OPTION AGREEMENT
THIS OPTION AGREEMENT (this "OPTION AGREEMENT") is made as of February
26, 1998, by and between 99 CENTS Only Stores, a California corporation (the
"COMPANY") and Norman Ravich ("OPTIONEE").
RECITALS
A. The Company proposes to make a tender offer (the "OFFER") to
acquire all of the issued and outstanding shares of Common Stock of Universal
International, Inc., a Minnesota corporation ("UNIVERSAL").
B. In connection with the Offer, Optionee and the Company have entered
into that certain Consulting Agreement of even date herewith, pursuant to
which Optionee has agreed to provide certain consulting services to the
Company as more fully set forth therein, and the Company has agreed to
compensate Optionee for agreeing to provide such consulting services by
entering into this Option Agreement and granting to Optionee the option
contained herein.
C. Optionee and the Company desire to enter into this Option Agreement
to compensate Optionee for agreeing to enter into the Consulting Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing recitals, and the
terms, conditions and covenants contained herein, the Company and Optionee
agree as follows:
1. GRANT OF OPTION. The Company hereby grants to Optionee the right
and option (the "OPTION"), upon the terms and subject to the conditions set
forth in this Option Agreement, to purchase all or any portion of 4,688
shares of the Common Stock of the Company at a per share exercise price of
$40.00 (such shares of Common Stock are collectively referred to herein as
the "SHARES," and such per share exercise prices are collectively referred to
herein as the "EXERCISE PRICE").
2. TERM OF OPTION. The Option shall terminate and expire on the
earlier to occur of (x) that date prior to the commencement of the Offer on
which the Company announces that it has determined not to proceed with the
Offer, (y) that date following the commencement of the Offer but prior to
such time (if any) that the Company actually purchases any shares of the
Common Stock of Universal pursuant to the Offer on which the Offer is
terminated, and (iii) February 19, 2005. Upon request of Optionee, following
the date the Company actually purchases any shares of the Common Stock of
Universal pursuant to the Offer, the Company will issue to Optionee a new
Option Agreement replacing this Option Agreement which will restate this
Section 2 to read as follows: "2. Term of Option. The Option shall
terminate and expire on February 19, 2005."
3. EXERCISE PERIOD. The Option shall become exercisable (in whole or
in part) on first business day following the date that the Company actually
purchases shares of the Common Stock of Universal pursuant to the Offer (the
"Closing"). Upon request of Optionee, following the Closing, the Company
will issue to Optionee a new Option Agreement replacing this Option Agreement
which will restate this Section 3 to read as follows: "The Option is
exercisable (in whole or in part)."
4. EXERCISE OF OPTION. There is no obligation to exercise the Option,
in whole or in part. The Option may be exercised, in whole or in part, only
by delivery to the Company of:
(a) written notice of exercise stating the number of Shares then
being purchased (the "PURCHASED SHARES"); and
(b) payment of the Exercise Price of the Purchased Shares, either
(1) in cash, or (2) by (i) delivery to the Company of other shares of Common
Stock with an aggregate Fair Market Value equal to the total Exercise Price
of the Purchased Shares, (ii) by withholding from the Purchased Shares due
Optionee upon exercise, that number of shares with a Fair Market Value of the
exercise price due; or (iii) in any other form of legal consideration that
may be acceptable to the Board. In the event the Option is exercised for
less than all of the Shares, the Company shall, concurrent with its delivery
of the Purchased Shares, deliver to Optionee a new Option Agreement identical
to this Option Agreement representing the right to purchase that number of
Shares that remain unexercised.
Following receipt of the notice and payment referred to above, the
Company shall issue and deliver to Optionee a stock certificate or stock
certificates evidencing the Purchased Shares; PROVIDED, HOWEVER, that the
Company shall not be obligated to issue a fraction or fractions of a share of
its Common Stock, and may pay to Optionee, in cash or by check, the Fair
Market Value of any fraction or fractions of a share exercised by Optionee.
