Exhibit 10.30
EMPLOYMENT AGREEMENT
BETWEEN
STORYBOOK INC.
AND
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Agreement (this "Agreement") dated as of August __, 1998 by and between
Storybook Inc., a Delaware corporation with offices at (the "Company"), and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, an individual residing at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the
"Executive").
It is agreed as follows:
1. EMPLOYMENT. The Company shall employ the Executive as President of
the Company, and the Executive hereby accepts employment with the Company, upon
the terms and conditions set forth on this Agreement for the Employment Period
(as defined below).
2. POSITION AND DUTIES. (a) During the Employment Period, Executive
shall render such services to the Company and its affiliates in her capacity as
President as the Company's board of directors (the "Board") may from time to
time direct and which are commensurate with Executive's title and position.
(b) Executive shall devote all reasonable efforts and her full
business time and attention (except for permitted vacation periods and
reasonable periods of illness or other incapacity) to the business and affairs
of the Company. Executive shall perform her duties and responsibilities to the
best of her abilities in a diligent, trustworthy, businesslike and efficient
manner.
(c) For purposes of this Agreement, "affiliate" shall mean any
corporation or other entity of which the Company (or any corporation or entity
controlling the Company) has at least a 49% equity or voting interest.
(d) The Company shall use its best efforts to cause the
Executive to be elected to the Company's board of directors during the
Employment Period.
3. BASE SALARY AND BENEFITS. (a) During the Employment Period,
Executive's base salary shall be not less than $73,333 per annum (the "Base
Salary") from the Effective Date (as defined below) until February 1, 1999, at
which time such Base Salary shall be increased to one hundred eighty thousand
dollars ($180,000), which salary shall be payable in regular installments in
accordance with the Company's general payroll practices and shall be subject to
customary withholding. In addition, during the Employment Period, Executive
shall be entitled to participate, at the Company's expense (except for such
copayments as are generally required of the Company's managerial employees), in
all of the Company's benefit and retirement programs (including medical benefits
for Executive and her immediate family) for which managerial employees of the
Company are generally eligible. Executive shall be entitled to not less than
three (3) weeks of paid vacation during the first year of employment and four
weeks of vacation thereafter, which if not taken, unless otherwise required by
law, may not be carried forward to any subsequent year unless the Board approves
such vacation carry.
(b) The Company shall reimburse Executive for all reasonable
expenses incurred by her in the course of performing her duties under this
Agreement which are consistent with the Company's policies in effect from time
to time with respect to travel, entertainment and other business expenses,
subject to the Company's requirements with respect to reporting and
documentation of such expenses.
(c) In addition to the Base Salary, the Board may, in its sole
discretion, establish bonus pool and award a bonus from such pool to Executive
following the end of each fiscal year during the Employment Period, based upon
Executive's performance relative to agreed-upon Company operating targets and
the operating results of ▇▇▇▇▇*s Inc. during such year.
4. TERM. (a) The Employment Period shall commence on the Effective Date
(as defined below) and continue until the second anniversary thereof; provided
that the Employment Period shall terminate earlier: (i) upon Executive's
resignation, death or permanent disability or incapacity as determined by the
Board in its good faith ("Disability"); (ii) in accordance with subparagraph (c)
below; or (iii) upon written notice to Executive, at any time, for Cause, as
defined in subparagraph (b) below.
(b) For purposes of this Agreement, "Cause" shall mean (i) a
material breach of this Agreement by Executive that, if capable of being
remedied, Executive fails to remedy within 30 days after written notice, (ii)
any breach of Executive's duty of loyalty to the Company or any of its
affiliates or act of fraud or intentional material dishonesty with respect to
the Company or any of its affiliates, (iii) the commission by Executive of a
felony involving moral turpitude or other act or omission causing material harm
to the standing and reputation of the Company and its affiliates, (iv) failure
by the Executive to report for work for any significant period of time other
than for reasonable personal excuses, (v) willful or repeated refusal by the
Executive to perform such lawful duties as may be delegated or assigned by the
Board and that are commensurate with the Executive's position with the Company,
or (vi) willful misconduct or gross negligence in the performance of Executive's
duties to the Company.
(c) Executive may, at any time during the Employment Period by
written notice to the Company, terminate the Employment Period for "Good Reason"
effective upon such notice. "Good Reason" means (i) a material breach by the
Company of any material provision of this Agreement that the Company fails to
remedy or cease within 15 days after written notice thereof to the Company or
(ii) the relocation of the Company's executive offices to a location outside of
the "Bay Area" in California; it being understood that the historical facilities
of the Storybook Heirlooms business are deemed to be within the Bay Area for
purposes hereof.
