NEW ACADEMY HOLDING COMPANY LLC UNIT OPTION AWARD AGREEMENT
Exhibit 10.17
2019 EXECUTIVE COMMITTEE AGREEMENT
NEW ACADEMY HOLDING COMPANY LLC
THIS UNIT OPTION AWARD AGREEMENT (this “Award”), made by and between New Academy Holding Company LLC, a Delaware limited liability company (hereinafter referred to as the “Company”), and the individual/participant whose name is set forth on the Master Signature Page attached to this Award (the “Grantee”), is entered into as of the “Grant Date” set forth on such Master Signature Page (the “Grant Date”). Any capitalized terms used but not otherwise defined herein shall have the meaning set forth in the New Academy Holding Company LLC 2011 Unit Incentive Plan, as amended, modified or supplemented from time to time (the “Plan”).
WHEREAS, as an incentive for the Grantee’s efforts in connection with his or her Employment by, or performance of other services for, the Company (or its Affiliates, as applicable), the Company wishes to afford the Grantee the opportunity to purchase a number of Membership Units (which Membership Units shall entitle the Grantee to any and all rights and benefits to which the holder of such Membership Units may be provided under the LLC Agreement and the Delaware Limited Liability Company Act), subject to the terms and conditions set forth herein and in the Plan; and
WHEREAS, the Company wishes to carry out the Plan, the terms of which are hereby incorporated by reference and made a part of this Award, pursuant to which the Committee, appointed to administer the Plan, has instructed the undersigned officers to issue the Options granted hereunder.
NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and valuable consideration, receipt of which is hereby acknowledged, this Award shall be granted in accordance with and subject to the terms and conditions as follows:
ARTICLE I
DEFINITIONS
Whenever the following terms are used in this Award, they shall have the meaning specified below unless the context clearly indicates to the contrary.
Section 1.1. Cause
“Cause” means “Cause” as defined and determined in the Employment Agreement, if any, or if the Grantee has no Employment Agreement or the term “Cause” is not defined in the Employment Agreement, “Cause” shall mean the (i) Grantee’s act of dishonesty or disloyalty (including, but not limited to, fraud, misrepresentation, embezzlement or misappropriation), (ii) Grantee’s failure to timely or sufficiently perform any material and reasonable duties assigned to him/her, (iii) Grantee’s failure to reach the material and reasonable goals set forth for the Grantee, including poor performance and/or failure to achieve an acceptable performance rating, (iv) Grantee’s breach of any policy of Academy, Ltd., including but not limited to all employment, ethics, conflict of interest, and code of conduct policies, (v) Grantee’s drug or alcohol abuse, (vi) Grantee’s conviction, guilty plea, no contest plea, deferred adjudication or other trial diversion regarding any felony or any crime involving moral turpitude, or (vii) Grantee’s willful disregard of any material and reasonable directive, or material misconduct with respect to the business or affairs of Academy, Ltd., including any act or acts which adversely affect its image or reputation or which result in material financial loss to Academy, Ltd.
Section 1.2. Disability
“Disability” means “Disability” as defined in and determined under the Employment Agreement, if any, or if the Grantee has no Employment Agreement or the term “Disability” is not defined in the Employment Agreement, shall mean a physical or mental illness, incapacity or disability which has prevented the Grantee from substantially performing the Grantee’s material duties for a period of one-hundred and eighty (180) consecutive days.
Section 1.3. Earned
“Earned” means eligible to become vested and exercisable in accordance with the vesting provisions set forth on Appendix B attached hereto.
Section 1.4. Earned Percentage
“Earned Percentage” has the meaning ascribed to such term in Appendix B attached hereto.
Section 1.5. EBITDA
“EBITDA” means operating earnings before interest, taxes, depreciation and amortization, excluding transaction, management and/or similar fees paid to the Sponsor and/or its Affiliates. The Committee shall, fairly and appropriately, adjust the calculation of EBITDA to reflect, to the extent not contemplated in the management plan, the following: acquisitions, divestitures, any change required by GAAP relating to Membership Unit-based compensation or for other changes in GAAP promulgated by accounting standard setters and any extraordinary items that, in each case, the Committee in good faith determines require adjustment of EBITDA. The Committee’s determination of such adjustment shall be based on the Company’s accounting as set forth in its books and records and on the financial plan of the Company pursuant to which the performance target was originally established.