"FAIR MARKET VALUE" shall be determined as follows: (1) if the Common Stock
is listed on any established stock exchange or a national market system,
including without limitation the Nasdaq National Market, the Fair Market
Value of a share of Common Stock shall be the closing sales price for such
stock (or the closing bid, if no sales were reported) as quoted on such
system or exchange (or the exchange with the greatest volume of trading in
the Common Stock) on the last market trading day prior to the day of
determination, as reported in the Wall Street Journal or such other source as
the Board deems reliable; (2) if the Common Stock is quoted on the Nasdaq
System (but not on the Nasdaq National Market) or is regularly quoted by a
recognized securities dealer but selling prices are not reported, the Fair
Market Value of a share of Common Stock shall be the mean between the bid and
asked prices for the Common Stock on the last market trading day prior to the
day of determination, as reported in the Wall Street Journal or such other
source as the Board deems reliable; and (3) in the absence of an established
market for the Common Stock, the Fair Market Value shall be determined in
good faith by the Board.
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5. ADJUSTMENTS UPON RECAPITALIZATION.
(a) Subject to the provisions of Section 5(b), if any change is
made in the Common Stock, without receipt of consideration by the Company
(through merger, consolidation, reorganization, recapitalization,
reincorporation, stock dividend, dividend in property other than cash, stock
split, liquidating dividend, combination of shares, exchange of shares,
change in corporate structure or other transaction not involving the receipt
of consideration by the Company) the Option will be appropriately adjusted in
the class(es) and number of shares and price per share of stock subject to
the Option. Such adjustments shall be reasonably made by the Board. The
conversion of any convertible securities of the Company shall not be treated
as a "transaction not involving the receipt of consideration by the Company."
(b) In the event of: (1) a dissolution, liquidation or sale of
substantially all of the assets of the Company; (2) a merger or consolidation
in which the Company is not the surviving corporation; or (3) a reverse
merger in which the Company is the surviving corporation but the shares of
the Common Stock outstanding immediately preceding the merger are converted
by virtue of the merger into other property, whether in the form of
securities, cash or otherwise, then, at the sole discretion of the Board and
to the extent permitted by applicable law, the Option shall continue in full
force and effect and, if applicable, the surviving corporation or an
Affiliate of such surviving corporation shall assume the Option and/or shall
substitute similar option or award in place of the Option.
(c) To the extent that the foregoing adjustments relate to stock
or securities of the Company, such adjustments shall be made reasonably by
the Board.
(d) The provisions of this Section 5 are intended to be exclusive,
and Optionee shall have no other rights arising under this Option Agreement
upon the occurrence of any of the events described in this Section 5.
(e) The grant of the Option shall not affect in any way the right
or power of the Company to make adjustments, reclassifications,
reorganizations or changes in its capital or business structure, or to merge,
consolidate, dissolve or liquidate, or to sell or transfer all or any part of
its business or assets.
6. WAIVER OF RIGHTS TO PURCHASE STOCK. By signing this Option
Agreement, Optionee acknowledges and agrees that neither the Company nor any
other person or entity is under any obligation to sell or transfer to
Optionee any option or equity security of the Company, other than the Shares
subject to the Option and any other right or option to purchase Common Stock
which was previously granted in writing to Optionee by the Board. By signing
this Option Agreement, Optionee specifically waives all rights which he or
she may have had prior to the date of this Option Agreement to receive any
option or equity security of the Company.
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7. LEGEND ON STOCK CERTIFICATES. Optionee agrees that all
certificates representing the Purchased Shares will be subject to such stock
transfer orders and other restrictions (if any) as the Company may reasonably
determines to be necessary under the rules, regulations and other
requirements of the Commission, any stock exchange upon which the Common
Stock is then listed and any applicable federal or state securities laws, and
the Company may cause a legend or legends to be put on such certificates to
make appropriate reference to such restrictions. If any such shares are
issued with a legend, the Company shall promptly cause such legend to be
removed if Optionee delivers a written opinion of counsel to the effect that
the Shares are no longer to such restrictions.
8. NO RIGHTS AS SHAREHOLDER. Except as provided in Section 5 of this
Option Agreement, Optionee shall have no rights as a shareholder with respect
to the Shares until the date of the issuance to Optionee of a stock
certificate or stock certificates evidencing such Shares (which issuance
shall not be unreasonably delayed or withheld following the date of
exercise). Except as may be provided in Section 5 of this Option Agreement,
no adjustment shall be made for dividends (ordinary or extraordinary, whether
in cash, securities or other property) or distributions or other rights for
which the record date is prior to the date such stock certificate is issued.
