Exhibit 10.2.22
CHARMING SHOPPES, INC.
1993 EMPLOYEES' STOCK INCENTIVE PLAN
PERFORMANCE-ACCELERATED STOCK OPTION AGREEMENT
Agreement dated as of February 6, 1995 between CHARMING SHOPPES, INC. (the
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"Company") and (the "Employee").
It is agreed as follows:
1. GRANT OF OPTION; CONSIDERATION
The Company hereby confirms the grant, under and pursuant to the Company's
1993 Employees' Stock Incentive Plan (the "Plan"), to the Employee on of a
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nonqualified stock option to purchase up to ** shares of the Company's common
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stock, par value $.10 per share (the "Shares"), at an exercise price of
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per share (the "Option"). The Option granted hereunder is not intended to
constitute an incentive stock option within the meaning of Section 422 of the
Code.
The Employee shall be required to pay no consideration for the grant of the
Option except for his agreement to provide services to the Company prior to
exercise and other agreements set forth herein.
2. INCORPORATION OF PLAN BY REFERENCE
The Option has been granted to the Employee under the Plan, a copy of which
is attached hereto. All of the terms, conditions and other provisions of the
Plan are hereby incorporated by reference into this Employee Stock Option
Agreement (the "Agreement"). Capitalized terms used in this Agreement but not
defined herein shall have the same meanings as in the Plan. If there is any
conflict between the provisions of this Agreement and the provisions of the
Plan, the provisions of the Plan shall govern.
3. DATE WHEN EXERCISABLE; PERFORMANCE ACCELERATION
(a) This Option may not be exercised unless and only to the extent that it
has become exercisable as specified in this Agreement. Subject to acceleration
as provided in this Section 3, and Sections 7 and 8 below, limitations on
exercisability imposed in Section 8 below, and all other terms and conditions of
this Agreement, this Option shall become exercisable as follows: The Employee
may purchase up to one-fifth of the total number of shares subject to this
Option commencing five (5) years after the date of grant of this Option, an
additional one-fifth commencing six (6) years after the date of grant of this
Option, an additional one-fifth commencing seven (7) years after the date of
grant of this Option, an additional one-fifth commencing eight (8) years after
the date of grant of this Option, and all remaining shares subject to this
Option commencing nine (9) years after the date of grant of this Option. Except
as otherwise specifically provided herein, the Option to purchase any and all
Shares covered by this Agreement shall expire at 5:00 p.m. on the date ten (10)
years after the date of grant of this Option.
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THE DATE OF GRANT OF THIS OPTION IS:
GRANT NUMBER:
(b) In the event that, during any period of three consecutive fiscal years
from fiscal 1996 through fiscal 2000 (i.e. fiscal 1996-1998, 1997-1999, or
1998-2000), the Company's compounded rate of growth of its earnings per share
equals or exceeds fifteen percent (15%) based on such rate for the entire
three-year period ("Achievement of the Performance Condition"), the Option will
become exercisable on an accelerated basis as follows: The Employee may purchase
up to one-half of the total number of shares subject to this Option commencing
on the first anniversary of the date of grant following Achievement of the
Performance Condition, and all remaining shares subject to the Option commencing
on the second anniversary of the date of grant following Achievement of the
Performance Condition. The Committee's determination as to whether Achievement
of the Performance Condition has occurred will be final and binding on the
Company and the Employee. For purposes of making such determination, the
Committee may, in its discretion, adjust the amount of earnings per share as
reported in the Company's financial statements for any year or years in order to
ensure consistency in the manner of calculation of earnings per share over the
three-year performance periods and/or to take into account changes in accounting
principles, business operations of the Company, extraordinary gains or losses,
or other circumstances the Committee may deem relevant.
(c) The number of Shares with respect to which the Option may be exercised
shall be cumulative so that if, in any of the aforementioned periods, the full
number of Shares shall not have been purchased, any such unpurchased Shares
shall continue to be included in the number of Shares with respect to which this
Option shall then be exercisable along with any other Shares as to which this
Option may become exercisable in accordance with its terms.
(d) The provisions contained in Section 3(a) and (b) above notwithstanding,
the Committee may, in its sole discretion, at any time, upon written notice to
the Employee, accelerate the vesting described in Section 3(a) or (b) so that
the Option shall become immediately exercisable to the extent of all or any
portion of the Shares covered hereunder. Acceleration pursuant to this Section
3(d) shall be separate and independent from any acceleration pursuant to Section
7 of this Agreement, and the provisions of Sections 3(e) and (f) shall not apply
in the case of acceleration pursuant to Section 7 of this Agreement.
