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EXHIBIT 11
STOCK OPTION AGREEMENT AND LETTER OF GRANT
July 28, 1998
Xx. Xxxxxx X. Xxxx
0000 X.X. 00xx Xxxxxxx
Xxxxx, XX 00000
RE: Stock Option Grant
------------------
Dear Xxx:
In order to provide additional incentive to you, and in
accordance with the terms of your Employment Agreement between you and Xxx Xxxx
Marketing, Inc. (the "Company") dated as of July 28, 1998 (your "Employment
Agreement"), the Company is offering you by means of this Stock Option Agreement
(this "Agreement") certain non-qualified options to purchase shares of the
Company's authorized but unissued or reacquired voting common stock, par value
$.0001 per share (the "Shares" or the "Common Stock" as the context requires).
We and you intend that this Agreement shall supersede the Employment Agreement
with respect to the terms and conditions of the Option (as defined herein). The
Option is subject to the following terms and conditions:
1. NUMBER OF OPTION SHARES. The Company hereby grants to you,
as of the date set forth above (the "Effective Date"), a non-qualified stock
option (the "Option") to purchase 510,000 Shares.
2. PURCHASE PRICE. The purchase price at which the Shares may
be acquired upon the exercise of the Option shall be equal to the fair market
value of a share of Common Stock on the date hereof, determined based upon the
closing price as of the close of business on the date hereof for a share of
Common Stock.
3. VESTING/EXERCISE DATES. The Option shall vest and become
exercisable in three installments of 170,000 Option shares each as follows:
170,000 Option shares shall be immediately vested and exercisable on the date
hereof. With respect to the remaining portion of the Option, 170,000 Option
shares will vest on each of the first and second anniversaries, respectively
(the "Second Tranche" and the "Third Tranche," respectively), of the date
hereof, conditioned upon (i) your continued employment on such anniversary dates
and (ii) satisfaction of performance targets for the fiscal year(s) as set forth
below, provided, however, that whether or not such performance targets are
satisfied, the Option shall fully vest and become exercisable in full upon the
earliest to occur (assuming your continued employment with the Company on such
dates) of (i) the fifth anniversary of the date the Option is granted, (ii) a
Change in Control of the Company (as defined in your Employment Agreement),
(iii) satisfaction of the stock price targets in accordance with the provisions
of the last paragraph of this Section 3 with respect to the particular
Tranche(s) set forth therein, or (iv) the date of (x) your termination or
resignation from your employment with the Company pursuant to Section 3.02 of
your Employment Agreement, or (y) the Company's non-renewal of your Employment
Agreement pursuant to Section 3.02 thereof.
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Performance targets for vesting shall be as follows:
Company Performance Targets (60% Of 170,000 Vesting):
-----------------------------------------------------
Fiscal 1998 Fiscal 1999 Fiscal 2000
(YE 1/30/99) (YE 1/30/00) (YE 1/30/01)
------------ ------------ ------------
(Amounts shown in thousands, except ratios)
Company
Performance
Net Income $13,000 $17,000 TBD
Return on Capital 9% 12% TBD
Non-Sam's $3,000 $6,000 TBD
Operating Income
"TBD" means to be determined on the same basis (i.e., no more or less stringent)
as other senior executives of the Company.
Mayor's Jewelers Performance Targets (40% Of 170,000 Vesting):
--------------------------------------------------------------
Fiscal Year 1998 Fiscal Year 1999 Fiscal Year 2000
(YE 1/30/99) (YE 1/30/00) (YE 1/30/01)
------------ ------------ ------------
Mayor's Jewelers Performance (Amounts shown in thousands, except ratios)
EBITDA $14,700 $19,300 $22,100
Other such factor(s) to be determined in good faith by the parties hereto after
the date hereof.
Satisfaction of each of the targets for the factors set forth
above in any fiscal year shall entitle you to vesting of the corresponding
percentage of Shares set forth above for such fiscal year (i.e., for the purpose
of clarity, for example, with respect to Company performance, satisfaction of
each of Net Income, Return on Capital and Non-Sam's Operating Income shall be
required in order for vesting based on performance to occur for such fiscal
year). To the extent there is a failure to satisfy the targets for any factor in
any fiscal year, the number of Shares that were not vested by reason of such
failure may become vested in subsequent years if the target for such factor is
satisfied both for such subsequent fiscal year and cumulatively for such
subsequent fiscal year and the fiscal year for which the target was not
satisfied. In the event that full Option vesting has not occurred hereunder on
or prior to the second anniversary of the date hereof, vesting with respect to
the applicable percentages of the Option as set forth above shall occur on each
successive anniversary of such second anniversary during the term of the Option
hereunder, conditioned upon satisfaction of cumulative targeted performance for
relevant fiscal years as described in the immediately preceding sentence, and
your continued employment on such anniversary dates. For purposes of the
foregoing with respect to the Company performance targets, Net Income shall be
as shown on the Company's audited income statement; Return on Capital shall mean
the fraction (expressed as a percentage), the numerator of which shall be Net
Income, and the denominator of which shall be one-half of the sum of Total
Stockholders' Equity at the beginning and at the end of the applicable fiscal
year as shown on the Company's audited consolidated balance sheet; and Non-Sam's
Operating Income shall mean operating income as shown on the Company's audited
consolidated income statement, less the portion thereof (including allocable
overhead) attributable to sales to or in respect of Sam's Club.