Section 1.6. Employed or Employment
“Employed” or “Employment” means employment by the Company or any of its Affiliates as an employee or the performance of services (whether as employee, consultant, director or member or other service provider) to the Company.
Section 1.7. Employment Agreement
“Employment Agreement” means that certain associate employment agreement or other employment agreement, if any, specifying the terms of the Grantee’s Employment by the Company, Academy, Ltd. and/or any of their respective Affiliates, as applicable, as the same may be amended from time to time in accordance with its terms.
Section 1.8. Exercise Price
“Exercise Price” means the price at which a Membership Unit may be purchased upon the exercise of the Options. For all purposes hereunder, the Exercise Price of the Options shall initially be the Exercise Price set forth on the Master Signature Page attached hereto (which is the Fair Market Value per Membership Unit on the Grant Date) and shall thereafter be subject to adjustment pursuant to the Plan.
Section 1.9. Good Reason
“Good Reason” means “Good Reason” as defined and determined in the Employment Agreement, if any, or if the Grantee has no Employment Agreement or the term “Good Reason” is not
defined in the Employment Agreement, “Good Reason” shall mean the occurrence, without the Grantee’s prior written consent, of any of the following events: (i) a material diminution in the Grantee’s annual base salary or target bonus opportunity; (ii) a material diminution in the Grantee’s authority, duties, or responsibilities, which would cause the Grantee’s position to become one of lesser responsibility, importance, or scope; or (iii) the relocation of the Grantee’s principal place of employment to a location more than thirty-five (35) miles from the Grantee’s immediately preceding principal place of employment, if a move to such other location materially increases the Grantee’s commute provided, that the Grantee provides written notice to the Company of the existence of any such condition within ninety (90) days of the initial existence of such condition and the Company fails to remedy the condition within thirty (30) days of receipt of such notice; provided, further, that the Grantee actually terminates employment no later than thirty (30) days following the end of such cure period, if the Good Reason condition remains uncured.
Section 1.10. Grant Year
“Grant Year” has the meaning ascribed to such term in Appendix B attached hereto.
Section 1.11. Grant Year High Performance Target
“Grant Year High Performance Target” has the meaning ascribed to such term in Appendix B attached hereto.
Section 1.12. Grant Year Low Performance Target
“Grant Year Low Performance Target” has the meaning ascribed to such term in Appendix B attached hereto.
Section 1.13. Options
“Options” means the options to purchase any part or all of an aggregate of the number and series of Membership Units granted to the Grantee under Section 2.1 of this Award. For all purposes hereunder, the Options shall include the Time Options and/or Performance Options set forth on the Master Signature Page attached hereto; provided, however, that the Master Signature Page attached hereto may set forth that zero (0) Time Options or Performance Options are granted to the Grantee hereunder.
Section 1.14. Performance Options
“Performance Options” means the Performance Options set forth on the Master Signature Page attached hereto, if any, which are granted to the Grantee pursuant to Section 2.1 of this Award.
Section 1.15. Prior Year Performance Amount
“Prior Year Performance Amount” has the meaning ascribed to such term in Appendix B attached hereto.
Section 1.16. Target Unit Price
“Target Unit Price” has the meaning ascribed to such term in Appendix B attached hereto.
Section 1.17. Time Options
“Time Options” means the Time Options set forth on the Master Signature Page attached hereto, if any, which are granted to the Grantee pursuant to Section 2.1 of this Award.
ARTICLE II
GRANT OF OPTIONS
Section 2.1. Grant of Options; Exercise Price
For good and valuable consideration, upon the terms and conditions set forth herein and in the Plan, on and as of the Grant Date, the Company grants to the Grantee the Options set forth on the Master Signature Page attached hereto, at the Exercise Price, without commission or other charge.