(e) In the event that the acceleration described in Section 3(d) occurs
prior to the time that all of the Options would have otherwise been exercisable
in accordance with Section 3(a) or, if applicable, Section 3(b), in
consideration of such acceleration, the Employee, if so requested by the Company
at the time, agrees to hold and not dispose of that number of Shares covered by
this Option for which this Option would not have been exercisable at the time of
such acceleration, if such acceleration had not occurred, and further agrees to
dispose of such Shares only at such time and to the extent of that number of
Shares for which this Option would have been exercisable in accordance with the
schedule set forth in Section 3(a), or earlier in accordance with the schedule
set forth in Section 3(b), if applicable, as if the acceleration had not
occurred. In addition, if the Employee's employment with the Company or any of
its subsidiaries shall be voluntarily terminated (other than for a temporary
leave of absence approved by the Company or retirement at age 65 or older or
through early retirement with the consent of the Company pursuant to any
retirement plan of the Company or any subsidiary) prior to a Change of Control
and prior to the expiration of nine (9) years after the date of grant of this
Option, the Employee shall be obligated, at the Company's option exercisable
within 60 days after termination of the Employee's employment, to sell to the
Company any Shares theretofore acquired by the Employee upon exercise of this
Option at a price which is equal to the price that the Employee paid for such
Shares, but only to the extent that the Option would not have been exercisable
at the date of termination of employment in accordance with Section 3(a) or 3(b)
were it not for the acceleration provided for herein.
(f) The Employee acknowledges that the certificates representing those
Shares received upon exercise of the Option at a time the Option would not
otherwise have been exercisable but for an acceleration pursuant to Section 3(d)
may bear an appropriate legend giving notice of the foregoing restrictions,
including the restriction on transfer of the Shares.
4. METHOD OF EXERCISE
The Option may be exercised as to any part of the Shares which may then be
purchased by delivery to and receipt by the Secretary of the Company at ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, of a written notice, signed by the
Employee, specifying the number of Shares which the Employee wishes to purchase,
accompanied by payment in full of the exercise price therefor in accordance with
Section 5. As soon as practicable after the receipt of such notice and payment,
the Company shall deliver to the Employee a stock certificate for the Shares so
purchased, with any requisite legend affixed. Subject to the provisions of the
Plan, such exercise may include instructions to the Company to deliver Shares
due upon exercise of the Option to any registered broker or dealer designated by
the Committee (a "Designated Broker") in lieu of delivery to the Employee. Such
instructions must designate the account into which the Shares are to be
deposited. The Employee may
tender this notice of exercise, which has been properly executed by the
Employee, and the aforementioned delivery instructions to any Designated Broker
together with irrevocable instructions to the Designated Broker to promptly
deliver to the Company the cash amount of sale or loan proceeds from the Shares
sufficient to pay the exercise price, and thereupon the Company may issue Shares
and deliver them to such Designated Broker.
5. PAYMENT OF EXERCISE PRICE
The exercise price of the Option shall be payable in cash or by certified
or bank cashier's check, provided, however, that, in lieu of payment in full in
cash or by such check, the exercise price may, with the approval of the
Committee, upon written request of the Employee, be paid in full or in part by
delivery and transfer to the Company of that number of shares of the Company's
common stock otherwise owned by the Employee with an aggregate fair market value
(determined in accordance with procedures for valuing shares as set forth in
rules and regulations adopted by the Committee and in effect at the time the
Employee's notice of exercise is received by the Company) equal to the aggregate
exercise price of that number of Shares for which the Option is being exercised
or such lesser portion of the aggregate purchase price as may be specified by
the Employee (in which case the balance must be paid in cash or by certified or
bank cashier's check).
6. TAX WITHHOLDING
Whenever Shares are to be delivered upon exercise of the Option, the
Company shall be entitled to require as a condition of delivery that the
Employee remit or, in appropriate cases, agree to remit when due an amount
sufficient to satisfy all federal, state and local withholding tax requirements
relating thereto. Subject to the approval of the Committee, the Employee will be
entitled to elect to have the Company withhold from the Shares to be delivered
upon the exercise of the Option, or to elect to deliver to the Company from
shares of the Company's common stock owned separately by the Employee, a
sufficient number of such shares to satisfy the Employee's federal, state and
local tax obligations relating to the Option exercise (and the Company's
withholding obligations), to the extent, if any, permitted under rules and
regulations adopted by the Committee and in effect at the time of the exercise
of the Option. In such case, the Shares withheld or the shares surrendered will
be valued at the fair market value determined in accordance with procedures for
valuing shares as set forth in rules and regulations adopted by the Committee
and otherwise in effect at the time of the exercise of the Option.