Whether or not the performance targets set forth above are
satisfied (and regardless of your employment through the applicable anniversary
dates, but conditioned on your continued employment at the time the stock price
targets are satisfied hereunder) the designated portion of the Option as set
forth below will vest and
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become exercisable if during any period of at least 90 out of 120 consecutive
trading days commencing after the date of this letter, the average of the
closing prices of the Common Stock on each trading day during such period shall
equal or exceed the target stock prices as set forth below, effective on the
first business day after the end of such 90-day period as to such number of
shares set forth below:
Stock Price Targets (Full Vesting (I.e., 170,000) Per Tranche):
---------------------------------------------------------------
Second Tranche: $5.50
Third Tranche: $7.00
4. TRANSFERABILITY. No Option shall be transferable by you
other than by will or the laws of descent and distribution, and the Option may
not be exercised by anyone other than you during your lifetime.
5. EMPLOYMENT STATUS; POST-TERMINATION EXERCISE PERIOD. After
termination of your employment for any reason other than Cause, you may exercise
the Option at any time prior to expiration of its term as set forth herein only
to the extent the Option became vested and exercisable as of any date on or
prior to such termination of employment (taking into consideration the
provisions of Section 3(iv) hereof); provided, however, that if your employment
terminates due to your death or Disability (as defined in your Employment
Agreement), any unvested portion of the Option shall not automatically
terminate, but shall become vested and exercisable by you or your estate to the
extent that such Option would otherwise have become vested in the event that the
performance targets set forth above are achieved. Except as otherwise set forth
herein, no vesting of the Option will occur following your termination of
employment. Upon termination of your employment for Cause as defined in your
Employment Agreement, the unexercised portion of the Option, whether or not
vested, shall immediately terminate. Unless your employment is terminated for
Cause as defined in your Employment Agreement, the term of the vested portion of
your Options will expire on the date which is three months following the date of
your termination of employment (or, if pursuant to the provisions hereof, any
portion of the Option becomes vested after your termination of employment, such
three-month period will commence on the date of such vesting). Notwithstanding
the foregoing, all Options will terminate on (and may not be exercised after)
the date which is five and one half (5 1/2) years following the Effective Date.
6. MANNER OF EXERCISE. You may exercise Option only by giving
the CEO of the Company written notice by personal hand delivery to the CEO or by
registered or certified mail, postage prepaid, at the following address of your
intent to exercise the Option, including the number of Shares that you intend to
acquire and payment of the full consideration therefor: Xxx Xxxx Marketing,
Inc., 00000 Xxxxxxxxx 00xx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, Attn.: CEO.
7. PAYMENT OF EXERCISE PRICE. If you exercise any portion of
the Option, the purchase price must be paid by you in United States dollars (by
check). In no event will Shares be transferred to you on the exercise of the
Option until the full payment has been received by the Company. The Company will
cooperate with you pursuant to your instructions in a reasonable manner at your
expense to permit a broker-assisted exercise of the Option.
8. WITHHOLDING. The Company shall be entitled to withhold an
amount from your compensation necessary to adequately provide for applicable
federal, state and local income taxes. The withholding may be made in a manner
determined by the Company including, without limitation, the following: (i)
withholding other compensation payable to you, (ii) holding back the number of
Shares necessary to satisfy the withholding amount, or (iii) obtaining cash from
you in an amount sufficient to satisfy the withholding requirements.
9. DELIVERY OF SHARES AND COMPLIANCE WITH LAWS.
(a) GENERAL. The Company shall, upon payment of the option
price for the number of shares purchased and paid for, make prompt delivery of
such shares to you, PROVIDED THAT if any law or regulation requires
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the Company to take any action with respect to such shares before the issuance
thereof, then the date of delivery of such shares shall be extended for the
period necessary to complete such action.
(b) LISTING, QUALIFICATIONS, ETC. The Option shall be subject
to the requirement that if, at any time, counsel to the Company shall determine
that the listing, registration or qualification of the shares subject hereto
upon any securities exchange or under any state or federal law, or the consent
or approval of any governmental or regulatory body, or that the disclosure of
nonpublic information or the satisfaction of any other condition is necessary as
a condition of, or in connection with, the issuance or purchase of shares
thereunder, the Option may not be exercised, in whole or in part, unless such
listing, registration, qualification, consent or approval, disclosure or
satisfaction of such other condition shall have been effected or obtained on
terms acceptable to the Company. Nothing herein shall be deemed to require the
Company to apply for, effect or obtain such listing, registration,
qualification, or disclosure, or to satisfy such other condition. If any such
foregoing compliance is not obtained or lapses, the Option will be deemed void
and the Company shall have no responsibility, liability or obligation to you
regarding such Option.