ARTICLE III
PERIOD OF EXERCISABILITY
Section 3.1. Vesting and Commencement of Exercisability
(a) Time Options. Subject to Section 3.1(d)(i) and so long as the Grantee continues to be Employed through the relevant vesting dates, the Time Options shall become vested and exercisable based on elapsed time, such that the percentages of the Time Options set forth in the table entitled Time Options Vesting Schedule on Appendix A attached hereto shall become vested and exercisable on each of the corresponding vesting dates set forth in such table.
(b) Performance Options. Subject to Section 3.1(d)(ii) and so long as the Grantee continues to be Employed through the relevant vesting event, the Performance Options shall become Earned based on the Company’s level of achievement of consolidated annual EBITDA for the Grant Year and thereafter become vested and exercisable based on elapsed time, in accordance with the terms set forth on Appendix B attached hereto, such that the portion of the Performance Options that has been Earned shall become vested and exercisable on the vesting date required by the section entitled Earned Performance Options Vesting Schedule on Appendix B attached hereto; provided that, for the avoidance of doubt, no portion of the Performance Options shall become Earned (and thereby become eligible to become vested and exercisable), unless the Grantee remains Employed through the date on which the Committee determines that the applicable condition(s) to becoming Earned has been satisfied, in accordance with the terms set forth on Appendix B attached hereto.
(c) Death or Disability. Notwithstanding any of the foregoing, upon a termination of the Grantee’s Employment at any time by reason of death or Disability:
(i) The portion of the Time Options that would have become vested and exercisable on the vesting date of the Time Options immediately following the date of such termination, had the Grantee remained Employed through such vesting date, will become vested and exercisable as of such termination; and
(ii) To the extent Earned as of the date of such termination, the portion of the Performance Options that would have become vested and exercisable on the vesting date of the Performance Options immediately following the date of such termination, had the Grantee remained Employed through such vesting date, will become vested and exercisable as of such termination.
(d) Change of Control. Notwithstanding any of Sections 3.1(a) or 3.1(b), in connection with any Change of Control:
(i) Any then-outstanding and unvested portion of the Time Options shall become vested and exercisable as to one hundred percent (100%) of the Membership Units that are subject to such unvested portion, immediately prior to such Change of Control; and
(ii) (A) If such Change of Control occurs during the Grant Year, then any then-outstanding and unvested portion of the Performance Options shall become vested and exercisable as to one hundred percent (100%) of the Membership Units that are subject to such unvested portion, immediately prior to such Change of Control.
(B) If such Change of Control occurs following the Grant Year, then any then-outstanding and unvested portion of the Performance Options that has been Earned as of immediately prior to such Change of Control shall become vested and exercisable as to one hundred percent (100%) of the Membership Units that are subject to such unvested portion, immediately prior to such Change of Control, and any portion of the Performance Options that has not been Earned as of immediately prior to such Change of Control shall be automatically forfeited upon the consummation of such Change of Control.
Section 3.2. Expiration of Options
The Grantee may not exercise the exercisable portion of the Options to any extent and the unexercised portion of the Options shall lapse, upon the first to occur of the following events:
(a) the tenth anniversary of the Grant Date;
(b) the first anniversary of the date of the Grantee’s termination of Employment, if the Grantee’s Employment is terminated by reason of death or Disability; or
(c) one hundred eighty (180) days after the date of an Grantee’s termination of Employment by the Company or its Affiliates without Cause (for any reason other than as set forth in Section 3.2(b)) or by the Grantee for Good Reason; or
(d) immediately upon the date of the Grantee’s termination of Employment by the Company or its Affiliates for Cause; or
(e) thirty (30) days after termination of Employment by the Grantee without Good Reason; or
(f) the date the Options are terminated pursuant to Section 5.1 or 5.2 of the Management Unitholder’s Agreement; or
(g) if the Committee so determines pursuant to Section 7 or 8 of the Plan.
ARTICLE IV
EXERCISE OF OPTIONS
Section 4.1. Person Eligible to Exercise
Except as expressly provided for herein, the Plan or in the Management Unitholder’s Agreement, during the lifetime of the Grantee (other than in the case of the Disability of the Grantee), only the
Grantee may exercise any exercisable portion of the Options. After the Disability or death of the Grantee, any exercisable portion of the Options may, prior to the time when the Options become unexercisable under Section 3.2, be exercised by the Grantee’s legatees, personal representatives, or distributees.