7. CHANGE OF CONTROL PROVISIONS
(a) Acceleration of Exercisability. In the event of a Change of Control at
a time that the Employee is employed by the Company or any of its subsidiaries,
this Option shall become immediately and fully exercisable upon the occurrence
of such Change of Control, and no restriction or limitation on the rights of the
Employee set forth in Section 3 hereof shall have any further force or effect.
(b) Definitions of Certain Terms. For purposes of this Agreement, the
following definitions shall apply:
(1) "Beneficial Owner," "Beneficially Owns," and "Beneficial
Ownership" shall have the meanings ascribed to such terms for purposes of
Section 13(d) of the Exchange Act and the rules thereunder, except that,
for purposes of this Section 7, "Beneficial Ownership" (and the related
terms) shall include Voting Securities that a Person has the right to
acquire pursuant to any agreement, or upon exercise of conversion rights,
warrants, options or otherwise, regardless of whether any such right is
exercisable within 60 days of the date as of which Beneficial Ownership is
to be determined.
(2) "Change of Control" means and shall be deemed to have occurred if
(i) any Person, other than the Company or a Related Party,
acquires directly or indirectly the Beneficial Ownership of any
Voting Security of the Company and immediately after such
acquisition such Person has, directly or indirectly, the
Beneficial Ownership of Voting Securities representing 20 percent
or more of the total voting power of all the then-outstanding
Voting Securities; or
(ii) those individuals who as of February 6, 1995 constitute
the Board or who thereafter are elected to the Board and whose
election, or nomination for election, to the Board was approved
by a vote of at least
two-thirds (2/3) of the directors then still in office who either
were directors as of February 6, 1995 or whose election or
nomination for election was previously so approved, cease for any
reason to constitute a majority of the members of the Board; or
(iii) the shareholders of the Company approve a merger,
consolidation, recapitalization or reorganization of the Company,
a reverse stock split of outstanding Voting Securities, or an
acquisition of securities or assets by the Company (a
"Transaction"), or consummation of such a Transaction if
shareholder approval is not obtained, other than a Transaction
which would result in the holders of Voting Securities having at
least 80 percent of the total voting power represented by the
Voting Securities outstanding immediately prior thereto
continuing to hold Voting Securities or voting securities of the
surviving entity having at least 60 percent of the total voting
power represented by the Voting Securities or the voting
securities of such surviving entity outstanding immediately after
such Transaction and in or as a result of which the voting rights
of each Voting Security relative to the voting rights of all
other Voting Securities are not altered; provided, however, a
Change of Control shall not be deemed to have occurred if the
Board of Directors shall have determined, by action taken prior
to the approval of the Transaction by shareholders or
consummation of the Transaction if shareholder approval is not
obtained, that such Transaction shall not constitute a Change of
Control for purposes of all options then outstanding under the
Plan, which determination, if made with respect to a Transaction,
shall not be deemed to constitute a determination with respect to
any subsequent Transaction; or
(iv) the shareholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale
or disposition by the Company of all or substantially all of the
Company's assets other than any such transaction which would
result in Related Parties owning or acquiring more than 50
percent of the assets owned by the Company immediately prior to
the transaction.
(3) "Person" shall have the meaning ascribed for purposes of Section
13(d) of the Exchange Act and the rules thereunder.
(4) "Related Party" means (i) a majority-owned subsidiary of the
Company; or (ii) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any majority-owned subsidiary of
the Company; or (iii) a corporation owned directly or indirectly by the
shareholders of the Company in substantially the same proportion as their
ownership of Voting Securities; or (iv) if, prior to any acquisition of a
Voting Security which would result in any Person Beneficially Owning more
than ten percent of any outstanding class of Voting Security and which
would be required to be reported on a Schedule 13D or an amendment thereto,
the Board approved the initial transaction giving rise to an increase in
Beneficial Ownership in excess of ten percent and any subsequent
transaction giving rise to any further increase in Beneficial Ownership;
provided, however, that such Person has not, prior to obtaining Board
approval of any such transaction, publicly announced an intention to take
actions which, if consummated or successful (at a time such Person has not
been deemed a "Related Party"), would constitute a Change of Control.
(5) "Voting Securities" means any securities of the Company which
carry the right to vote generally in the election of directors.