10. BLACKOUT PERIODS. From time to time, the Company, in its
sole discretion, may deem it necessary or advisable to prohibit some or all
holders of options to exercise the options or sell the shares purchased upon
exercise of options. If the Company imposes a blackout period on a complete or
selective basis, the Company shall have no responsibility, liability or
obligation to you regarding your inability to exercise the Option or sell Shares
purchased upon exercise of the Option.
11. RIGHTS AS A SHAREHOLDER OR EMPLOYEE. You shall have no
rights as a shareholder with respect to any Shares covered by the Option until
the date of the issuance of a certificate or certificates for the Shares for
which the Option has been exercised. No adjustment shall be made for dividends
(ordinary or extraordinary, whether cash, securities or other property) or
distributions or other rights for which the record date is prior to the date
such stock certificate or certificates are issued. Nothing in this Agreement
shall confer upon you any right to continue in the employ of the Company or
interfere in any way with any right of the Company to terminate your employment
at any time, subject to the terms and conditions of the Employment Agreement.
12. FRACTIONAL SHARES. The Company shall not be required to
issue fractional shares upon the exercise of an option. The value of any
fractional share subject to an option grant shall be paid in cash in connection
with the exercise that results in all full shares subject to the grant having
been exercised.
13. REORGANIZATIONS, ETC. If the outstanding Shares are
increased or decreased, or are changed into or exchanged for a different number
or kind of shares or securities, as a result of one or more reorganizations,
recapitalization, stock splits, reverse stock splits, stock dividends, spin-off,
spin-out or other distribution of assets to shareholders, or assumption and
conversion of outstanding grants due to an acquisition and the like, appropriate
adjustments shall be made in the number and/or type of Shares subject to the
Option. Any such adjustments in the Options shall be made without changing the
aggregate exercise price applicable to the unexercised portions of such Option.
Notwithstanding the foregoing, a merger or similar reorganization that the
Company does not survive, a sale of all or substantially all of the assets of
the Company, or the dissolution or liquidation of the Company shall cause the
Option to terminate, to the extent not then exercised, except to the extent that
any surviving entity agrees to assume the obligations under the Option.
14. COMPLIANCE WITH RULE 16B-3. The Company intends to cause
this Agreement to be approved by the Board of Directors of the Company (the
"Board") or the appropriate committee thereof, and this Agreement is intended to
qualify for the exemption provided under Rule 16b-3 pursuant to the Securities
Act of 1934, as amended. In the event that Rule 16b-3 is revised or replaced,
the Board shall (if necessary), with your consent, exercise discretion to modify
this Agreement to satisfy any requirements of the revised exemption or its
replacement.
15. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the Company and you with respect to the matters contained
herein.
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16. BINDING EFFECT. This Agreement shall inure to the benefit
of and shall be binding upon the Company and you and their respective heirs,
legal representatives, successors and assigns. Nothing in this Agreement,
expressed or implied, is intended to or shall confer on any person other than
the Company and you, or their respective heirs, legal representatives,
successors or assigns, any rights, remedies, obligations or liabilities.
17. AMENDMENTS AND WAIVERS. This Agreement may not be modified
or amended except by an instrument in writing signed by the Company and you. The
Company and you may, by an instrument in writing, waive compliance by the other
party with any term or provision of this Agreement on the part of such other
party hereto to be performed or complied with. The waiver by any such party of a
breach of any term or provision of this Agreement shall not be construed as a
waiver of any subsequent breach.
18. SECTION AND OTHER HEADINGS. The section and other headings
contained in this Agreement are for reference purposes only and shall not be
deemed to be a part of this Agreement or to affect the meaning or interpretation
of this Agreement.
19. FURTHER ASSURANCES. The Company and you shall do and
perform all such further acts and things and execute and deliver all such other
certificates, instruments and/or documents (including without limitation, such
proxies and/or powers of attorney as may be necessary or appropriate) as either
party hereto may, at any time and from time to time, reasonably request in
connection with the performance of any of the provisions of this Agreement.
20. GOVERNING LAW. This Agreement shall be deemed to be a
contract made under the laws of the State of Delaware and for all purposes shall
be governed by and construed in accordance with the laws of such State
applicable to contracts made and performed in Delaware.
21. ACKNOWLEDGMENT. You accept the Option subject to all the
terms and provisions of this Agreement. You agree to accept as binding,
conclusive and final all decisions or interpretations of the Board or any
committee appointed by the Board upon any questions arising under this
Agreement. You agree to consult your independent tax advisors with respect to
the income tax consequences to you, if any, of the Option and you authorize the
Company to withhold in accordance with applicable law from any compensation
otherwise payable to you any taxes required to be withheld by federal, state or
local law as a result of the Option.
You should execute the enclosed copy of this Agreement and return the executed
copy to Xxxxxxx Xxxxxx, Esq. at the Company as soon as possible. The additional
copy is for your records.
Sincerely yours,
XXX XXXX MARKETING, INC.
By: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx, CEO
ACCEPTED AND AGREED TO:
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
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