TMI HOLDINGS, INC.
2003 OMNIBUS SECURITIES PLAN
TABLE OF CONTENTS
PAGE
SECTION 1. PURPOSE...........................................................1
SECTION 2. DEFINITIONS.......................................................1
(a) "Award"....................................................1
(b) "Board of Directors".......................................1
(c) "Change in Control"........................................1
(d) "Code".....................................................1
(e) "Committee"................................................1
(f) "Common-Law Employee"......................................1
(g) "Company"..................................................2
(h) "Employee".................................................2
(i) "Exchange Act".............................................2
(j) "Exercise Price"...........................................2
(k) "Fair Market Value"........................................2
(l) "Incentive Stock Option" or "ISO"..........................2
(m) "Nonstatutory Option" or "NSO".............................2
(n) "Offeree"..................................................2
(o) "Option"...................................................3
(p) "Optionee".................................................3
(q) "Outside Director".........................................3
(r) "Participant"..............................................3
(s) "Plan".....................................................3
(t) "Plan Year"................................................3
(u) "Purchase Price"...........................................3
(v) "Restricted Share".........................................3
(w) "Service"..................................................3
(x) "Share"....................................................3
(y) "Stock"....................................................3
(z) "Stock Award Agreement"....................................3
(aa) "Stock Option Agreement"...................................3
(bb) "Stock Purchase Agreement".................................3
(cc) "Subsidiary"...............................................3
(dd) "Total and Permanent Disability"...........................3
(ee) "W-2 Payroll"..............................................3
SECTION 3. ADMINISTRATION....................................................4
(a) Committee Membership.......................................4
(b) Committee Procedures.......................................4
(c) Committee Responsibilities.................................4
(d) Committee Liability........................................4
(e) Financial Reports..........................................4
SECTION 4. ELIGIBILITY.......................................................4
(a) General Rule...............................................4
(b) Ten-Percent Shareholders...................................4
- i -
(c) Attribution Rules..........................................5
(d) Outstanding Stock..........................................5
SECTION 5. STOCK SUBJECT TO PLAN.............................................5
(a) Basic Limitation...........................................5
(b) Additional Shares..........................................5
SECTION 6. TERMS AND CONDITIONS OF AWARDS OR SALES...........................5
(a) Stock Purchase Agreement...................................5
(b) Duration of Offers.........................................5
(c) Purchase Price.............................................5
(d) Payment for Shares.........................................6
(e) Exercise of Awards on Termination of Service...............6
SECTION 7. ADDITIONAL TERMS AND CONDITIONS OF RESTRICTED.....................6
(a) Form and Amount of Award...................................6
(b) Exercisability.............................................6
(c) Effect of Change in Control................................6
(d) Voting Rights..............................................7
SECTION 8. TERMS AND CONDITIONS OF OPTIONS...................................7
(a) Stock Option Agreement.....................................7
(b) Number of Shares...........................................7
(c) Exercise Price.............................................7
(d) Exercisability.............................................7
(e) Effect of Change in Control................................7
(f) Term.......................................................7
(g) Exercise of Options on Termination of Service..............7
(h) Payment of Option Shares...................................8
(i) No Rights as a Shareholder.................................8
(j) Modification, Extension and Assumption of Options..........8
SECTION 9. ADJUSTMENT OF SHARES..............................................8
(a) General....................................................8
(b) Reorganizations............................................9
(c) Reservation of Rights......................................9
SECTION 10. WITHHOLDING TAXES................................................9
(a) General....................................................9
(b) Share Withholding..........................................9
(c) Cashless Exercise/Pledge...................................9
(d) Other Forms of Payment.....................................9
SECTION 11. ASSIGNMENT OR TRANSFER OF AWARDS.................................9
(a) General....................................................9
(b) Trusts.....................................................9
- ii -
SECTION 12. LEGAL REQUIREMENTS..............................................10
SECTION 13. NO EMPLOYMENT RIGHTS............................................10
SECTION 14. DURATION AND AMENDMENTS.........................................10
(a) Term of the Plan..........................................10
(b) Right to Amend or Terminate the Plan......................10
(c) Effect of Amendment or Termination........................10
- iii -
TMI HOLDINGS, INC.
2003 OMNIBUS SECURITES PLAN
SECTION 1. PURPOSE.
The purpose of the TMI Holdings, Inc. 2003 Omnibus Securities Plan (the
"Plan") is to offer selected employees, directors and consultants an opportunity
to acquire a proprietary interest in the success of the Company, or to increase
such interest, to encourage such selected persons to remain in the employ of the
Company, and to attract new employees with outstanding qualifications. The Plan
seeks to achieve this purpose by providing for Awards in the form of Restricted
Shares and Options (which may constitute Incentive Stock Options or Nonstatutory
Stock Options) as well as the direct award or sale of Shares of the Company's
Common Stock. Awards may be granted under this Plan in reliance upon federal and
state securities law exemptions.
SECTION 2. DEFINITIONS.
(a) "AWARD" shall mean any award of an Option, Restricted Share or other
right under the Plan.
(b) "BOARD OF DIRECTORS" shall mean the Board of Directors of the Company,
as constituted from time to time.
(c) "CHANGE IN CONTROL" shall mean:
(i) The consummation of a merger, consolidation, sale of the Company's
stock, or other reorganization of the Company (other than a reincorporation
of the Company), if after giving effect to such merger, consolidation or
other reorganization of the Company, the stockholders of the Company
immediately prior to such merger, consolidation or other reorganization do
not represent a majority interest of the holders of voting securities (on a
fully diluted basis) with the ordinary voting power to elect directors of
the surviving or resulting entity after such merger, consolidation or other
reorganization; or
(ii) The sale of all or substantially all of the assets of the Company
to a third party who is not an affiliate of the Company.
(iii) The term Change in Control shall not include: (a) a transaction
the sole purpose of which is to change the state of the Company's
incorporation, or (b) the Company's initial public offering.
(d) "CODE" shall mean the Internal Revenue Code of 1986, as amended.
(e) "COMMITTEE" shall mean a committee of the Board of Directors which is
authorized to administer the Plan under Section 3.
(f) "COMMON-LAW EMPLOYEE" shall mean an individual paid from W-2 Payroll of
the Company or a Subsidiary. If, during any period, the Company (or Subsidiary,
as applicable) has not treated an individual as a Common-Law Employee and, for
that reason, has not paid such individual in a manner which results in the
issuance of a Form W-2 and withheld taxes with respect to him or her, then that
individual shall not be an eligible Employee for that period, even if any
- 1 -
person, court of law or government agency determines, retroactively, that that
individual is or was a Common-Law Employee during all or any portion of that
period.
(g) "COMPANY" shall mean TMI Holdings, Inc., a Florida corporation.
(h) "EMPLOYEE" shall mean (i) any individual who is a Common-Law Employee
of the Company or of a Subsidiary, (ii) a member of the Board of Directors,
including (without limitation) an Outside Director, or an affiliate of a member
of the Board of Directors, (iii) a member of the board of directors of a
Subsidiary, or (iv) an independent contractor who performs services for the
Company or a Subsidiary. Service as a member of the Board of Directors, a member
of the board of directors of a Subsidiary or an independent contractor shall be
considered employment for all purposes of the Plan except the second sentence of
Section 4(a).
(i) "EXCHANGE ACT" means the Securities and Exchange Act of 1934, as
amended.
(j) "EXERCISE PRICE" shall mean the amount for which one Share may be
purchased upon exercise of an Option, as specified by the Committee in the
applicable Stock Option Agreement.
(k) "FAIR MARKET VALUE" means the market price of Shares, determined by the
Committee as follows:
(i) If the Shares were traded over-the-counter on the date in question
but were not traded on the Nasdaq Stock Market or the Nasdaq National
Market System, then the Fair Market Value shall be equal to the mean
between the last reported representative bid and asked prices quoted for
such date by the principal automated inter-dealer quotation system on which
the Shares are quoted or, if the Shares are not quoted on any such system,
by the "Pink Sheets" published by the National Quotation Bureau, Inc.;
(ii) If the Shares were traded over-the-counter on the date in
question and were traded on the Nasdaq Stock Market or the Nasdaq National
Market System, then the Fair Market Value shall be equal to the
last-transaction price quoted for such date by the Nasdaq Stock Market or
the Nasdaq National Market;
(iii) If the Shares were traded on a stock exchange on the date in
question, then the Fair Market Value shall be equal to the closing price
reported by the applicable composite transactions report for such date; and
(iv) If none of the foregoing provisions is applicable, then the Fair
Market Value shall be determined by the Committee in good faith on such
basis as it deems appropriate.
In all cases, the determination of Fair Market Value by the Committee shall
be conclusive and binding on all persons.
(l) "INCENTIVE STOCK OPTION" OR "ISO" shall mean an employee incentive
stock option described in Code section 422(b).
(m) "NONSTATUTORY OPTION" OR "NSO" shall mean an employee stock option that
is not an ISO.
(n) "OFFEREE" shall mean an individual to whom the Committee has offered
the right to acquire Shares under the Plan (other than upon exercise of an
Option).
- 2 -
(o) "OPTION" shall mean an Incentive Stock Option or Nonstatutory Option
granted under the Plan and entitling the holder to purchase Shares.
(p) "OPTIONEE" shall mean an individual or estate who holds an Option.
(q) "OUTSIDE DIRECTOR" shall mean a member of the Board who is not a
Common-Law Employee of the Company or a Subsidiary.
(r) "PARTICIPANT" shall mean an individual or estate who holds an Award.
(s) "PLAN" shall mean this 2003 Omnibus Securities Plan of TMI Holdings,
Inc.
(t) "PLAN YEAR" shall mean any twelve (12) month period (or shorter period
during the final year of this Plan) commencing May 1 during the term of this
Plan.
(u) "PURCHASE PRICE" shall mean the consideration for which one Share may
be acquired under the Plan (other than upon exercise of an Option), as specified
by the Committee.
(v) "RESTRICTED SHARE" shall mean a Share sold or granted to an eligible
Employee which is nontransferable and subject to substantial risk of forfeiture
until restrictions lapse.
(w) "SERVICE" shall mean service as an Employee.
(x) "SHARE" shall mean one share of Stock, as adjusted in accordance with
Section 9 (if applicable).
(y) "STOCK" shall mean the common stock of the Company.
(z) "STOCK AWARD AGREEMENT" shall mean the agreement between the Company
and the recipient of a Restricted Share which contains the terms, conditions and
restrictions pertaining to such Restricted Share.