Section 4.2. Partial Exercise
Any exercisable portion of the Options may be exercised in whole or in part at any time prior to the time when such portion becomes unexercisable under Section 3.2; provided, that any partial exercise shall be for whole Membership Units only.
Section 4.3. Manner of Exercise
Any exercisable portion of the Options may be exercised solely by delivering to the Secretary of the Company all of the following on or prior to the time when such portion becomes unexercisable under Section 3.2, and the satisfaction of all of the foregoing shall be determined in the discretion of the Company:
(a) notice in writing signed by the Grantee or any other person then entitled to exercise such portion, stating that such portion is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) full payment of the exercise price applicable to such portion in cash, by check, in Membership Units (any such Membership Units valued at Fair Market Value on the date of exercise) that the Grantee has held for at least six months (or such lesser period of time as may be required by the Company’s accountants), through the withholding of Membership Units (any such Membership Units valued at Fair Market Value on the date of exercise) otherwise issuable upon the exercise of such portion in a manner that is compliant with applicable law, or a combination of the foregoing methods;
(c) full payment in cash of any taxes due in respect of the exercise of such portion in cash, except that upon any termination of the Grantee’s Employment under a circumstance described in Section 3.2(b) or (c) above, the Grantee may make payment of any such taxes under any method described in Section 4.3(b) above;
(d) execution and delivery to the Company, to the extent not so previously executed and delivered, of the Management Unitholder’s Agreement and such other documents and instruments as may be reasonably required by the Committee;
(e) full payment to the Company of all amounts which, under federal, state or local law, it (or an Affiliate) is required to withhold upon exercise of such portion, except as otherwise agreed to by the Company under the Plan;
(f) in the event such portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Grantee, appropriate proof of the right of such person or persons to exercise such portion; and
(g) if so requested by the Committee, an irrevocable voting proxy and power of attorney in favor of a designated member of the Board.
In addition, following an IPO, the Grantee may satisfy his or her obligations under Section 4.3(b) and/or (c) through the sale of Membership Units (or equity securities into which Membership Units are convertible) into the public market pursuant to a cashless exercise program that is compliant with applicable law, to the extent the sale of such Membership Units (or equity securities, as applicable) is permitted under the Management Unitholder’s Agreement.
Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of Membership Units acquired on exercise of any exercisable portion of the Options does not violate the Securities Act of 1933, as amended, and may issue stop-transfer orders covering such Membership Units.
Section 4.4. Conditions to Issuance of Membership Units
The Company shall not be required to record the ownership by the Grantee of Membership Units purchased upon the exercise of any exercisable portion of the Options prior to fulfillment of all of the following conditions:
(a) the obtaining of approval or other clearance from any federal, state, local or non-U.S. governmental agency which the Committee shall, in its reasonable and good faith discretion, determine to be necessary;
(b) the lapse of such reasonable period of time following the exercise of any exercisable portion of the Options as may otherwise be required by applicable law; and
(c) the execution and to the Company, to the extent not so previously executed and delivered, of the Management Unitholder’s Agreement and such other documents and instruments as may be reasonably required by the Committee.
Section 4.5. Rights as Unitholder; Member
The Grantee shall not be, and shall not have any of the rights or privileges of, unitholders or members of the Company in respect of any Membership Units purchasable upon exercise of any exercisable portion of the Options unless and until a book entry representing such Membership Units has been made on the books and records of the Company and the Grantee has been admitted as a member pursuant to the terms of the LLC Agreement; provided, that the Grantee shall be deemed to be admitted as a member, retroactive to the date of exercise of such portion, once the criteria contained in Sections 4.3 and 4.4 hereof have been satisfied.
ARTICLE V
MISCELLANEOUS
Section 5.1. Administration
The Committee shall have the power to interpret the Plan and this Award and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret or revoke any such rules and all actions taken and all interpretations and determinations made by the Committee in good faith shall be final and binding upon the Grantee, the Company and all other interested persons; provided, that the foregoing powers shall not govern any determinations of “Cause” or “Disability” for purposes of this Award, which shall instead be subject to dispute pursuant to Section 5.6. In its absolute discretion, the Board may at any time and from time to time exercise any and all rights and duties of the Committee under the Plan and this Award; provided, that in no event may the Board or Committee terminate the Plan or the Options other than pursuant to Section 7 or 8 of the Plan or the Management Unitholder’s Agreement without the Grantee’s written consent.