9. REGISTRATION OF SHARES. Prior to the date upon which the Shares
first become exercisable under this Option Agreement, the Company shall
register the resale of such Shares by Optionee pursuant to a Registration
Statement on Form S-8 or S-3 (at the election of the Company) to be filed by
the Company under the 1933 Act and shall maintain such Registration Statement
current until the earlier to occur (x) such time as the Optionee has
transferred all of the Shares, or (y) such date as the Optionee shall be
eligible to transfer such shares pursuant to Rule 144 of the Securities and
Exchange Commission.
10. CHARACTER OF OPTION. The Option is not intended to qualify as an
"incentive stock option" as that term is defined in Section 422 of the Code.
11. GENERAL PROVISIONS.
(a) FURTHER ASSURANCES. Optionee shall promptly take all actions
and execute all documents requested by the Company which the Company deems to
be reasonably necessary to effectuate the terms and intent of this Option
Agreement.
(b) NOTICES. All notices, requests, demands and other
communications under this Option Agreement shall be in writing and shall be
given to the parties hereto as follows:
If to the Company:
99 CENTS Only Stores
4000 East Union Pacific Avenue
City of Commerce, California 90023
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If to Optionee:
Norman Ravich
[address]
or at such other address or addresses as may have been furnished by such
either party in writing to the other party hereto. Any such notice, request,
demand or other communication shall be effective (i) if given by mail, 72
hours after such communication is deposited in the mail by first-class
certified mail, return receipt requested, postage prepaid, addressed as
aforesaid, or (ii) if given by any other means, when delivered at the address
specified in this subsection (b).
(c) OPTION TRANSFERABLE. Optionee may sell, transfer, assign or
otherwise dispose of all or any portion of the Option, subject to Optionee's
compliance with all applicable laws. In the event the Optionee shall sell,
transfer, assign or otherwise dispose of all or any portion of the Option,
the Company shall deliver to Optionee (and in the event the Optionee shall
sell, transfer, assign or otherwise dispose of less than all of the Option,
to Optionee and the transferee of such portion of the Option) a new Option
Agreement identical to this Option Agreement representing the right to
purchase that number of Shares so transferred or retained, as the case may
be.
(d) SUCCESSORS AND ASSIGNS. Except to the extent specifically
limited by the terms and provisions of this Option Agreement, this Option
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors, assigns, heirs and personal
representatives.
(e) GOVERNING LAW. THIS OPTION AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MINNESOTA APPLICABLE TO
CONTRACTS MADE IN, AND TO BE PERFORMED WITHIN, THAT STATE.
(f) NO RIGHT OF SET-OFF. The obligations of the Company hereunder
are conditioned upon Optionee's performance of its obligations under Section 1
and Section 2 of that certain Stockholder Support Agreement, dated the date
hereof, by and between Optionee and the Company (the "Support Agreement").
Except as provided in the preceding sentence, the Company shall have no right
to set off any obligation owing from Optionee to the Company against the
Company's obligations hereunder. Further, no breach or alleged breach by
Optionee under any other agreement with the Company or otherwise shall in any
manner modify or otherwise excuse the Company from performing its obligations
under this Agreement. Upon request of Optionee following performance of
Optionee's obligations under Section 1 and Section 2 of the Support Agreement
and delivery of this Option Agreement to the Company for cancellation, the
Company will issue to Optionee a new Option Agreement replacing this Option
Agreement which will restate this Section 11(f) to read as follows: "(f) No
right of Set-Off. The Company shall have no right to set off any obligation
owing from Optionee to the Company against the Company's obligations
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hereunder. Further, no breach or alleged breach by Optionee under any other
agreement with the Company or otherwise shall any manner modify or otherwise
excuse the Company from performing its obligations under this Agreement."
(g) MISCELLANEOUS. Titles and captions contained in this Option
Agreement are inserted for convenience of reference only and do not
constitute a part of this Option Agreement for any other purpose. Except as
specifically provided herein, neither this Option Agreement nor any right
pursuant hereto or interest herein shall be assignable by any of the parties
hereto without the prior written consent of the other party hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective
on the day and year first hereinabove set forth.
99 CENTS ONLY STORES
By: /s/ David Gold
--------------------------
Its: Chairman of the Board,
Chief Executive Officer
and President
/s/ Norman Ravich
----------------------------
Norman Ravich
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