(aa) "STOCK OPTION AGREEMENT" shall mean the agreement between the Company
and an Optionee which contains the terms, conditions and restrictions pertaining
to his or her Option.
(bb) "STOCK PURCHASE AGREEMENT" shall mean the agreement between the
Company and an Offeree who acquires Shares under the Plan which contains the
terms, conditions and restrictions pertaining to the acquisition of such Shares.
(cc) "SUBSIDIARY" means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company, if each of the
corporations other than the last corporation in the unbroken chain owns stock
possessing 50% or more of the total combined voting power of all classes of
stock in one of the other corporations in such chain. A corporation that attains
the status of a Subsidiary on a date after the adoption of the Plan shall be
considered a Subsidiary commencing as of such date.
(dd) "TOTAL AND PERMANENT DISABILITY" means that the Optionee is unable to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment.
(ee) "W-2 PAYROLL" means whatever mechanism or procedure that the Company
or a Subsidiary utilizes to pay any individual which results in the issuance of
Form W-2 to the individual. "W-2 Payroll" does not include any mechanism or
procedure which results in the issuance of any form other than a Form W-2 to an
- 3 -
individual, including, but not limited to, any Form 1099 which may be issued to
an independent contractor, an agency employee or a consultant. Whether a
mechanism or procedure qualifies as a "W-2 Payroll" shall be determined in the
absolute discretion of the Company (or Subsidiary, as applicable), and the
Company or Subsidiary determination shall be conclusive and binding on all
persons.
SECTION 3. ADMINISTRATION.
(a) COMMITTEE MEMBERSHIP. The Plan shall be administered by the
Compensation Committee (the "Committee") appointed by the Company's Board of
Directors and comprised of at least two or more Outside Directors (although
Committee functions may be delegated to officers to the extent the awards relate
to persons who are not subject to the reporting requirements of Section 16 of
the Exchange Act). If no Committee has been appointed, the entire Board shall
constitute the Committee.
(b) COMMITTEE PROCEDURES. The Board of Directors shall designate one of the
members of the Committee as chairperson. The Committee may hold meetings at such
times and places as it shall determine. The acts of a majority of the Committee
members present at meetings at which a quorum exists, or acts reduced to or
approved in writing by all Committee members, shall be valid acts of the
Committee.
(c) COMMITTEE RESPONSIBILITIES. The Committee has and may exercise such
power and authority as may be necessary or appropriate for the Committee to
carry out its functions as described in the Plan. The Committee has authority in
its discretion to determine eligible Employees to whom, and the time or times at
which, Awards may be granted and the number of Shares subject to each Award.
Subject to the express provisions of the respective Award agreements (which need
not be identical) and to make all other determinations necessary or advisable
for Plan administration, the Committee has authority to prescribe, amend, and
rescind rules and regulations relating to the Plan. All interpretations,
determinations, and actions by the Committee will be final, conclusive, and
binding upon all persons.
(d) COMMITTEE LIABILITY. No member of the Board or the Committee will be
liable for any action or determination made in good faith by the Committee with
respect to the Plan or any Award made under the Plan.
(e) FINANCIAL REPORTS. To the extent required by applicable law, and not
less often than annually, the Company shall furnish to Offerees, Optionees and
Shareholders who have received Stock under the Plan its financial statements
including a balance sheet regarding the Company's financial condition and
results of operations, unless such Offerees, Optionees or Shareholders have
duties with the Company that assure them access to equivalent information. Such
financial statements need not be audited.
SECTION 4. ELIGIBILITY.
(a) GENERAL RULE. Only Employees shall be eligible for designation as
Participants by the Committee. In addition, only individuals who are employed as
Common-Law Employees by the Company or a Subsidiary shall be eligible for the
grant of ISOs.
(b) TEN-PERCENT SHAREHOLDERS. An Employee who owns more than ten percent
(10%) of the total combined voting power of all classes of outstanding stock of
the Company or any of its Subsidiaries shall not be eligible for designation as
an Offeree or Optionee unless (i) the Exercise Price for an ISO (and a NSO to
the extent required by applicable law) is at least one hundred ten percent
(110%) of the Fair Market Value of a Share on the date of grant, (ii) if
required by applicable law, the Purchase Price of Shares is at least one hundred
- 4 -
percent (100%) of the Fair Market Value of a Share on the date of grant, and
(iii) in the case of an ISO, such ISO by its terms is not exercisable after the
expiration of five years from the date of grant.
(c) ATTRIBUTION RULES. For purposes of Subsection (b) above, in determining
stock ownership, an Employee shall be deemed to own the stock owned, directly or
indirectly, by or for his brothers, sisters, spouse, ancestors and lineal
descendants. Stock owned, directly or indirectly, by or for a corporation,
partnership, estate or trust shall be deemed to be owned proportionately by or
for its shareholders, partners or beneficiaries. Stock with respect to which
such Employee holds an Option shall not be counted.
(d) OUTSTANDING STOCK. For purposes of Subsection (b) above, "outstanding
stock" shall include all stock actually issued and outstanding immediately after
the grant. "Outstanding Stock" shall not include shares authorized for issuance
under outstanding Options held by the Employee or by any other person.
SECTION 5. STOCK SUBJECT TO PLAN.
(a) BASIC LIMITATION. Shares offered under the Plan shall be authorized but
unissued Shares. Subject to Sections 5(b) and 9 of the Plan, the aggregate
number of Shares which may be issued or transferred as common stock pursuant to
an Award under the Plan shall not exceed 140,000.
In any event, the number of Shares which are subject to Awards or other
rights outstanding at any time under the Plan shall not exceed the number of
Shares which then remain available for issuance under the Plan. The Company,
during the term of the Plan, shall at all times reserve and keep available
sufficient Shares to satisfy the requirements of the Plan.
(b) ADDITIONAL SHARES. In the event that any outstanding Option or other
right for any reason expires or is canceled or otherwise terminated, the Shares
allocable to the unexercised portion of such Option or other right shall again
be available for the purposes of the Plan. If a Restricted Share is forfeited
before any dividends have been paid with respect to such Restricted Share, then
such Restricted Share shall again become available for award under the Plan.
SECTION 6. TERMS AND CONDITIONS OF AWARDS OR SALES.
(a) STOCK PURCHASE AGREEMENT. Each award or sale of Shares under the Plan
(other than upon exercise of an Option) shall be evidenced by a Stock Purchase
Agreement between the Offeree and the Company. Such award or sale shall be
subject to all applicable terms and conditions of the Plan and may be subject to
any other terms and conditions which are not inconsistent with the Plan and
which the Committee deems appropriate for inclusion in a Stock Purchase
Agreement. The provisions of the various Stock Purchase Agreements entered into
under the Plan need not be identical.
(b) DURATION OF OFFERS. Any right to acquire Shares under the Plan (other
than an Option) shall automatically expire if not exercised by the Offeree
within thirty (30) days after the grant of such right was communicated to the
Offeree by the Committee.
(c) PURCHASE PRICE. Unless otherwise permitted by applicable law, the
Purchase Price of Shares to be offered under the Plan shall not be less than
eighty-five percent (85%) of the Fair Market Value of a Share on the date of
grant (100% for 10% shareholders), except as otherwise provided in Section 4(b).
Subject to the preceding sentence, the Purchase Price shall be determined by the
Committee in its sole discretion. The Purchase Price shall be payable in a form
described in Subsection (d) below.
- 5 -
(d) PAYMENT FOR SHARES. The entire Purchase Price of Shares issued under
the Plan shall be payable in lawful money of the United States of America at the
time when such Shares are purchased, except as provided below:
(i) SURRENDER OF STOCK. To the extent that a Stock Option Agreement so
provides, payment may be made all or in part with Shares which have already
been owned by the Optionee or Optionee's representative for any time period
specified by the Committee and which are surrendered to the Company in good
form for transfer. Such shares shall be valued at their Fair Market Value
on the date when the new Shares are purchased under the Plan.
(ii) PROMISSORY NOTES. To the extent that a Stock Option Agreement or
Stock Purchase Agreement so provides, payment may be made all or in part
with a full recourse promissory note executed by the Optionee or Offeree.
The interest rate and other terms and conditions of such note shall be
determined by the Committee. The Committee may require that the Optionee or
Offeree pledge his or her Shares to the Company for the purpose of securing
the payment of such note. In no event shall the stock certificate(s)
representing such Shares be released to the Optionee or Offeree until such
note is paid in full.
(iii) CASHLESS EXERCISE. To the extent that a Stock Option Agreement
so provides and a public market for the Shares exists, payment may be made
all or in part by delivery (on a form prescribed by the Committee) of an
irrevocable direction to a securities broker to sell shares and to deliver
all or part of the sale proceeds to the Company in payment of the aggregate
Exercise Price.
(iv) OTHER FORMS OF PAYMENT. To the extent provided in the Stock
Option Agreement, payment may be made in any other form that is consistent
with applicable laws, regulations and rules.
(e) EXERCISE OF AWARDS ON TERMINATION OF SERVICE. Each Stock Award
Agreement shall set forth the extent to which the recipient shall have the right
to exercise the Award following termination of the recipient's Service with the
Company and its Subsidiaries. Such provisions shall be determined in the sole
discretion of the Committee, need not be uniform among all the Awards issued
pursuant to the Plan, and may reflect distinctions based on the reasons for
termination of employment.
SECTION 7. ADDITIONAL TERMS AND CONDITIONS OF RESTRICTED SHARES.
(a) FORM AND AMOUNT OF AWARD. Each Stock Award Agreement shall specify the
number of Shares that are subject to the Award. Restricted Shares may be awarded
in combination with NSOs and such an Award may provide that the Restricted
Shares will be forfeited in the event that the related NSOs are exercised.
(b) EXERCISABILITY. Each Stock Award Agreement shall specify the conditions
upon which Restricted Shares shall become vested, in full or in installments. To
the extent required by applicable law, each Stock Award shall become exercisable
no less rapidly than the rate of 20% per year for each of the first five years
from the date of grant. Subject to the preceding sentence, the exercisability of
any Stock Award shall be determined by the Committee in its sole discretion.
(c) EFFECT OF CHANGE IN CONTROL. The Committee may determine at the time of
making an Award or thereafter, that such Award shall become fully vested, in
whole or in part, in the event that a Change in Control occurs with respect to
the Company.