Section 5.2. Notices
Any notice to be given under the terms of this Award to the Company shall be addressed to the Company in care of the Secretary, and any notice to be given to the Grantee shall be addressed to the
Grantee at the address set forth in the Company’s books and records. By a notice given pursuant to this Section 5.2, either party may hereafter designate a different address for notices to be given to that party. Any notice which is required to be given to the Grantee, shall, if the Grantee is then deceased, be given to the Grantee’s personal representative if such representative has previously informed the Company of the representative’s status and address by written notice under this Section 5.2.
Section 5.3. Options Subject to Plan and Management Unitholder’s Agreement; Survival of Terms; Conflicts
The Options, and the Membership Units issued to the Grantee upon exercise of any exercisable portion of the Options, shall be subject to all of the terms and provisions of the Plan and the Management Unitholder’s Agreement, to the extent applicable to the Options and such Membership Units, and all such applicable terms are hereby incorporated by reference and made a part hereof, including, without limitation, those provisions contained in Sections 4.1, 5 and 7 of the Management Unitholder’s Agreement. In the event of any conflict between this Award and the Management Unitholder’s Agreement, the Management Unitholder’s Agreement shall control. This Award also remains subject to the terms of the Plan, and, in the event of any conflict between specific provisions of the Plan and the Award, the Plan shall control. The provisions of the Award shall survive the termination of the Award to the extent consistent with, or necessary to carry out, the purposes thereof.
Section 5.4. Amendment
Subject to Section 9 of the Plan, this Award may be amended only by a writing executed by the parties hereto, which specifically states that it is amending this Award.
Section 5.5. Governing Law
This Award shall be governed in all respects by the laws of the State of Delaware, without giving effect to the principal of conflict of laws.
Section 5.6. Disputes
Notwithstanding anything in the Plan to the contrary, any dispute with regard to the enforcement of this Award shall be exclusively resolved pursuant to the dispute resolution procedures set forth in the Employment Agreement, if any, or if the Grantee has no Employment Agreement or if no such procedures exist therein, pursuant to Section 14(h) of the Plan; provided, that any arbitration conducted pursuant to Section 14(h) of the Plan shall be conducted in the State of Texas.
Section 5.7. Conformity to Section 409A
It is intended that the Options either be exempt from or comply with Section 409A, and this Award shall be interpreted accordingly. The Committee shall use commercially reasonable efforts to implement the provisions of this Section 5.7 in good faith; provided, that none of the Company, the Board, the Committee nor any of the Company’s employees, directors or representatives shall have any liability to Participants with respect to this Section 5.7 to the extent administered in accordance therewith.
Section 5.8. No Right of Employment or Service
Nothing contained herein shall confer on the Grantee any right to be continued in the Employ or service of the Company and/or any Affiliate, constitute any contract or agreement of Employment or other service or affect an employee’s status as an at-will employee, nor shall anything contained herein affect any rights which the Company and/or an Affiliate may have to change the Grantee’s compensation
or other benefits or terminate such person’s Employment or association with the Company and/or its Affiliate for any reason (with or without Cause, with or without compensation) at any time.
Section 5.9. Counterparts
This Award may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
Section 5.10 Electronic Delivery
The Company may, in its sole discretion, decide to deliver any documents related to this Award by electronic means. The Grantee hereby consents to receive such documents by electronic delivery and agrees to participate in the Plan through an online or electronic system established and maintained by the Company or a third party designated by the Company. In the event that any information regarding the Options provided to the Grantee through the stock plan administrator’s web portal or otherwise conflicts with any of the terms and conditions of this Award, the Plan or the Management Unitholder’s Agreement (collectively, the “Award Governing Documents”), the Award Governing Documents shall control.
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* * * * * This Unit Option Award Agreement between the Company and the Grantee named on the Master Signature Page attached hereto is dated and executed as of the date set forth on such Master Signature Page.