5. VOLUNTARY SEPARATION.
(a) In the event of termination of the Employment Period upon
Executive's voluntary resignation, death or Disability, the Company shall pay to
Executive within five days all sums accrued and unpaid to the date of
termination (including unused vacation in accordance with the policies of
▇▇▇▇▇*s Inc. with respect to its executive officers then in effect) and
Executive shall not be entitled to receive her Base Salary, any severance pay or
any fringe
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benefits or bonuses for periods after such termination of the Employment Period.
(b) If the Employment Period is terminated by the Company
without Cause or by the Executive for Good Reason in accordance with Section
4(c), the Company (i) shall continue to pay the Executive at the higher of
$180,000 or the Executive's then-current Base Salary (determined pursuant to
Section 3) at the time of termination for a period of one year following such
termination. The provisions of this Section 5(b) and of Section 5(a) shall
constitute Executive's sole and exclusive remedy in connection with termination
of the Employment Period by the Company without Cause or by the Executive for
Good Reason in accordance with Section 4(c). If the Company fails to perform its
obligations under Section 5(a) and this Section 5(b) after notice from the
Executive and 10 days for the Company to cure, Executive's remedies shall not be
limited by this Agreement. ▇▇▇▇▇*s Inc. hereby unconditionally guarantees the
obligations of the Company under this Section 5(b).
6. CONFIDENTIAL INFORMATION. Executive acknowledges that the
information, trade secrets, observations, confidential knowledge and data
obtained by her while employed by the Company concerning the business, new,
planned or existing products and services, or affairs of the Company, its
customers or any affiliate of the Company ("Confidential Information") are the
property of the Company or such affiliate. Therefore, the Executive agrees that
she shall not, at any time during her employment under this Agreement and for a
period of two years subsequent thereto, disclose to any third party except in
the performance of her duties hereunder or as may be required by law, any
Confidential Information except for such information which has become publicly
available other than by an act or omission of the Executive. Executive shall
deliver to the Company at the termination of the Employment Period, or at any
other time the Company may request, all memoranda, notes, plans, records,
reports, computer files, printouts and software and other documents and data
(and all copies thereof) relating to the Confidential Information, work product
or the business of the Company or any affiliate which she may then possess or
have under her control.
7. NON-COMPETE; NON-SOLICITATION.
(a) Executive agrees that during the Employment Period and for
a period of 18 months from the termination thereof (the "Non-Competition
Period"), she will not directly, either for her own account or for the benefit
of any person, firm or corporation, engage in any business activity competitive
with the retail, mail order or team sales soccer businesses of the Company (a
"Competing Business Activity"). For purposes hereof, Competing Business
Activities shall mean direct marketing of clothing for children or teen-agers.
(b) Executive agrees that during the Non-Competition Period,
Executive shall not discuss or accept any relationship, whether as a consultant,
representative, employee, executive, officer, director, manager or otherwise,
with any person, firm or corporation which is engaged in a Competing Business
Activity.
(c) During the Non-Competition Period, Executive shall not
directly or indirectly own or be a stockholder, partner of, or otherwise
participate in any company that is engaged in a Competing Business Activity.
Notwithstanding the above, Executive may hold up to a one percent (1%) interest
in any publicly held or traded company and shall have an unlimited
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right to invest in any mutual fund which is publicly traded or managed by a
major financial institution.
(d) During the Non-Competition Period, Executive shall not
directly or indirectly through another person or entity (i) induce or attempt to
induce any employee of the Company or any affiliate to leave the employ of the
Company or such affiliate, or in any way interfere with the relationship between
the Company or any affiliate and any employee thereof, (ii) hire any person who
was an employee of the Company or any affiliate at any time during the
Employment Period or (iii) induce or attempt to induce any customer, supplier,
licensee, licensor, franchisee, consultant or other business relation of the
Company or affiliate to cease doing business with the Company or such affiliate,
or in any way interfere with the relationship between any such customer,
supplier, licensee, licensor, franchisee, consultant or business relation and
the Company or any affiliate (including, without limitation, making any negative
statements or communications about the Company or its affiliates).
(e) During the Non-Competition Period, Executive shall inform
any prospective new employer or associate prior to accepting any employment or
any business relationship of the existence of this Agreement and provide such
employer or associate with a copy of this Agreement.
(f) In the event any covenant made in this Agreement shall be
more restrictive than permitted by applicable law, it shall be limited to the
extent which is so permitted. Nothing in this Agreement shall be construed as to
prevent the Company from pursuing any and all remedies available to it for the
breach or threatened breach of covenants made in this Agreement, including
recovery of money damages or temporary or permanent injunctive relief.