- 6 -
(d) VOTING RIGHTS. Holders of Restricted Shares awarded under the Plan
shall have the same voting, dividend and other rights as the Company's other
stockholders. A Stock Award Agreement, however, may require that the holders
invested any cash dividends received in additional Restricted Shares. Such
additional Restricted Shares shall be subject to the same conditions and
restrictions as the Award with respect to which the dividends were paid. Such
additional Restricted Shares shall not reduce the number of Shares available
under Section 5.
SECTION 8. TERMS AND CONDITIONS OF OPTIONS.
(a) STOCK OPTION AGREEMENT. Each grant of an Option under the Plan shall be
evidenced by a Stock Option Agreement between the Optionee and the Company. Such
Option shall be subject to all applicable terms and conditions of the Plan and
may be subject to any other terms and conditions which are not inconsistent with
the Plan and which the Committee deems appropriate for inclusion in a Stock
Option Agreement. The provisions of the various Stock Option Agreements entered
into under the Plan need not be identical.
(b) NUMBER OF SHARES. Each Stock Option Agreement shall specify the number
of Shares that are subject to the Option and shall provide for the adjustment of
such number in accordance with Section 9. The Stock Option Agreement shall also
specify whether the Option is an ISO or a Nonstatutory Option.
(c) EXERCISE PRICE. Each Stock Option Agreement shall specify the Exercise
Price. The Exercise Price of an ISO shall not be less than one hundred percent
(100%) of the Fair Market Value of a Share on the date of grant, except as
otherwise provided in Section 4(b). To the extent required by applicable law and
except as otherwise provided in Section 4(b), the Exercise Price of a
Nonstatutory Option shall not be less than eighty-five percent (85%) of the Fair
Market Value of a Share on the date of grant. Subject to the preceding two
sentences, the Exercise Price under any Option shall be determined by the
Committee in its sole discretion. The Exercise Price shall be payable in a form
described in Subsection (h) below.
(d) EXERCISABILITY. Each Stock Option Agreement shall specify the date when
all or any installment of the Option is to become exercisable. To the extent
required by applicable law, an Option shall become exercisable no less rapidly
than the rate of 20% per year for each of the first five years from the date of
grant. Subject to the preceding sentence, the exercisability of any Option shall
be determined by the Committee in its sole discretion.
(e) EFFECT OF CHANGE IN CONTROL. The Committee may determine, at the time
of granting an Option or thereafter, that such Option shall become fully
exercisable as to all Shares subject to such Option in the event that a Change
in Control occurs with respect to the Company.
(f) TERM. The Stock Option Agreement shall specify the term of the Option.
The term shall not exceed ten (10) years from the date of grant (or five (5)
years for ten percent (10%) shareholders as provided in Section 4(b)). Subject
to the preceding sentence, the Committee at its sole discretion shall determine
when an Option is to expire.
(g) EXERCISE OF OPTIONS ON TERMINATION OF SERVICE. Each Option shall set
forth the extent to which the Optionee shall have the right to exercise the
Option following termination of the Optionee's Service with the Company and its
Subsidiaries. Such provisions shall be determined in the sole discretion of the
Committee, need not be uniform among all Options issued pursuant to the Plan,
and may reflect distinctions based on the reasons for termination of employment.
Notwithstanding the foregoing, to the extent required by applicable law, each
Option shall provide that the Optionee shall have the right to exercise the
- 7 -
vested portion of any Option held at termination for at least sixty (60) days
following termination of Service with the Company for any reason, and that the
Optionee shall have the right to exercise the Option for at least six (6) months
if the Optionee's Service terminates due to death or Disability.
(h) PAYMENT OF OPTION SHARES. The entire Exercise Price of Shares issued
under the Plan shall be payable in lawful money of the United States of America
at the time when such Shares are purchased, except as provided below:
(i) SURRENDER OF STOCK. To the extent that a Stock Option Agreement so
provides, payment may be made all or in part with Shares which have already
been owned by the Optionee or Optionee's representative for any time period
specified by the Committee and which are surrendered to the Company in good
form for transfer. Such shares shall be valued at their Fair Market Value
on the date when the new Shares are purchased under the Plan.
(ii) PROMISSORY NOTES. To the extent that a Stock Option Agreement or
Stock Purchase Agreement so provides, payment may be made all or in part
with a full recourse promissory note executed by the Optionee or Offeree.
The interest rate and other terms and conditions of such note shall be
determined by the Committee. The Committee may require that the Optionee or
Offeree pledge his or her Shares to the Company for the purpose of securing
the payment of such note. In no event shall the stock certificate(s)
representing such Shares be released to the Optionee or Offeree until such
note is paid in full.
(iii) CASHLESS EXERCISE. To the extent that a Stock Option Agreement
so provides and a public market for the Shares exists, payment may be made
all or in part by delivery (on a form prescribed by the Committee) of an
irrevocable direction to a securities broker to sell shares and to deliver
all or part of the sale proceeds to the Company in payment of the aggregate
Exercise Price.
(iv) OTHER FORMS OF PAYMENT. To the extent provided in the Stock
Option Agreement, payment may be made in any other form that is consistent
with applicable laws, regulations and rules.
(i) MODIFICATION, EXTENSION AND ASSUMPTION OF OPTIONS. Within the
limitations of the Plan, the Committee may modify, extend or assume outstanding
Options or may accept the cancellation of outstanding Options (whether granted
by the Company or another issuer) in return for the grant of new Options for the
same or a different number of Shares and at the same or a different Exercise
Price or for other consideration.
SECTION 9. ADJUSTMENT OF SHARES.
(a) GENERAL. In the event of a subdivision of the outstanding Stock, a
declaration of a dividend payable in Shares, a combination or consolidation of
the outstanding Stock into a lesser number of Shares, a recapitalization, a
reclassification or a similar occurrence, the Committee shall make appropriate
adjustments, subject to the limitations set forth in Section 9(c), in one or
more of (i) the number of Shares available for future Awards under Section 5,
(ii) the number of Shares covered by each outstanding Option or Purchase
Agreement or (iii) the Exercise Price or Purchase Price under each outstanding
Option or Stock Purchase Agreement.
- 8 -
(b) REORGANIZATIONS. In the event that the Company is a party to a merger
or reorganization, outstanding Options shall be subject to the agreement of
merger or reorganization, provided however, that the limitations set forth in
Section 9(c) shall apply.
(c) RESERVATION OF RIGHTS. Except as provided in this Section 9, an
Optionee or an Offeree shall have no rights by reason of (i) any subdivision or
consolidation of shares of stock of any class, (ii) the payment of any dividend
or (iii) any other increase or decrease in the number of shares of stock of any
class. Any issue by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number, Exercise
Price or Purchase Agreement of Shares subject to an Option or Stock Purchase
Agreement. The grant of an Award pursuant to the Plan shall not affect in any
way the right or power of the Company to make adjustments, reclassifications,
reorganizations or changes of its capital or business structure, to merge or
consolidate or to dissolve, liquidate, sell or transfer all or any part of its
business or assets.
SECTION 10. WITHHOLDING TAXES.
(a) GENERAL. To the extent required by applicable federal, state, local or
foreign law, a Participant or his or her successor shall make arrangements
satisfactory to the Committee for the satisfaction of any withholding tax
obligations that arise in connection with the Plan. The Company shall not be
required to issue any Shares or make any cash payment under the Plan until such
obligations are satisfied.
(b) SHARE WITHHOLDING. The Committee may permit a Participant to satisfy
all or part of his or her withholding or income tax obligations by having the
Company withhold all or a portion of any Shares that otherwise would be issued
to him or her or by surrendering all or a portion of any Shares that he or she
previously acquired. Such Shares shall be valued at their Fair Market Value on
the date when taxes otherwise would be withheld in cash. Any payment of taxes by
assigning Shares to the Company may be subject to restrictions, including any
restrictions required by rules of any federal or state regulatory body or other
authority.
(c) CASHLESS EXERCISE/PLEDGE. The Committee may provide that if Company
Shares are publicly traded at the time of exercise, arrangements may be made to
meet the Optionee's withholding obligation by cashless exercise or pledge.
(d) OTHER FORMS OF PAYMENT. The Committee may permit such other means of
tax withholding as it deems appropriate.
SECTION 11. ASSIGNMENT OR TRANSFER OF AWARDS.
(a) GENERAL. An Award granted under the Plan shall not be anticipated,
assigned, attached, garnished, optioned, transferred or made subject to any
creditor's process, whether voluntarily, involuntarily or by operation of law,
except as approved by the Committee. Notwithstanding the foregoing, ISOs may not
be transferable. Also notwithstanding the foregoing, Offerees and Optionees may
not transfer their rights hereunder except by will, beneficiary designation or
the laws of descent and distribution.
(b) TRUSTS. Neither this Section 11 nor any other provision of the Plan
shall preclude a Participant from transferring or assigning Restricted Shares to
(a) the trustee of a trust that is revocable by such Participant alone, both at
the time of the transfer or assignment and at all times thereafter prior to such
Participant's death, or (b) the trustee of any other trust to the extent
approved by the Committee in writing. A transfer or assignment of Restricted
- 9 -
Shares from such trustee to any other person than such Participant shall be
permitted only to the extent approved in advance by the Committee in writing,
and Restricted Shares held by such trustee shall be subject to all the
conditions and restrictions set forth in the Plan and in the applicable Stock
Award Agreement, as if such trustee were a party to such Agreement.
SECTION 12. LEGAL REQUIREMENTS.
Shares shall not be issued under the Plan unless the issuance and delivery
of such Shares complies with (or is exempt from) all applicable requirements of
law, including (without limitation) the Securities Act of 1933, as amended, the
rules and regulations promulgated thereunder, state securities laws and
regulations, and the regulations of any stock exchange on which the Company's
securities may then be listed.
SECTION 13. NO EMPLOYMENT RIGHTS.
No provision of the Plan, nor any right or Option granted under the Plan,
shall be construed to give any person any right to become, to be treated as, or
to remain an Employee. The Company and its Subsidiaries reserve the right to
terminate any person's Service at any time and for any reason.
SECTION 14. DURATION AND AMENDMENTS.
(a) TERM OF THE PLAN. The Plan, as set forth herein, shall become effective
on the date of its adoption by the Board of Directors, subject to the approval
of the Company's shareholders. In the event that the shareholders fail to
approve the Plan within twelve (12) months after its adoption by the Board of
Directors, any grants already made shall be null and void, and no additional
grants shall be made after such date. The Plan shall terminate automatically ten
(10) years after its adoption by the Board of Directors and may be terminated on
any earlier date pursuant to Subsection (b) below.