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Appendix A
Time Options Vesting Schedule
| The following percentages of the Time Options: | Shall become vested and exercisable on the following
corresponding anniversaries of the Grant Date: | |
| 25% |
First anniversary of the Grant Date | |
| 25% |
Second anniversary of the Grant Date | |
| 25% |
Third anniversary of the Grant Date | |
| 25% |
Fourth anniversary of the Grant Date | |
Appendix B
Performance Targets
Subject to Section 3.1(d)(ii) of the Agreement, the Performance Options shall become Earned with respect to a percentage of Membership Units that are subject to the Performance Options based on the Company’s level of achievement of consolidated annual EBITDA for the 2019 fiscal year, which shall be the 52-week period ending on February 1, 2020 (such 52-week period, the “Grant Year”), in accordance with the following terms and conditions.
| • | If the Company’s actual consolidated annual EBITDA for the Grant Year is equal to or greater than $ , which amount is the Company’s target consolidated annual EBITDA for the Grant Year (such amount, the “Grant Year High Performance Target”), then one hundred percent (100%) of the Performance Options shall be Earned. |
| • | If the Company’s actual consolidated annual EBITDA for the Grant Year is less than the Grant Year High Performance Target but equal to or greater than $ (such amount, the “Grant Year Low Performance Target”), then the portion of the Performance Options that shall be Earned shall be equal to a percentage, rounded to two decimal places (the “Earned Percentage”), calculated based on a fraction wherein the numerator is equal to the difference between (i) the Company’s actual consolidated annual EBITDA for the Grant Year and (ii) $ , which amount was the Company’s consolidated annual EBITDA for the 2018 fiscal year (the ‘Prior Year Performance Amount”), and the denominator is equal to the difference between (i) the Grant Year High Performance Target and (ii) the Prior Year Performance Amount. The number of Membership Units that are subject to the Performance Options that shall be so Earned shall be equal to an amount determined by multiplying (x) the Earned Percentage, by (y) the number of Membership Units that are subject to the Performance Options granted (rounded down to the nearest whole share). |
The illustrative example below assumes that the Company’s actual consolidated annual EBITDA for the Grant Year is equal to $ . Based on such assumption, 59.6% of the Membership Units that are subject to the Performance Options shall be Earned.
| (Actual consolidated annual EBITDA for the Grant Year – Prior Year Performance Amount) | ||||
| ÷ | or | |||
| (Grant Year High Performance Target – Prior Year Performance Amount)
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| • | If the Company’s actual consolidated annual EBITDA for the Grant Year is less than the Grant Year Low Performance Target, then none (0.00%) of the Membership Units that are subject to the Performance Options shall be Earned. |
| • | All determinations and interpretations relating to the Company’s achievement of the Grant Year Low Performance Target and/or the Grant Year High Performance Target and the Fair Market Value of each Membership Unit of the Company shall be made in good faith by the Committee, and all determinations and interpretations made in good faith by the Committee shall be final and binding upon the Grantee and all other interested persons. |
Earned Performance Options Vesting Schedule
| The following percentages of the portion of the Performance Option that has been Earned: |
Shall become vested and exercisable on the each of the following | |
| 25% | The date of determination by the Committee of the Company’s actual consolidated annual EBITDA for the Grant Year. | |
| 25% | First anniversary of the last day of the Grant Year | |
| 25% | Second anniversary of the last day of the Grant Year | |
| 25% | Third anniversary of the last day of the Grant Year | |
Notwithstanding the foregoing and subject to Section 3.1(d)(ii), if (i) any portion of the Performance Options that has not been Earned remains outstanding and unvested as of February 3, 2023, and (ii) the Committee determines that the Fair Market Value of a Membership Unit of the Company as of such date equals or exceeds $ (the “Target Unit Price”), then one hundred percent (100%) of the portion of the Performance Options that has not been Earned as of such date shall become vested and exercisable immediately upon such determination by the Committee. For the avoidance of doubt, no portion of the Performance Options may become vested pursuant to this paragraph following a termination of the Grantee’s employment (including, without limitation, a termination due to death or Disability in accordance with Section 3.1(c)(ii)).