Accordingly, Executive acknowledges that the remedy at law for breach of the
provisions of this Agreement may be inadequate and that, in addition to any
other remedy the Company may have, it shall be entitled to an injunction
restraining any breach or threatened breach, without any bond or other security
being required and without the necessity of showing actual damages.
(g) Notwithstanding anything to the contrary contained in this
Section 7, nothing contained in this Section 7 shall be construed so as to
prohibit the Executive from being employed by a company or entity that engages
in a Competing Business Activity so long as Executive is not responsible for,
does not report to or have any involvement, whether direct or indirect, with any
division or unit of said company engaged in such Competing Business Activity.
(h) Notwithstanding anything to the contrary contained in this
Section 7, the Non-Competition Period shall not be construed to extend beyond
the date of termination of the Employment Period if the Employment Period has
terminated by the Company without Cause or by the Executive for Good Reason.
8. NOTICES. Any notice or other communication under this Agreement
shall be in writing and shall be considered given when delivered by hand, when
telecopied upon confirmation of receipt or one day after being mailed by
registered mail, return receipt requested, to the parties at the addresses set
forth below (or at such other address as a party may specify by notice to the
other in accordance with this provision):
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If to Executive:
at the address written above
If to the Company:
Storybook Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chairman
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇*s Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
9. EXECUTIVE'S REPRESENTATIONS. Executive hereby represents and
warrants to the Company that (i) the execution, delivery and performance of this
Agreement by Executive do not and shall not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which Executive is bound, (ii)
Executive is not a party to or bound by any employment agreement, noncompete
agreement or confidentiality agreement with any other person or entity, and
(iii) upon the execution and delivery of this Agreement by the Company, this
Agreement shall be the valid and binding obligation of Executive, enforceable in
accordance with its terms. Executive hereby acknowledges and represents that she
has consulted with independent legal counsel regarding her rights and
obligations under this Agreement or has had an opportunity to do so and that she
fully understands the terms and conditions contained herein.
10. CONDITION PRECEDENT AND EFFECTIVENESS. The consummation of the
Company's acquisition of substantially all the assets of the Storybook Heirlooms
business is a condition precedent to the Company's obligations hereunder. As
used herein, "Effective Date" shall mean the date such acquisition is
consummated.
11. STOCK OPTIONS. On the Effective Date, the Company and the Executive
shall enter into the Storybook Stock Option Agreement annexed hereto as EXHIBIT
A. In addition, the ▇▇▇▇▇*s Inc. shall grant to the Executive options to
purchase shares of ▇▇▇▇▇*s Inc. common stock under the ▇▇▇▇▇*s Inc. Amended and
Restated 1996 Stock Incentive Plan (the "Plan") in accordance with the schedule
set forth below with the vesting terms set forth below and at an exercise price
equal to the closing price of ▇▇▇▇▇*s Inc. common stock on the date of grant,
which options shall be subject to the standard terms and conditions applicable
to such ▇▇▇▇▇*s Inc. stock options. The ▇▇▇▇▇*s Inc. common stock issuable under
the Plan is registered for resale under the Securities Act of 1933 and there are
no restrictions under the Plan on
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transferability of such shares. Each of the options granted hereunder shall be
treated as an "incentive stock option" to the extent permissible by law.
Number of
Grant Date Options Vesting
------------------- --------- ------------------------------------
Effective Date 50,000 12.5% on each of the first eight
six-month anniversaries of the
Effective Date
the date of the 5,000 100% 6 months from the date of grant
next ▇▇▇▇▇*s Inc.
stockholders' meeting
12. MISCELLANEOUS.
(a) This Agreement may not be changed or terminated orally.
(b) Executive may not assign any of her rights or delegate any
of her duties under this Agreement. The Company may assign any or all of its
rights under this Agreement to any subsequent owner of the Company's business or
any affiliate, and the assignee shall have the right to enforce this Agreement
to the same extent as the Company.
(c) No waiver of any term or condition of this Agreement shall
be deemed to be a waiver of any subsequent breach of that term or condition or
any breach of any other term or condition of this Agreement.
Any waiver must be in writing.
(d) If any provision of this Agreement would be deemed invalid
or unenforceable for any reason, including, without limitation, because of its
geographic or business scope or duration, such provision shall be construed in
such a way as to make it valid and enforceable to the maximum extent possible.
Any invalidity or unenforceability of any provision in this Agreement shall not
affect or render invalid or unenforceable any other provision of this Agreement
or any other agreement or instrument.