(b) RIGHT TO AMEND OR TERMINATE THE PLAN. The Board of Directors may amend
the Plan at any time and from time to time. Rights and obligations under any
right or Option granted before amendment of the Plan shall not be materially
altered, or impaired adversely, by such amendment, except with consent of the
person to whom the right or Option was granted. An amendment of the Plan shall
be subject to the approval of the Company's shareholders only to the extent
required by applicable laws, regulations or rules including the rules of any
applicable exchange.
(c) EFFECT OF AMENDMENT OR TERMINATION. No Shares shall be issued or sold
under the Plan after the termination thereof, except upon exercise of an Option
granted prior to such termination. The termination of the Plan, or any amendment
thereof, shall not affect any Shares previously issued or any Option previously
granted under the Plan.
- 10 -
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE, AND MAY BE
OFFERED AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO THE RELEVANT
PROVISIONS OF FEDERAL AND STATE SECURITIES LAWS OR IF THE COMPANY IS PROVIDED AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION AND
QUALIFICATION UNDER FEDERAL AND STATE SECURITIES LAWS IS NOT REQUIRED.
TMI HOLDINGS, INC.
2003 OMNIBUS SECURITIES PLAN
INCENTIVE STOCK OPTION AGREEMENT
TMI Holdings, Inc. (the "Company"), hereby grants an Option to purchase
shares of its common stock ("Shares") to the Optionee named below. The terms and
conditions of the Option are set forth in this cover sheet, in the attachment
and in the Company's 2003 Omnibus Securities Plan (the "Plan").
Date of Grant:
--------------------------------------
Name of Optionee:
-----------------------------------------------------
Optionee's Social Security Number:
------------------------------------
Number of Shares Covered by Option:
-----------------------------------
Exercise Price per Share: $
-------------------------
[must be at least 100% fair market value on Date of Grant]
Vesting Start Date:
---------------------------------
___ Check here if Optionee is a 10% owner (so that exercise price must be 110%
of fair market value and term will not exceed 5 years).
BY SIGNING THIS COVER SHEET, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS
DESCRIBED IN THE ATTACHED AGREEMENT AND IN THE PLAN, A COPY OF WHICH IS
ALSO ATTACHED.
Optionee:
--------------------------------------------
(Signature)
Company:
--------------------------------------------
(Signature)
Title:
---------------------------------------
- 1 -
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE, AND MAY BE
OFFERED AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO THE RELEVANT
PROVISIONS OF FEDERAL AND STATE SECURITIES LAWS OR IF THE COMPANY IS PROVIDED AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION AND
QUALIFICATION UNDER FEDERAL AND STATE SECURITIES LAWS IS NOT REQUIRED.
TMI HOLDINGS, INC.
2003 OMNIBUS SECURITIES PLAN
INCENTIVE STOCK OPTION AGREEMENT
INCENTIVE STOCK This Option is intended to be an incentive stock option
OPTION under section 422 of the Internal Revenue Code and will be
interpreted accordingly.
VESTING No Shares will vest until you have performed _________
(____) months of Service from the commencement of your
employment with the Company. Your Option shall vest as to
________ of the Shares on the date _______ (____) months
from the Vesting Start Date as shown on the cover sheet.
Thereafter, Shares shall vest at the rate of _______ of
the Shares at the end of each full month thereafter. After
you have completed _________ (____) months of Service, the
number of Shares which vest under this Option at the
Exercise Price shall be equal to the product of the number
of full months of your continuous employment with the
Company ("Service") (including any approved leaves of
absence) from the Vesting Start Date times the number of
Shares covered by this Option times ________. The
resulting number of Shares will be rounded to the nearest
whole number. No additional Shares will vest after your
Service has terminated for any reason.
You should note that you may exercise the Option prior to
vesting. In that case, the Company has a right to
repurchase the unvested shares at the original exercise
price if you terminate employment before vesting in all
shares you purchased. Also, if you exercise before
vesting, you should consider making an 83(b) election.
Please see the attached Tax Summary. THE 83(B) ELECTION
MUST BE FILED WITHIN 30 DAYS OF THE DATE YOU EXERCISE.
TERM Your Option will expire in any event at the close of
business at Company headquarters on the day before the
tenth anniversary (fifth anniversary for a 10% owner) of
the Date of Grant, as shown on the cover sheet. (It will
expire earlier if your Service terminates, as described
below.)
- 2 -
REGULAR TERMINATION If your Service terminates for any reason except death,
Disability or for "Cause," your Option will expire at the
close of business at Company headquarters on the 30th day
after your termination date. During that 30-day period,
you may exercise that portion of your Option that was
vested on your termination date.
DEATH If you die while in Service with the Company, your Option
will expire at the close of business at Company
headquarters on the date six months after the date of
death. During that six-month period, your estate or heirs
may exercise that portion of your Option that was vested
on the date of death.
DISABILITY If your Service terminates because of your Disability,
your Option will expire at the close of business at
Company headquarters on the date six months after your
termination date. (However, if your Disability is not
expected to result in death or to last for a continuous
period of at least 12 months, your Option will be eligible
for ISO tax treatment only if it is exercised within three
months following the termination of your Service.) During
that six-month period, you may exercise that portion of
your Option that was vested on the date of your
Disability.
"Disability" means that you are unable to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment.
LEAVES OF ABSENCE For purposes of this Option, your Service does not
terminate when you go on a bona fide leave of absence that
was approved by the Company in writing, if the terms of
the leave provide for continued service crediting, or when
continued service crediting is required by applicable law.
However, your Service will be treated as terminating 30
days after you went on leave, unless your right to return
to active work is guaranteed by law or by a contract. Your
Service terminates in any event when the approved leave
ends unless you immediately return to active work. The
Company determines which leaves count for this purpose,
and when your Service terminates for all purposes under
the Plan. The Company also determines the extent to which
you may exercise the vested portion of your Option during
a leave of absence.
NOTICE OF EXERCISE When you wish to exercise this Option, you must execute
EXHIBIT A (and, if exercise is prior to vesting, you must
also execute EXHIBITS B AND D). Your exercise will be
effective when it is received by the Company. If someone
else wants to exercise this Option after your death, that
person must prove to the Company's satisfaction that he or
she is entitled to do so.
FORM OF PAYMENT When you submit EXHIBIT A, you must include payment of the
Exercise Price for the Shares you are purchasing. Payment
may be made in one (or a combination) of the following
forms at the discretion of the committee:
- 3 -
o Your personal check, a cashier's check or a money
order.
o Shares which you have owned for six months and which
are surrendered to the Company. The value of the
Shares, determined as of the effective date of the
Option exercise, will be applied to the Exercise
Price.
o To the extent that a public market for the Shares
exists as determined by the Company, by delivery (on
a form prescribed by the Committee) of an irrevocable
direction to a securities broker to sell Shares and
to deliver all or part of the sale proceeds to the
Company in payment of the aggregate Exercise Price.
o Any other form of legal consideration approved by the
Committee.
WITHHOLDING TAXES You will not be allowed to exercise this Option unless you
make acceptable arrangements to pay any withholding or
other taxes that may be due as a result of the Option
exercise or the sale of Shares acquired upon exercise of
this Option.
RESTRICTIONS ON By signing this Agreement, you agree not to exercise this
RESALE Option or sell any Shares acquired upon exercise of this
Option at a time when applicable laws, regulations or
Company or underwriter trading policies prohibit exercise
or sale. In particular, the Company shall have the right
to designate one or more periods of time, each of which
shall not exceed 180 days in length, during which this
Option shall not be exercisable if the Company determines
(in its sole discretion) that such limitation on exercise
could in any way facilitate a lessening of any restriction
on transfer pursuant to the Securities Act or any state
securities laws with respect to any issuance of securities
by the Company, facilitate the registration or
qualification of any securities by the Company under the
Securities Act or any state securities laws, or facilitate
the perfection of any exemption from the registration or
qualification requirements of the Securities Act or any
applicable state securities laws for the issuance or
transfer of any securities. Such limitation on exercise
shall not alter the vesting schedule set forth in this
Agreement other than to limit the periods during which
this Option shall be exercisable.
Furthermore, in respect of any underwritten public
offering by the Company, you agree that you will not sell
or otherwise transfer or dispose of any Shares covered by
this Option during a reasonable and customary period of
time as agreed to by the Company and the underwriters, not
to exceed the greater of (a) 180 days following the
effective date of the registration statement of the
Company filed under the Securities Act in respect of such
offering and (b) such other period of time as agreed to by
holders of a majority of the then outstanding Shares. By
signing this Agreement you agree to execute and deliver
such other agreements as may be reasonably requested by
the Company or the underwriter which are consistent with
- 4 -
the foregoing or which are necessary to give further
effect thereto. The Company may impose stop-transfer
instructions with respect to the Shares subject to the
foregoing restriction until the end of such period.
If the sale of Shares under the Plan is not registered
under the Securities Act of 1933, as amended (the
"Securities Act"), but an exemption is available which
requires an investment or other representation, you shall
represent and agree at the time of exercise that the
Shares being acquired upon exercise of this Option are
being acquired for investment, and not with a view to the
sale or distribution thereof, and shall make such other
representations as are deemed necessary or appropriate by
the Company and its counsel.
THE COMPANY'S RIGHT In the event that you propose to sell, pledge or otherwise
OF FIRST REFUSAL transfer to a third party any Shares acquired under this
Agreement, or any interest in such Shares, the Company
shall have the "Right of First Refusal" with respect to
all (and not less than all) of such Shares. If you desire
to transfer Shares acquired under this Agreement, you must
give a written "Transfer Notice" to the Company describing
fully the proposed transfer, including the number of
Shares proposed to be transferred, the proposed transfer
price and the name and address of the proposed transferee.
The Transfer Notice shall be signed both by you and by the
proposed transferee and must constitute a binding
commitment of both parties to the transfer of the Shares.
The Company and its assignees shall have the right to
purchase all, and not less than all, of the Shares on the
terms described in the Transfer Notice (subject, however,
to any change in such terms permitted in the next
paragraph) by delivery of a Notice of Exercise of the
Right of First Refusal within 30 days after the date when
the Transfer Notice was received by the Company. The
Company's rights under this Subsection shall be freely
assignable, in whole or in part.
If the Company fails to exercise its Right of First
Refusal within 30 days after the date when it received the
Transfer Notice, you may, not later than 60 days following
receipt of the Transfer Notice by the Company, conclude a
transfer of the Shares subject to the Transfer Notice on
the terms and conditions described in the Transfer Notice.