8. TERMINATION OF EMPLOYMENT
(a) This Option shall terminate and no longer be exercisable at the earlier
of the scheduled expiration time of the Option, as set forth in Section 3(a)
above, or the earliest time specified below at or following a termination of
employment of the Employee; provided, however, that in the event of termination
of the employment of the Employee, this Option shall be exercisable during the
period, if any, between the occurrence of such termination and the time
designated for the termination of this Option only to the extent indicated
below:
(1) at the time of involuntary termination of the Employee's
employment with the Company or any of its subsidiaries for reasons of moral
turpitude, at which time this Option shall immediately terminate; provided,
however, that, the provisions of Section 3(a) and (b) notwithstanding, this
Option may not be exercised during any
period prior to a Change of Control during which the Company, having given
notice to the Employee, is investigating a claim that the Employee has
engaged in one or more acts of moral turpitude; or
(2) at the time of voluntary or involuntary termination of the
Employee's employment with the Company or any of its subsidiaries for any
reason at any time prior to the expiration of three years after the date of
grant of this Option and prior to any Change of Control, other than by
reason of the Employee's death or disability, at which time this Option
shall immediately terminate; or
(3) at the expiration of three months after the voluntary or, if for
cause (other than for reasons of moral turpitude), the involuntary
termination of the Employee's employment with the Company or any of its
subsidiaries, in either case at any time (A) after the expiration of three
years after the date of grant of this Option, except as may be otherwise
provided in Section 8(a)(7) below, during which three-month period this
Option shall be exercisable only to the extent that it was exercisable at
the date of the Employee's termination of employment, or (B) after a Change
of Control, except as may be otherwise provided in Section 8(a)(7) below,
during which three-month period this Option shall be exercisable in full;
or
(4) at the expiration of three months after the involuntary
termination of the Employee's employment, other than for reasons of cause,
moral turpitude, death or disability, with the Company or any of its
subsidiaries at any time (A) after the expiration of three years after the
date of grant of this Option, except as may be otherwise provided in
Section 8(a)(7) below, during which three-month period this Option shall be
exercisable to purchase the greater of (i) a number of Shares determined
pursuant to the Option Formula (as set forth in Section 8(e) below) and
(ii) the number of Shares as to which this Option was exercisable at the
date of the Employee's termination of employment, or (B) after a Change of
Control, except as may be otherwise provided in Section 8(a)(7) below,
during which three-month period this Option shall be exercisable in full;
or
(5) at the scheduled expiration time of this Option, as set forth in
Section 3(a) above, if the Employee's termination results from his normal
retirement at age 65 or thereafter ("Normal Retirement") or early
retirement after reaching age 60 and prior to age 65 with the consent of
the Company pursuant to any retirement plan ("Early Retirement"), or such
shorter period as may be provided in Section 8(a)(6) below, provided that
(i), during the period after Normal Retirement or Early Retirement, as the
case may be, and until such scheduled expiration time of this Option (the
"Exercisability Period"), this Option shall continue to be exercisable by
the Employee at such times and to the same extent that it would have been
exercisable had the Employee continued his employment throughout the
Exercisability Period, except as may be otherwise provided in Section
8(a)(6) below, and (ii) at the time of Normal Retirement or Early
Retirement, as the case may be, the Employee enters into an agreement not
to engage, directly or indirectly, in any business activity in competition
with any business then engaged in by the Company or any of its subsidiaries
during the Exercisability Period, and containing such other terms and
conditions as may be specified by the Company; or
(6) at the expiration of one year after the Employee's death if the
Employee dies while employed by the Company or any of its subsidiaries or
dies during the Exercisability Period specified in Section 8(a)(5) above,
during which one-year period this Option shall be exercisable in full; or
(7) at the expiration of one year after the Employee's death if the
Employee dies during the three-month periods referred to in Sections
8(a)(3) or (4) above, during which one-year period this Option shall be
exercisable to the same extent provided in Section 8(a)(3) or (4) above
(whichever was applicable prior to the Employee's death); or
(8) at the expiration of one year after the termination of the
Employee's employment with the Company or any of its subsidiaries by reason
of the Employee's permanent disability if the Employee becomes permanently
disabled while employed by the Company or any of its subsidiaries, during
which one-year period this Option shall be exercisable in full.
(b) For purposes hereof, "cause" shall mean the Employee's chronic neglect,
refusal or failure to fulfill his or her employment duties and responsibilities,
other than for reasons of sickness, accident or other similar causes beyond the
Employee's control. Such neglect, refusal or failure shall be determined in the
sole and reasonable judgment of the Committee.