(e) This Agreement shall be governed by and construed in
accordance with the law of the State of New York, without giving effect to
principles or rules of choice or conflicts of laws of such State or any such
other State in which any action may be brought relating to this Agreement.
(f) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
be considered one and the same Agreement.
(g) This Agreement contains a complete statement of all the
arrangements between the parties with respect to their subject matter, supersede
any previous agreements between them relating to that subject matter, and cannot
be amended, modified or terminated except in a written document executed by all
the parties hereto.
[SIGNATURE PAGE FOLLOWS]
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[SIGNATURE PAGE TO EMPLOYMENT AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
STORYBOOK INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President--
Development and
Legal Affairs
▇▇▇▇▇*s Inc. (as to Sections 5(b) and 11)
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President--
Development and
Legal Affairs
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
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EXHIBIT A TO EMPLOYMENT AGREEMENT
STOCK OPTION AGREEMENT
BETWEEN
STORYBOOK INC. AND ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
DATED SEPTEMBER __, 1998
Storybook Inc., a Delaware corporation (the "Company"), hereby grants
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "Optionee"), residing at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
an option (the "Option") to purchase from the Company that number of shares of
common stock ("Common Stock") of the Company equal to the product of .125 and
the number of Parent Shares (as defined below) (subject to adjustment pursuant
to paragraph 5 below) (the "Option Shares") at the Exercise Price per share on
the terms and conditions set forth in this stock option agreement (this
"Agreement"). "Parent Shares" means the number of shares of Common Stock issued
to ▇▇▇▇▇*s Inc. upon organization of the Company (the "Parent Shares").
1. EXERCISABILITY. Subject to the provisions of paragraphs 4(b) and 5
below, the Optionee may exercise the Option on and after the second anniversary
of the date hereof; in no event, however, may the Option be exercised later than
the tenth anniversary of the date hereof.
2. NONTRANSFERABILITY. The Option shall not be transferable by the
Optionee otherwise than by will or by the laws of descent and distribution.
During the lifetime of the Optionee, the Option shall be exercisable only by the
Optionee or her legal representative.
3. METHOD OF EXERCISE.
(a) The Option is exercisable with respect to all, or from time to time
with respect to any portion, of the Option Shares then permitted to be purchased
under this Agreement by delivering written notice of exercise of the Option, in
the form prescribed by the board of directors of the Company (the "Board"), to
the Chairman of the Board. Each such notice shall specify the number of Option
Shares with respect to which the Option is being exercised, and shall be
accompanied by payment in full, in cash or by certified check, of the purchase
price of such Option Shares. The Company may require the person exercising the
Option to pay the Company an amount sufficient to satisfy all applicable
withholding tax requirements prior to the delivery of any stock certificates
representing Option Shares. If the person exercising the Option so requests,
Option Shares purchased may be issued in the name of the Optionee and another
person jointly with right of survivorship.
(b) If, at the time of an exercise of the Option, a registration
statement under the Securities Act of 1933 is not effective with respect to the
Option Shares issuable upon such exercise, and the Company believes the Option
Shares can be issued pursuant to an exemption from registration, it shall be a
condition precedent to the effective exercise of the Option that the person
exercising the Option give the Company a written representation and undertaking,
reasonable under the circumstances and reasonably satisfactory in form and
substance to the Company, to assure compliance by the Company, on terms
acceptable to the Company, with the provisions of the Securities Act of 1933 and
any other applicable legal requirements.
(c) The Company may place upon the face of any stock certificates
representing Option Shares issued upon exercise of the Option appropriate
legends referring to the provisions of any representation or undertaking
referred to in this Agreement and to assure compliance with the
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Securities Act of 1933.
4. EFFECT OF TERMINATION OF EMPLOYMENT.
(a) If the Optionee's employment with the Company terminates as a
result of the Optionee's death or as a result of the Optionee's disability in
accordance with the employment agreement dated as of August __, 1998 between the
Company and the Optionee (the "Employment Agreement"), or if the Company
terminates the Optionee's employment with the Company other than for Cause (as
defined in the Employment Agreement), or if the Company fails to renew the
Employment Agreement other than for Cause, or if the Optionee terminates her
employment for "Good Reason" (as defined in the Employment Agreement) or if the
Optionee fails to renew the Employment Agreement other than for Good Reason in
accordance with the Employment Agreement (the foregoing circumstances are
collectively referred to as "Paragraph 4(a) Termination Circumstances"), the
Option shall continue to become exerciseable in accordance with paragraph 1
hereof.
(b) If the Optionee's employment with the Company terminates for any
reason other than in a Paragraph 4(a) Termination Circumstance, the portion of
the Option, if any, that was not yet exercisable pursuant to paragraph 1 hereof
shall not thereafter become exercisable.