Any proposed transfer on terms and conditions different
from those described in the Transfer Notice, as well as
any subsequent proposed transfer by you, shall again be
subject to the Right of First Refusal and shall require
compliance with the procedure described in the paragraph
above. If the Company exercises its Right of First
Refusal, you and the Company (or its assignees) shall
consummate the sale of the Shares on the terms set forth
in the Transfer Notice.
- 5 -
The Company's Right of First Refusal shall terminate upon
the Company's initial public offering.
The Company's Right of First Refusal shall inure to the
benefit of its successors and assigns and shall be binding
upon any transferee of the Shares.
RIGHT OF REPURCHASE Following termination of your Service for any reason, the
Company shall have the right to purchase all of those
vested Shares that you have or will acquire under this
Option (unvested Shares which have been exercised are
subject to a Repurchase Option set forth in EXHIBIT A). If
the Company fails to provide you with written notice of
its intention to purchase such Shares before or within 30
days of the date the Company receives written notice from
you of your termination of Service, the Company's right to
purchase such Shares shall terminate. If the Company
exercises its right to purchase such Shares, the Company
will consummate the purchase of such Shares within 60 days
of the date of its written notice to you. The purchase
price for any Shares repurchased shall be the higher of
the fair market value of the Shares on the date of
purchase or the aggregate Exercise Price for such Shares
and shall be paid in cash. The Company's right of
repurchase shall terminate in the event that Stock is
listed on an established stock exchange or is quoted
regularly on the Nasdaq National Market. The fair market
value shall be determined by the Board of Directors in its
sole discretion.
TRANSFER OF OPTION Prior to your death, only you may exercise this Option.
You cannot transfer or assign this Option. For instance,
you may not sell this Option or use it as security for a
loan. If you attempt to do any of these things, this
Option will immediately become invalid. You may, however,
dispose of this Option in your will. Regardless of any
marital property settlement agreement, the Company is not
obligated to honor a Notice of Exercise from your spouse
or former spouse, nor is the Company obligated to
recognize such individual's interest in your Option in any
other way.
RETENTION RIGHTS This Agreement does not give you the right to be retained
by the Company in any capacity. The Company reserves the
right to terminate your Service at any time and for any
reason.
SHAREHOLDER RIGHTS Neither you, nor your estate or heirs, have any rights as
a shareholder of the Company until a certificate for the
Shares acquired upon exercise of this Option has been
issued. No adjustments are made for dividends or other
rights if the applicable record date occurs before your
stock certificate is issued, except as described in the
Plan.
ADJUSTMENTS In the event of a stock split, a stock dividend or a
similar change in the Company's Stock, the number of
Shares covered by this Option and the Exercise Price per
share may be adjusted pursuant to the Plan. Your Option
shall be subject to the terms of the agreement of merger,
liquidation or reorganization in the event the Company is
subject to such corporate activity.
- 6 -
LEGENDS All certificates representing the Shares issued upon
exercise of this Option shall, where applicable, have
endorsed thereon the following legends:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AND OPTIONS TO
PURCHASE SUCH SHARES SET FORTH IN AN AGREEMENT BETWEEN THE
COMPANY AND THE REGISTERED HOLDER, OR SUCH HOLDER'S
PREDECESSOR IN INTEREST. SUCH AGREEMENT IMPOSES CERTAIN
TRANSFER RESTRICTIONS AND GRANTS CERTAIN REPURCHASE RIGHTS
TO THE COMPANY (OR ITS ASSIGNS) UPON THE SALE OF THE
SHARES OR UPON TERMINATION OF SERVICE WITH THE COMPANY. A
COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE
OF THE COMPANY AND WILL BE FURNISHED UPON WRITTEN REQUEST
TO THE SECRETARY OF THE COMPANY BY THE HOLDER OF SHARES
REPRESENTED BY THIS CERTIFICATE.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, OR
THE SECURITIES LAWS OF ANY STATE, AND MAY BE OFFERED AND
SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO THE
RELEVANT PROVISIONS OF FEDERAL AND STATE SECURITIES LAWS
OR IF THE COMPANY IS PROVIDED AN OPINION OF COUNSEL,
SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT
REGISTRATION AND QUALIFICATION UNDER FEDERAL AND STATE
SECURITIES LAWS IS NOT REQUIRED."
APPLICABLE LAW This Agreement will be interpreted and enforced under the
laws of the State of Florida (without regard to their
choice of law provisions).
THE PLAN AND OTHER The text of the Plan is incorporated in this Agreement by
AGREEMENTS reference. Certain capitalized terms used in this
Agreement are defined in the Plan.
This Agreement, including its attachments, and the Plan
constitute the entire understanding between you and the
Company regarding this Option. Any prior agreements,
commitments or negotiations con-cerning this Option are
superseded.
BY SIGNING THE COVER SHEET OF THIS AGREEMENT, YOU AGREE TO ALL OF THE TERMS
AND CONDITIONS DESCRIBED ABOVE AND IN THE PLAN. YOU ALSO ACKNOWLEDGE THAT
YOU HAVE READ SECTION 11, "PURCHASER'S INVESTMENT REPRESENTATIONS" OF
ATTACHMENT A AND THAT YOU CAN AND HEREBY DO MAKE THE SAME REPRESENTATIONS
WITH RESPECT TO THE GRANT OF THIS OPTION.
- 7 -
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE, AND MAY BE
OFFERED AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO THE RELEVANT
PROVISIONS OF FEDERAL AND STATE SECURITIES LAWS OR IF THE COMPANY IS PROVIDED AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION AND
QUALIFICATION UNDER FEDERAL AND STATE SECURITIES LAWS IS NOT REQUIRED.
TMI HOLDINGS, INC.
2003 OMNIBUS SECURITIES PLAN
NONSTATUTORY STOCK OPTION AGREEMENT
TMI Holdings, Inc. (the "Company"), hereby grants an Option to purchase
shares of its common stock ("Shares") to the Optionee named below. The terms and
conditions of the Option are set forth in this cover sheet, in the attachment
and in the Company's 2003 Omnibus Securities Plan (the "Plan").
Date of Grant:
--------------------------------------
Name of Optionee:
-----------------------------------------------------
Optionee's Social Security Number:
------------------------------------
Number of Shares Covered by Option:
-----------------------------------
Exercise Price per Share: $
-------------------------
Vesting Start Date:
---------------------------------
[must be at least 85% fair market value on Date of Grant]
___ Check here if Optionee is a 10% owner (so that exercise price must be 110%
of fair market value and term will not exceed 5 years).
BY SIGNING THIS COVER SHEET, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS
DESCRIBED IN THE ATTACHED AGREEMENT AND IN THE PLAN, A COPY OF WHICH IS
ALSO ATTACHED.
Optionee:
-----------------------------------------------------
(Signature)
Company:
-----------------------------------------------------
(Signature)
Title:
----------------------------------------------
- 1 -
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER
THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE, AND MAY BE
OFFERED AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO THE RELEVANT
PROVISIONS OF FEDERAL AND STATE SECURITIES LAWS OR IF THE COMPANY IS PROVIDED AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION AND
QUALIFICATION UNDER FEDERAL AND STATE SECURITIES LAWS IS NOT REQUIRED.
TMI HOLDINGS, INC.
2003 OMNIBUS SECURITIES PLAN
NONSTATUTORY STOCK OPTION AGREEMENT
NONSTATUTORY STOCK OPTION This Option is not intended to be an incentive
stock option under section 422 of the Internal
Revenue Code and will be interpreted accordingly.
VESTING No Shares will vest until you have performed
_______ (____) months of Service from the
commencement of your employment with the Company.
Your Option shall vest as to _______ of the Shares
on the date _______ (____) months from the Vesting
Start Date as shown on the cover sheet. Thereafter,
Shares shall vest at the rate of ________ of the
Shares at the end of each full month thereafter.
After you have completed ________ (____) months of
Service, the number of Shares which vest under this
Option at the Exercise Price shall be equal to the
product of the number of full months of your
continuous employment with the Company ("Service")
(including any approved leaves of absence) from the
Vesting Start Date times the number of Shares
covered by this Option times ________. The
resulting number of Shares will be rounded to the
nearest whole number. No additional Shares will
vest after your Service has terminated for any
reason.
You should note that you may exercise the Option
prior to vesting. In that case, the Company has a
right to repurchase the unvested shares at the
original exercise price if you terminate employment
before vesting in all shares you purchased. Also,
if you exercise before vesting, you should consider
making an 83(b) election. Please see the attached
Tax Summary. THE 83(B) ELECTION MUST BE FILED
WITHIN 30 DAYS OF THE DATE YOU EXERCISE.
TERM Your Option will expire in any event at the close
of business at Company headquarters on the day
before the tenth anniversary (fifth anniversary for
a 10% owner) of the Date of Grant, as shown on the
cover sheet. (It will expire earlier if your
Service terminates, as described below.)
REGULAR TERMINATION If your Service terminates for any reason except
death, Disability, or for "Cause" your Option will
expire at the close of business at Company
headquarters on the 30th day after your termination
- 2 -
date. During such 30-day period, you may exercise
that portion of your Option that was vested on your
termination date.
DEATH If you die while in Service with the Company, your
Option will expire at the close of business at
Company headquarters on the date six months after
the date of death. During that six-month period,
your estate or heirs may exercise that portion of
your Option that was vested on your date of death.
DISABILITY If your Service terminates because of your
Disability, your Option will expire at the close of
business at Company headquarters on the date six
months after your termination date. During that
six-month period, you may exercise that portion of
your Option that was vested on your date of
Disability.
"Disability" means that you are unable to engage in
any substantial gainful activity by reason of any
medically determinable physical or mental
impairment.
LEAVES OF ABSENCE For purposes of this Option, your Service does not
terminate when you go on a bona fide leave of
absence that was approved by the Company in
writing, if the terms of the leave provide for
continued service crediting, or when continued
service crediting is required by applicable law.
However, your Service will be treated as
terminating 30 days after you went on leave, unless
your right to return to work is guaranteed by law
or by a contract. Your service terminates in any
event when the approved leave ends unless you
immediately return to Service. The Company
determines which leaves count for this purpose, and
when your Service terminates for all purposes under
the Plan. The Company also determines the extent to
which you may exercise the vested portion of your
Option during a leave of absence.
