESTMENT AND MAY NOT BE PLEDGED, HYPOTHECATED,
SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF EXCEPT AS MAY BE
AUTHORIZED UNDER THE SECURITIES ACT OF 1933, AND THE RULES AND
REGULATIONS PROMULGATED THEREUNDER.
13. Adjustment in the Shares. If the Shares, as presently
constituted, shall be changed into or exchanged for a different number or kind
of shares or other securities of the Company or of another corporation (whether
by reason of merger, consolidation, recapitalization, reclassification, split,
reverse split, combination of shares, or otherwise) or if the number of Shares
shall be increased through the payment of a share dividend, the Grantee shall
receive upon exercise of the Option the number and kind of shares or other
securities into which each outstanding Share shall be so changed, or for which
each such Share shall be exchanged, or to which each such Share shall be
entitled, as the case may be. The exercise price and other terms of the Option
shall be appropriately amended to reflect the foregoing events. If there shall
be any other change in the number or kind of the outstanding Shares, or of any
shares or other securities into which the Shares shall have been changed, or for
which the Shares shall have been exchanged, then, if the Board of Directors
shall, in its sole discretion, determine that such change equitably requires an
adjustment in the Option, such adjustment shall be made in accordance with that
determination. Notice of any adjustment shall be given by the Company to the
Grantee.
14. Restrictive Legend. The stock certificates for the Shares
purchased pursuant to this Agreement shall be endorsed with the following
legend:
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THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD,
ASSIGNED, TRANSFERRED, PLEDGED OR ENCUMBERED, EXCEPT IN CONFORMITY
WITH THE TERMS OF AN OPTION AGREEMENT BETWEEN THE COMPANY AND THE
REGISTERED HOLDER OF THE SHARES (OR HIS PREDECESSOR IN INTEREST).
SUCH AGREEMENT GRANTS (A) CERTAIN RIGHTS OF FIRST REFUSAL TO THE
COMPANY (OR ITS NOMINEE(S)) UPON THE SALE, ASSIGNMENT, TRANSFER,
PLEDGE OR ENCUMBRANCE OF THE SHARES; AND (B) CERTAIN CALL OPTIONS. A
COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE
COMPANY.
15. Stop-Transfer Notices.
Grantee understands and agrees that, in order to ensure
compliance with the restrictions referred to herein, the Company may issue
appropriate "stop-transfer" instructions to its transfer agent, if any, and
that, if the Company transfers its own securities, it may make appropriate
notations to the same effect in its own records.
16. Effect of Termination or Amendment of Plan. No suspension,
termination, modification, or amendment of the Plan may, without the express
written consent of the Grantee, adversely affect the rights of the Grantee under
this Option.
17. No Limitation on Rights of the Company. The grant of this Option
shall not in any way affect the right or power of the Company to make
adjustments, reclassifications, or changes in its capital or business structure
or to merge, consolidate, dissolve, liquidate, sell, or transfer all or any part
of its business or assets.
18. Rights as a Shareholder. The Grantee shall have the rights of a
shareholder with respect to the Shares covered by the Option only upon becoming
the holder of record of those Shares.
19. Compliance with Applicable Law. Notwithstanding anything herein
to the contrary, the Company shall not be obligated to cause to be issued or
delivered any certificates for Shares pursuant to the exercise of the Option,
unless and until the Company is advised by its counsel that the issuance and
delivery of such certificates is in compliance with all applicable laws,
regulations of governmental authority, and the requirements of any exchange upon
which Shares are traded. The Company shall in no event be obligated to register
any securities pursuant to the Securities Act of 1933 (as now in effect or as
hereafter amended) or to take any other action in order to cause the issuance
and delivery of such certificates to comply with any such law, regulation or
requirement. The Board of Directors may require, as a condition of the issuance
and delivery of such certificates and in order to ensure compliance with such
laws, regulations, and requirements, that the Grantee make such covenants,
agreements, and representations as the Board of Directors, in its sole
discretion, considers necessary or desirable.
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20. No Obligation to Exercise Option. The granting of the Option
shall impose no obligation upon the Grantee to exercise the Option.
21. Agreement Not a Contract of Employment. This Agreement is not a
contract of employment, and the terms of employment of the Grantee or the
relationship of the Grantee with the Company or any Affiliate shall not be
affected in any way by this Agreement except as specifically provided herein.
The execution of this Agreement shall not be construed as conferring any legal
rights upon the Grantee for a continuation of employment or relationship with
the Company or any Affiliate, nor shall it interfere with the right of the
Company or any subsidiary thereof to discharge the Grantee and to treat him or
her without regard to the effect which that treatment might have upon him or her
as a Grantee.
22. Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally or sent by
certified, registered, or express mail, postage prepaid. Any such notice shall
be deemed given when so delivered personally or, if mailed, four days after the
date of deposit in the United States mails, to each party at its address set
forth above or to such other address as may be designated in a notice given in
accordance with this Section.
23. Governing Law. Except to the extent preempted by Federal law,
this Agreement shall be construed and enforced in accordance with, and governed
by, Delaware law.
24. Attorneys' Fees. In the event of any litigation concerning any
controversy, claim or dispute between the parties hereto, arising out of or
relating to this Agreement or the breach hereof, or the interpretation hereof,
the prevailing party shall be entitled to recover from the losing party
reasonable expenses, attorney fees and costs incurred therein or in the
enforcement or collection of any judgment or award rendered therein. The
"prevailing party" means the party determined by the court to have most nearly
prevailed, even if such party did not prevail in all matters, not necessarily
the one in whose favor a judgment is rendered.
IN WITNESS WHEREOF, the Company and the Grantee have duly executed
this Agreement as of the date first written above.
1-800-FLOWERS, INC.
By:
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Witness James F. McCann
President
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Witness [Grantee]
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