(c) For purposes hereof, the existence of a "disability" shall be
determined by, or in accordance with criteria and standards adopted by, the
Committee.
(d) For purposes hereof, "moral turpitude" shall mean the Employee's
dishonesty or intentional wrongdoing committed against the Company, its agents
or employees or otherwise in connection with his or her employment by the
Company or conviction of a crime, whether or not in connection with employment,
other than a traffic infraction or other minor violation. The Committee shall
have the sole discretion to determine whether the Employee has committed an act
of moral turpitude.
(e) For purposes hereof, the "Option Formula" shall be the product of (i)
the total number of Shares covered by this Option at the date of termination of
employment times (ii) a fraction, the numerator of which shall be the lesser of
five (5) or the number of full and partial years that the Employee has been
employed by the Company or any of its subsidiaries between the fifth anniversary
of the date of grant of this Option and the date of termination of employment
and the denominator of which shall be the number five (5).
(f) Except as provided in Section 9, an Employee shall not be deemed to
have terminated his employment for purposes of this Section 8 if his employment
terminates with the Company but thereafter continues with one of the Company's
subsidiaries or terminates with a subsidiary but thereafter continues with the
Company or another subsidiary.
9. CHANGE IN JOB STATUS
Should the Employee's job classification change, and as a result of such
change the Committee determines, in its sole discretion and prior to any Change
of Control, that the Employee is no longer employed in a position which would
enable him to contribute to the success of the Company on at least as great a
level as that to which he was enabled by his prior job classification, then the
Committee may deem the Employee's employment with the Company or its
subsidiaries to have been terminated involuntarily (but not for cause or moral
turpitude) in respect of all or a portion of this Option.
10. LIMITS ON TRANSFER OF OPTION; BENEFICIARIES
No right or interest of a participant in this Option shall be pledged,
encumbered or hypothecated to or in favor of any third party or shall be subject
to any lien, obligation or liability of the Employee to any third party. This
Option shall not be transferable to any third party by the Employee otherwise
than by will or the laws of descent and distribution, and this Option shall be
exercisable, during the lifetime of the Employee, only by the Employee;
provided, however, that the Employee will be entitled to designate a beneficiary
or beneficiaries to exercise his rights under this Option upon the death of
Employee, in the manner and to the extent permitted by the Committee under rules
and regulations adopted by the Committee under the Plan.
11. INVESTMENT REPRESENTATION
Unless, at the time of any exercise of this Option, the issuance and
delivery of Shares hereunder to the Employee is registered under a
then-effective registration statement under the Securities Act of 1933, as
amended (the "Securities Act"), and complies with all applicable registration
requirements under state securities laws, the Employee shall provide to the
Company, as a condition to the valid exercise of this Option and the delivery of
any certificates representing Shares, appropriate evidence, satisfactory in form
and substance to the Company, that he is acquiring the Shares for investment and
not with a view to the distribution of the Shares or any interest in the Shares,
and a representation to the effect that the Employee shall make no sale or other
disposition of the Shares unless (i) the Company shall have received an opinion
of counsel satisfactory to it in form and substance that such sale or other
disposition may be made without registration under the then-applicable
provisions of the Securities Act, the related rules and regulations of the
Securities and Exchange Commission, and applicable state securities laws and
regulations, or (ii) the sale or other disposition of the Shares shall be
registered under a currently effective registration statement under the
Securities Act of 1933 and complies with all applicable registration
requirements under state securities laws. The certificates representing the
Shares may bear an appropriate legend giving
notice of the foregoing restriction on transfer of the Shares, and any other
restrictive legend deemed necessary or appropriate by the Committee.
12. EMPLOYEE BOUND BY PLAN
The Employee hereby acknowledges receipt of the attached copy of the Plan
and agrees to be bound by all the terms and provisions thereof (as presently in
effect or hereafter amended), and by all decisions and determinations of the
Committee thereunder.
13. MISCELLANEOUS
This Agreement shall be binding upon the heirs, executors, administrators
and successors of the parties. This Agreement constitutes the entire agreement
between the parties with respect to the Option, and supersedes any prior
agreements or documents with respect to the Option. No amendment, alteration,
suspension, discontinuation or termination of this Agreement which may impose
any additional obligation upon the Company or impair the rights of the Employee
with respect to the Option shall be valid unless in each instance such
amendment, alteration, suspension, discontinuation or termination is expressed
in a written instrument duly executed in the name and on behalf of the Company
and by the Employee.
CHARMING SHOPPES, INC.
BY:
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EMPLOYEE:
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(4/1/93)