NOTICE OF EXERCISE When you wish to exercise this Option, you must
execute EXHIBIT A (and if exercise is prior to
vesting you must also execute EXHIBITS B AND D).
Your Exercise will be effective when it is received
by the Company. If someone else wants to exercise
this Option after your death, that person must
prove to the Company's satisfaction that he or she
is entitled to do so.
FORM OF PAYMENT When you submit EXHIBIT A, you must include payment
of the Exercise Price for the Shares you are
purchasing. Payment may be made in one (or a
combination) of the following forms at the
discretion of the committee:
o Your personal check, a cashier's check or
a money order.
o Shares which you have owned for six months
and which are surrendered to the Company.
The value of the Shares, determined as of
the effective date of the Option exercise,
will be applied to the Exercise Price.
- 3 -
o To the extent that a public market for the
Shares exists as determined by the
Company, by delivery (on a form prescribed
by the Committee) of an irrevocable
direction to a securities broker to sell
Shares and to deliver all or part of the
sale proceeds to the Company in payment of
the aggregate Exercise Price.
o Any other form of legal consideration
approved by the Committee.
WITHHOLDING TAXES You will not be allowed to exercise this Option
unless you make acceptable arrangements to pay any
withholding or other taxes that may be due as a
result of the Option exercise or the sale of Shares
acquired upon exercise of this Option.
RESTRICTIONS ON RESALE By signing this Agreement, you agree not to
exercise this Option or sell any Shares acquired
upon exercise of this Option at a time when
applicable laws, regulations or Company or
underwriter trading policies prohibit exercise or
sale. In particular, the Company shall have the
right to designate one or more periods of time,
each of which shall not exceed 180 days in length,
during which this Option shall not be exercisable
if the Company determines (in its sole discretion)
that such limitation on exercise could in any way
facilitate a lessening of any restriction on
transfer pursuant to the Securities Act or any
state securities laws with respect to any issuance
of securities by the Company, facilitate the
registration or qualification of any securities by
the Company under the Securities Act or any state
securities laws, or facilitate the perfection of
any exemption from the registration or
qualification requirements of the Securities Act or
any applicable state securities laws for the
issuance or transfer of any securities. Such
limitation on exercise shall not alter the vesting
schedule set forth in this Agreement other than to
limit the periods during which this Option shall be
exercisable.
Furthermore, in respect of any underwritten public
offering by the Company, you agree that you will
not sell or otherwise transfer or dispose of any
Shares covered by this Option during a reasonable
and customary period of time as agreed to by the
Company and the underwriters, not to exceed the
greater of (a) 180 days following the effective
date of the registration statement of the Company
filed under the Securities Act in respect of such
offering and (b) such other period of time as
agreed to by holders of a majority of the then
outstanding Shares. By signing this Agreement you
agree to execute and deliver such other agreements
as may be reasonably requested by the Company or
the underwriter which are consistent with the
foregoing or which are necessary to give further
effect thereto. The Company may impose
stop-transfer instructions with respect to the
Shares subject to the foregoing restriction until
the end of such period.
If the sale of Shares under the Plan is not
registered under the Securities Act of 1933, as
amended (the "Securities Act"), but an exemption is
- 4 -
available which requires an investment or other
representation, you shall represent and agree at
the time of exercise that the Shares being acquired
upon exercise of this Option are being acquired for
investment, and not with a view to the sale or
distribution thereof, and shall make such other
representations as are deemed necessary or
appropriate by the Company and its counsel.
THE COMPANY'S RIGHT OF In the event that you propose to sell, pledge or
FIRST REFUSAL otherwise transfer to a third party any Shares
acquired under this Agreement, or any interest in
such Shares, the Company shall have the "Right of
First Refusal" with respect to all (and not less
than all) of such Shares. If you desire to transfer
Shares acquired under this Agreement, you must give
a written "Transfer Notice" to the Company
describing fully the proposed transfer, including
the number of Shares proposed to be transferred,
the proposed transfer price and the name and
address of the proposed transferee. The Transfer
Notice shall be signed both by you and by the
proposed transferee and must constitute a binding
commitment of both parties to the transfer of the
Shares.
The Company and its assignees shall have the right
to purchase all, and not less than all, of the
Shares on the terms described in the Transfer
Notice (subject, however, to any change in such
terms permitted in the next paragraph) by delivery
of a notice of exercise of the Right of First
Refusal within 30 days after the date when the
Transfer Notice was received by the Company.
The Company's rights under this Subsection shall be
freely assignable, in whole or in part.
If the Company fails to exercise its Right of First
Refusal within 30 days after the date when it
received the Transfer Notice, you may, not later
than 60 days following receipt of the Transfer
Notice by the Company, conclude a transfer of the
Shares subject to the Transfer Notice on the terms
and conditions described in the Transfer Notice.
Any proposed transfer on terms and conditions
different from those described in the Transfer
Notice, as well as any subsequent proposed transfer
by you, shall again be subject to the Right of
First Refusal and shall require compliance with the
procedure described in the paragraph above. If the
Company exercises its Right of First Refusal, you
and the Company (or its assignees) shall consummate
the sale of the Shares on the terms set forth in
the Transfer Notice.
The Company's Right of First Refusal shall
terminate upon the Company's initial public
offering.
The Company's Right of First Refusal shall inure to
the benefit of its successors and assigns and shall
be binding upon any transferee of the Shares.
- 5 -
RIGHT OF REPURCHASE Following termination of your Service for any
reason, the Company shall have the right to
purchase all of those vested Shares that you have
or will acquire under this Option (unvested Shares
which have been exercised are subject to a
Repurchase Option set forth in EXHIBIT A). If the
Company fails to provide you with written notice of
its intention to purchase such Shares before or
within 30 days of the date the Company receives
written notice from you of your termination of
Service, the Company's right to purchase such
Shares shall terminate. If the Company exercises
its right to purchase such Shares, the Company will
consummate the purchase of such Shares within 60
days of the date of its written notice to you. The
purchase price for any Shares repurchased shall be
the higher of the fair market value of the Shares
on the date of purchase or the aggregate Exercise
Price for such Shares and shall be paid in cash.
The Company's right of repurchase shall terminate
in the event that Stock is listed on an established
stock exchange or is quoted regularly on the Nasdaq
National Market. The fair market value shall be
determined by the Board of Directors in its sole
discretion.
TRANSFER OF OPTION Prior to your death, only you may exercise this
Option. You cannot transfer or assign this Option.
For instance, you may not sell this Option or use
it as security for a loan. If you attempt to do any
of these things, this Option will immediately
become invalid. You may, however, dispose of this
Option in your will.
Regardless of any marital property settlement
agreement, the Company is not obligated to honor a
Notice of Exercise from your spouse or former
spouse, nor is the Company obligated to recognize
such individual's interest in your Option in any
other way.
RETENTION RIGHTS This Agreement does not give you the right to be
retained by the Company in any capacity. The
Company reserves the right to terminate your
Service at any time and for any reason.
SHAREHOLDER RIGHTS Neither you, nor your estate or heirs, have any
rights as a shareholder of the Company until a
certificate for the Shares acquired upon exercise
of this Option has been issued. No adjustments are
made for dividends or other rights if the
applicable record date occurs before your stock
certificate is issued, except as described in the
Plan.
ADJUSTMENTS In the event of a stock split, a stock dividend or
a similar change in the Company Stock, the number
of Shares covered by this Option and the Exercise
Price per share may be adjusted pursuant to the
Plan. Your Option shall be subject to the terms of
the agreement of merger, liquidation or
reorganization in the event the Company is subject
to such corporate activity.
LEGENDS All certificates representing the Shares issued
upon exercise of this Option shall, where
applicable, have endorsed thereon the following
legends:
- 6 -
"THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON
TRANSFER AND OPTIONS TO PURCHASE SUCH SHARES SET
FORTH IN AN AGREEMENT BETWEEN THE COMPANY AND THE
REGISTERED HOLDER, OR SUCH HOLDER'S PREDECESSOR IN
INTEREST. SUCH AGREEMENT IMPOSES CERTAIN TRANSFER
RESTRICTIONS AND GRANTS CERTAIN REPURCHASE RIGHTS
TO THE COMPANY (OR ITS ASSIGNS) UPON THE SALE OF
THE SHARES OR UPON TERMINATION OF SERVICE WITH THE
COMPANY. A COPY OF SUCH AGREEMENT IS ON FILE AT THE
PRINCIPAL OFFICE OF THE COMPANY AND WILL BE
FURNISHED UPON WRITTEN REQUEST TO THE SECRETARY OF
THE COMPANY BY THE HOLDER OF SHARES REPRESENTED BY
THIS CERTIFICATE.
THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, OR THE SECURITIES LAWS OF
ANY STATE, AND MAY BE OFFERED AND SOLD ONLY IF
REGISTERED AND QUALIFIED PURSUANT TO THE RELEVANT
PROVISIONS OF FEDERAL AND STATE SECURITIES LAWS OR
IF THE COMPANY IS PROVIDED AN OPINION OF COUNSEL,
SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT
REGISTRATION AND QUALIFICATION UNDER FEDERAL AND
STATE SECURITIES LAWS IS NOT REQUIRED."
APPLICABLE LAW This Agreement will be interpreted and enforced
under the laws of the State of Florida (without
regard to their choice of law provisions).
THE PLAN AND OTHER The text of the Plan is incorporated in this
AGREEMENTS Agreement by reference. Certain capitalized terms
used in this Agreement are defined in the Plan.
This Agreement and the Plan constitute the entire
understanding between you and the Company regarding
this Option. Any prior agreements, commitments or
negotiations concerning this Option are superseded.
BY SIGNING THE COVER SHEET OF THIS AGREEMENT, YOU AGREE TO ALL OF THE
TERMS AND CONDITIONS DESCRIBED ABOVE AND IN THE PLAN. YOU ALSO
ACKNOWLEDGE THAT YOU HAVE READ SECTION 11, "PURCHASER'S INVESTMENT
REPRESENTATIONS" OF ATTACHMENT A AND THAT YOU CAN AND HEREBY DO MAKE
THE SAME REPRESENTATIONS WITH RESPECT TO THE GRANT OF THIS OPTION.
- 7 -
EXHIBIT A
TMI HOLDINGS, INC.
NOTICE OF EXERCISE AND COMMON STOCK PURCHASE AGREEMENT
THIS AGREEMENT is dated as of ___________, ____, between TMI Holdings,
Inc. (the "Company"), and _________________ ("Purchaser").
W I T N E S S E T H:
WHEREAS, the Company and Purchaser are parties to that certain ___
Incentive ___ Nonstatutory Stock Option Agreement dated as of ___________, ____
(the "Option Agreement") pursuant to which the Purchaser has the right to
purchase up to __________ shares of the Company's common stock (the "Option
Shares"); and
WHEREAS, the Option is exercisable with respect to certain of the
Option Shares as of the date hereof; and
WHEREAS, pursuant to the Option Agreement, Purchaser desires to
purchase shares of the Company as herein described, on the terms and conditions
set forth in this Agreement, the Option Agreement and the TMI Holdings, Inc.
2003 Omnibus Securities Plan (the "Plan"). Certain capitalized terms used in
this Agreement are defined in the Plan.
NOW, THEREFORE, it is agreed between the parties as follows:
SECTION 1: PURCHASE OF SHARES.
(a) Pursuant to the terms of the Option Agreement, Purchaser hereby
agrees to purchase from the Company and the Company agrees to sell and issue to
Purchaser _________ shares of the Company's common stock (the "Stock") for the
Exercise Price per share specified in the Option Agreement payable by personal
check, cashier's check or money order, if permitted by the Option Agreement, as
follows: _______________________________. Payment shall be delivered at the
Closing, as such term is hereinafter defined.
(b) The closing hereunder (the "Closing") shall occur at the offices of
the Company on __________, ____, or such other time and place as may be
designated by the Company (the "Closing Date").
SECTION 2: REPURCHASE OPTION
All unvested shares of the Stock purchased by the Purchaser pursuant to
this Agreement (sometimes referred to as the "Repurchase Option Stock") shall be
subject to the following option (the "Repurchase Option"):
(a) In the event the Purchaser terminates service with the Company
("Service") for any reason, with or without cause, the Company may exercise the
Repurchase Option.
- 1 -
(b) Purchaser understands that the Stock is being sold in order to
induce Purchaser to become and/or remain associated with the Company and to work
diligently for the success of the Company and that the Repurchase Option Stock
will continue to vest in accordance with the schedule set forth in the Option
Agreement. Accordingly, the Company shall have the right at any time within 90
days after the termination of Service to purchase from the Purchaser all shares
of Stock purchased hereunder which have not vested in accordance with the terms
of such vesting schedule in the Option Agreement. The purchase price for such
unvested shares of Repurchase Option Stock shall be the Exercise Price per share
paid by Purchaser for such shares pursuant to the Option (the "Option Price").
The purchase price shall be paid by certified or cashier's check or by
cancellation of any indebtedness of Purchaser to the Company.
(c) Nothing in this Agreement shall be construed as a right by
purchaser to be employed by Company, or a parent or subsidiary of Company.
SECTION 3: EXERCISE OF REPURCHASE OPTION
The Repurchase Option shall be exercised by written notice signed by an
officer of the Company and delivered or mailed as provided in Section 16 of this
Agreement and to the Escrow Agent as provided in Section 16 of the Joint Escrow
Instructions attached as Exhibit B to the Option Agreement.
SECTION 4: WAIVER, ASSIGNMENT, EXPIRATION OF REPURCHASE OPTION
If the Company waives or fails to exercise the Repurchase Option as to
all of the shares subject thereto, the Company may, in the discretion of its
Board of Directors, assign the Repurchase Option to any other holder or holders
of preferred or common stock of the Company in such proportions as such Board of
Directors may determine. In the event of such an assignment, the assignee shall
pay to the Company in cash an amount equal to the fair market value of the
Repurchase Option. The Company shall promptly, upon expiration of the 90-day
period referred to in Section 2 above, notify Purchaser of the number of shares
subject to the Repurchase Option assigned to such stockholders and shall notify
both the Purchaser and the assignees of the time, place and date for settlement
of such purchase, which must be made within 90 days from the date of cessation
of continuous employment. In the event that the Company and/or such assignees do
not elect to exercise the Repurchase Option as to all or part of the shares
subject to it, the Repurchase Option shall expire as to all shares which the
Company and/or such assignees have not elected to purchase.
SECTION 5: ESCROW OF SHARES
(a) As security for Purchaser's faithful performance of the terms of
this Agreement and to ensure the availability for delivery of Purchaser's shares
upon exercise of the Repurchase Option herein provided for, Purchaser agrees at
the Closing hereunder, to deliver to and deposit with the Escrow Agent named in
the Joint Escrow Instructions attached to the Option Agreement as Exhibit B, the
certificate or certificates evidencing the Option Stock subject to the
Repurchase Option and two Assignments Separate from Certificate duly executed
(with date and number of shares in blank) in the form attached to the Option
Agreement as Exhibit D. Such documents are to be held by the Escrow Agent and
delivered by the Escrow Agent pursuant to the Joint Escrow Instructions, which
instructions shall also be delivered to the Escrow Agent at the Closing
hereunder.
(b) Within 30 days after the last day of each successive completed
calendar quarter after the Closing Date, if Purchaser so requests, the Escrow
Agent will deliver to Purchaser certificates representing so many shares of
Stock as are no longer subject to the Repurchase Option (less such shares as
have been previously delivered). Ninety days after cessation of Purchaser's
employment with the Company the Company will direct the Escrow Agent to deliver
to Purchaser a certificate or certificates representing the number of shares not
repurchased by the Company or its assignees pursuant to exercise of the
Repurchase Option (less such shares as have been previously delivered).
- 2 -
SECTION 6: ADJUSTMENT OF SHARES
Subject to the provisions of the Articles of Incorporation of the
Company, if, from time to time during the term of the Repurchase Option:
(a) there is any stock dividend or liquidating dividend of cash and/or
property, stock split or other change in the character or amount of any of the
outstanding securities of the Company, or
(b) there is any consolidation, merger or sale of all or substantially
all, of the assets of the Company,
then, in such event, any and all new, substituted or additional securities or
other property to which Purchaser is entitled by reason of Purchaser's ownership
of the shares shall be immediately subject to such Repurchase Option with the
same force and effect as the shares of Option Stock from time to time subject to
the Repurchase Option. While the total Option Price shall remain the same after
each such event, the Option Price per share of Option Stock upon exercise of the
Repurchase Option shall be appropriately and equitably adjusted as determined by
the Board of Directors of the Company.
SECTION 7: THE COMPANY'S RIGHT OF FIRST REFUSAL.
Before any shares of Stock registered in the name of Purchaser and not
subject to the Repurchase Option may be sold or transferred, such shares shall
first be offered to the Company as set forth in the Option Agreement.
SECTION 8: PURCHASER'S RIGHTS AFTER EXERCISE OF REPURCHASE OPTION OR RIGHT OF
FIRST REFUSAL.
If the Company makes available, at the time and place and in the amount
and form provided in this Agreement, the consideration for the Stock to be
repurchased in accordance with the provisions of Sections 2 and 7 of this
Agreement, then from and after such time the person from whom such shares are to
be repurchased shall no longer have any rights as a holder of such shares (other
than the right to receive payment of such consideration in accordance with this
Agreement). Such shares shall be deemed to have been repurchased in accordance
with the applicable provisions hereof, whether or not the certificate(s)
therefor have been delivered as required by this Agreement.
SECTION 9: TRANSFER BY PURCHASER TO CERTAIN TRUSTS.
Purchaser shall have the right to transfer all or any portion of
Purchaser's interest in the shares issued under this Agreement which have been
delivered to Purchaser under the provisions of Section 5 of this Agreement, to a
trust established by Purchaser for the benefit of Purchaser, Purchaser's spouse
or Purchaser's children, without being subject to the provisions of Section 7
hereof, provided that the trustee on behalf of the trust shall agree in writing
to be bound by the terms and conditions of this Agreement. The transferee shall
execute a copy of Exhibit C attached to the Option Agreement and file the same
with the Secretary of the Company.
- 3 -
SECTION 10: LEGEND OF SHARES.
All certificates representing the Stock purchased under this Agreement
shall, where applicable, have endorsed thereon the legends set forth in the
Option Agreement and any other legends required by applicable securities laws.
SECTION 11: PURCHASER'S INVESTMENT REPRESENTATIONS.
(a) This Agreement is made with Purchaser in reliance upon Purchaser's
representation to the Company, which by Purchaser's acceptance hereof Purchaser
confirms, that the Stock which Purchaser will receive will be acquired with
Purchaser's own funds for investment for an indefinite period for Purchaser's
own account, not as a nominee or agent, and not with a view to the sale or
distribution of any part thereof, and that Purchaser has no present intention of
selling, granting participation in, or otherwise distributing the same, but
subject, nevertheless, to any requirement of law that the disposition of
Purchaser's property shall at all times be within Purchaser's control. By
executing this Agreement, Purchaser further represents that Purchaser does not
have any contract, understanding or agreement with any person to sell, transfer,
or grant participation, to such person or to any third person, with respect to
any of the Stock.
(b) Purchaser understands that the Stock will not be registered or
qualified under federal or state securities laws on the ground that the sale
provided for in this Agreement is exempt from registration or qualification
under federal or state securities laws and that the Company's reliance on such
exemption is predicated on Purchaser's representations set forth herein.
(c) Purchaser agrees that in no event will Purchaser make a disposition
of any of the Stock (including a disposition under Section 9 of this Agreement),
unless and until (i) Purchaser shall have notified the Company of the proposed
disposition and shall have furnished the Company with a statement of the
circumstances surrounding the proposed disposition and (ii) Purchaser shall have
furnished the Company with an opinion of counsel satisfactory to the Company to
the effect that (A) such disposition will not require registration or
qualification of such Stock under federal or state securities laws or (B)
appropriate action necessary for compliance with the federal or state securities
laws has been taken or (iii) the Company shall have waived, expressly and in
writing, its rights under clauses (i) and (ii) of this section.
(d) With respect to a transaction occurring prior to such date as the
Plan and Stock thereunder are covered by a valid Form S-8 or similar federal
registration statement, this subsection shall apply unless the transaction is
covered by the exemption in Florida General Corporation Law or a similar broad
based exemption. In connection with the investment representations made herein,
Purchaser represents that Purchaser is able to fend for himself or herself in
the transactions contemplated by this Agreement, has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of Purchaser's investment, has the ability to bear the economic
risks of Purchaser's investment and has been furnished with and has had access
to such information as would be made available in the form of a registration
statement together with such additional information as is necessary to verify
the accuracy of the information supplied and to have all questions answered by
the Company.
(e) Purchaser understands that if the Company does not register with
the Securities and Exchange Commission pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") or if a registration
statement covering the Stock (or a filing pursuant to the exemption from
registration under Regulation A of the Securities Act of 1933) under the
Securities Act of 1933 is not in effect when Purchaser desires to sell the
Stock, Purchaser may be required to hold the Stock for an indeterminate period.
Purchaser also acknowledges that Purchaser understands that any sale of the
Stock which might be made by Purchaser in reliance upon Rule 144 under the
Securities Act of 1933 may be made only in limited amounts in accordance with
the terms and conditions of that Rule.
- 4 -
SECTION 12: ASSISTANCE TO PURCHASER UNDER RULE 144.
The Company covenants and agrees that (a) at all times after it first
becomes subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, it will use its best efforts to comply with the current public
information requirements of Rule 144(c)(1) under the Securities Act of 1933, and
that if prior to becoming subject to such reporting requirements an
over-the-counter market develops for the Stock, it will make publicly available
the information required by Rule 144(c)(2); (b) it will furnish Purchaser, upon
request, with all information required for the preparation and filing of Form
144; and (c) it will on a timely basis use its best efforts to file all reports
required to be filed and make all disclosures, including disclosures of
materially adverse information, required to permit Purchaser to make the
required representations in Form 144.
SECTION 13: NO DUTY TO TRANSFER IN VIOLATION HEREUNDER.
The Company shall not be required (a) to transfer on its books any
shares of Stock of the Company which shall have been sold or transferred in
violation of any of the provisions set forth in this Agreement or (b) to treat
as owner of such shares or to accord the right to vote as such owner or to pay
dividends to any transferee to whom such shares shall have been so transferred.
SECTION 14: RIGHTS OF PURCHASER.
Except as otherwise provided herein, Purchaser shall, during the term
of this Agreement, exercise all rights and privileges of a stockholder of the
Company with respect to the Stock.
SECTION 15: OTHER NECESSARY ACTIONS.
The parties agree to execute such further instruments and to take such
further action as may reasonably be necessary to carry out the intent of this
Agreement.
SECTION 16: NOTICE.
Any notice required or permitted hereunder shall be given in writing
and shall be deemed effectively given upon the earliest of personal delivery,
receipt or the third full day following deposit in the United States Post Office
with postage and fees prepaid, addressed to the other party hereto at the
address last known or at such other address as such party may designate by 10
days' advance written notice to the other party hereto.
SECTION 17: SUCCESSORS AND ASSIGNS.
This Agreement shall inure to the benefit of the successors and assigns
of the Company and, subject to the restrictions on transfer herein set forth, be
binding upon Purchaser and Purchaser's heirs, executors, administrators,
successors and assigns. The failure of the Company in any instance to exercise
the Repurchase Option or rights of first offer described herein shall not
constitute a waiver of any other Repurchase Option or right of first offer that
may subsequently arise under the provisions of this Agreement. No waiver of any
breach or condition of this Agreement shall be deemed to be a waiver of any
other or subsequent breach or condition, whether of a like or different nature.
- 5 -
SECTION 18: APPLICABLE LAW.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Florida, as such laws are applied to contracts entered
into and performed in such state.
SECTION 19: NO STATE QUALIFICATION.
THE SALE OF THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS
NOT BEEN QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE OF FLORIDA
AND THE ISSUANCE OF SUCH SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE
CONSIDERATION THEREFOR PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE
OF SECURITIES IS EXEMPT FROM THE QUALIFICATION. THE RIGHTS OF ALL PARTIES TO
THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED,
UNLESS THE SALE IS SO EXEMPT.
SECTION 20: NO ORAL MODIFICATION.
No modification of this Agreement shall be valid unless made in writing
and signed by the parties hereto.
SECTION 21: ENTIRE AGREEMENT.
This Agreement and the Option Agreement constitute the entire complete
and final agreement between the parties hereto with regard to the subject matter
hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
TMI HOLDINGS, INC. PURCHASER
By
----------------------------------------- ---------------------------
- 6 -
EXHIBIT B
JOINT ESCROW INSTRUCTIONS
---------, -----
Secretary
- ---------------------
Dear Sir or Madam:
As Escrow Agent for both TMI Holdings, Inc. (the "Company"), and
___________________ ("Purchaser"), you are hereby authorized and directed to
hold the documents delivered to you pursuant to the terms of that certain Common
Stock Purchase Agreement (the "Agreement") of even date herewith, to which a
copy of these Joint Escrow Instructions is attached as Exhibit B to a certain
Stock Option dated ________ ("Option Agreement"), in accordance with the
following instructions:
1. In the event the Company shall elect to exercise the Repurchase
Option set forth in the Agreement, the Company shall give to Purchaser and you a
written notice as provided in the Agreement. Purchaser and the Company hereby
irrevocably authorize and direct you to close the transaction contemplated by
such notice, including prompt delivery of stock certificates.
2. At the closing, you are directed (a) to date the stock assignment
form or forms necessary for the transfer in question, (b) to fill in the number
of shares being transferred, and (c) to deliver same, together with the
certificate or certificates evidencing the shares to be transferred, to the
Company against the simultaneous delivery to you of the purchase price (by
certified or bank cashier's check) for the number of shares being purchased
pursuant to the exercise of the Repurchase Option.
3. Purchaser irrevocably authorizes the Company to deposit with you any
certificates evidencing shares to be held by you hereunder and any additions and
substitutions to said shares as defined in the Agreement. Purchaser does hereby
irrevocably constitute and appoint you as Purchaser's attorney-in-fact and agent
for the term of this escrow to execute with respect to such securities all
documents necessary or appropriate to make such securities negotiable and to
complete any transaction herein contemplated. Subject to the provisions of this
Section 3, Purchaser shall exercise all rights and privileges, including but not
limited to, the right to vote and to receive dividends (if any), of a
stockholder of the Company while the shares are held by you.
4. In accordance with the terms of Section 5 of the Agreement, you may
from time to time deliver to Purchaser a certificate or certificates
representing so many shares as are no longer subject to the Repurchase Option.
5. This escrow shall terminate upon the release of all shares held
under the terms and provisions hereof.
- 1 -
6. If at the time of termination of this escrow you should have in your
possession any documents, securities or other property belonging to Purchaser,
you shall deliver all of same to Purchaser and shall be discharged from all
further obligations hereunder.
7. Your duties hereunder may be altered, amended, modified or revoked
only by a writing signed by all of the parties hereto.
8. You shall be obligated only for the performance of such duties as
are specifically set forth herein and may rely and shall be protected in relying
or refraining from acting on any instrument reasonably believed by you to be
genuine and to have been signed or presented by the proper party or parties. You
shall not be personally liable for any act you may do or omit to do hereunder as
Escrow Agent or as attorney-in-fact of Purchaser while acting in good faith and
in the exercise of your own good judgment, and any act done or omitted by you
pursuant to the advice of your own attorneys shall be conclusive evidence of
such good faith.
9. You are hereby expressly authorized to disregard any and all
warnings given by any of the parties hereto or by any other person or
corporation, excepting only orders or process of courts of law, and are hereby
expressly authorized to comply with and obey orders, judgments or decrees of any
court. In case you obey or comply with any such order, judgment or decree of any
court, you shall not be liable to any of the parties hereto or to any other
person, firm or corporation by reason of such compliance, notwithstanding any
such order, judgment or decree being subsequently reversed, modified, annulled,
set aside, vacated or found to have been entered without jurisdiction.
10. You shall not be liable in any respect on account of the identity,
authority or rights of the parties executing or delivering or purporting to
execute or deliver the Agreement or any documents or papers deposited or called
for hereunder.
11. You shall not be liable for the outlawing of any rights under any
statute of limitations with respect to these Joint Escrow Instructions or any
documents deposited with you.
12. You shall be entitled to employ such legal counsel and other
experts as you may deem necessary properly to advise you in connection with your
obligations hereunder and may rely upon the advice of such counsel.
13. Your responsibilities as Escrow Agent hereunder shall terminate if
you shall cease to be Secretary of the Company or if you shall resign by written
notice of each party. In the event of any such termination, the Company shall
appoint any officer of the Company as successor Escrow Agent.
14. If you reasonably require other or further instruments in
connection with these Joint Escrow Instructions or obligations in respect
hereto, the necessary parties hereto shall join in furnishing such instruments.
15. It is understood and agreed that should any dispute arise with
respect to the delivery and/or ownership or right of possession of the
securities held by you hereunder, you are authorized and directed to retain in
your possession without liability to anyone all or any part of said securities
until such dispute shall have been settled either by mutual written agreement of
the parties concerned or by a final order, decree or judgment of a court of
competent jurisdiction after the time for appeal has expired and no appeal has
been perfected, but you shall be under no duty whatsoever to institute or defend
any such proceedings.
- 2 -
16. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery or upon
deposit in the United States Post Office, by registered or certified mail with
postage and fees prepaid, addressed to each of the other parties thereunto
entitled.
17. By signing these Joint Escrow Instructions, you become a party
hereto only for the purpose of said Joint Escrow Instructions; you do not become
a party to the Agreement.
18. This instrument shall be governed by and construed in accordance
with the laws of the State of Florida.
19. This instrument shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
Very truly yours,
TMI HOLDINGS, INC.
By ________________________
ESCROW AGENT: PURCHASER:
- --------------------------. ---------------------------
- 3 -
EXHIBIT C
ACKNOWLEDGMENT OF AND AGREEMENT TO BE BOUND
BY THE NOTICE OF EXERCISE AND COMMON STOCK PURCHASE AGREEMENT OF
TMI HOLDINGS, INC.
The undersigned, as transferee of shares of TMI Holdings, Inc., hereby
acknowledges that he or she has read and reviewed the terms of the Notice of
Exercise and Common Stock Purchase Agreement of TMI Holdings, Inc. and hereby
agrees to be bound by the terms and conditions thereof, as if the undersigned
had executed said Agreement as an original party thereto.
Dated: ____________________, ____.
By ___________________________
- 1 -
EXHIBIT D
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED _________________________________ hereby sells,
assigns and transfers unto _________________________ ________________________
(________) shares of the Common Stock of TMI Holdings, Inc. (the "Company"),
standing in ___________________ name on the books of the Company represented by
Certificate No. ___________ herewith and hereby irrevocably constitutes and
appoints ________________ Attorney to transfer said stock on the books of the
Company with full power of substitution in the premises.
Dated: ____________________, ____.
- 1 -