5. ADJUSTMENTS.
(a) If there is any stock dividend, stock split or combination of
shares of Common Stock or similar recapitalization or restructuring (an
"Adjustment Event"), the number and kind of shares then subject to this
Agreement shall be proportionately and appropriately adjusted as determined in
good faith by the board of directors of the Company; no change shall be made in
the aggregate purchase price to be paid for all Option Shares subject to the
Option, but the aggregate purchase price shall be allocated among all Option
Shares after giving effect to such adjustment. Any such adjustment shall be the
same as made with respect to options issued under the Plan. Prior to the
exercise of Option in whole or in part, the Company shall not issue any shares
of Common Stock, other than (i) in an Adjustment Event, (ii) for consideration
determined in good faith by the Board to be fair, (iii) in connection with a
Proposed Transaction (as defined below), (iv) in connection with a public
offering of Common Stock or (v) in a transaction treated by the Company as if it
were an Adjustment Event and the Option is adjusted in accordance therewith,
without the consent of Optionee, which consent shall not be unreasonably
withheld unless such issuance is treated by the Company as if it were an
Adjustment Event and the Option is adjusted in accordance therewith.
(b) In the event of a Change in Control (as defined in the ▇▇▇▇▇*s Inc.
Amended and Restated 1996 Stock Incentive Plan (the "Plan"), the Option (and the
Option Shares) shall be treated by the Company as if the Option were an option
granted under the Plan.
(c) In the event of a sale of all or substantially all of the assets of
the Company, the Option shall become immediately exercisable. In the event of
such a sale, and if Optionee has exercised the Option, the Company shall
distribute the proceeds of such sale on a pro-rata basis to its stockholders,
including Optionee (to the extent Optionee is a stockholder).
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6. NO RIGHTS. Nothing in the Option shall confer on the Optionee any
right to continue in the employ of the Company or any affiliate thereof or to
continue to perform services for the Company or interfere in any way with the
right of the Company to terminate the Optionee's employment or services at any
time or give any claim by the Optionee against the Company in respect of any
such termination (other than any claim expressly set forth in the Employment
Agreement). The Optionee shall not, by virtue of holding the Option, be entitled
to any rights of a stockholder in the Company.
7. ADMINISTRATIVE REGULATIONS. All decisions of the Board that are made
in good faith upon any question arising under the Option, shall be conclusive
and binding upon the Optionee and any person to whom rights under this Agreement
may have been transferred by will or by the laws of descent and distribution.
8. NOTICES. All notices, requests and documents to be given under this
Agreement shall be in writing and shall be either delivered personally or mailed
by first-class registered or certified mail, return receipt requested, to the
appropriate party.
9. ACCEPTANCE BY OPTIONEE. The acceptance by the Optionee of the Option
constitutes acceptance of and agreement to all the terms and conditions
contained in this Agreement.
10. GOVERNING LAW. This Agreement contains a complete statement of all
the terms of the Option, cannot be changed or terminated orally, and shall be
governed by the law of the State of Delaware applicable to agreements made and
to be performed in Delaware.
11. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
be considered one and the same Agreement.
12. COMPLETE STATEMENT. This Agreement contains a complete statement of
all the arrangements between the parties with respect to their subject matter,
supersede any previous agreements between them relating to that subject matter,
and cannot be amended, modified or terminated except in a written document
executed by all the parties hereto.
13. TAG-ALONG; DRAG-ALONG; FIRST REFUSAL. The provisions of this
Section 13 shall become effective only following exercise of the Option by the
Optionee.
(a) DRAG ALONG. If ▇▇▇▇▇*s Inc. proposes a transaction which would
cause the sale or other transfer for consideration by ▇▇▇▇▇*s Inc. of an amount
of Common Stock of the Company, which, if completed, would result in a person or
entity (other than ▇▇▇▇▇*s Inc. or its direct or indirect subsidiaries or
affiliates) acquiring more than 50% of the outstanding Common Stock of the
Company (a "Proposed Transaction"), then ▇▇▇▇▇*s Inc. shall give written notice
(a "Transaction Notice") to the Optionee describing the material terms of the
Proposed Transaction. ▇▇▇▇▇*s Inc. shall be entitled to require the Optionee to
include in such Transaction all of such Optionee's shares of Common Stock;
provided, however, that no Optionee shall be required to enter into any Proposed
Transaction pursuant to this Section 13(a) unless the terms and conditions of
the Proposed Transaction provide that such Optionee's liability will be several
and not joint and several, and (ii) such Optionee's liability will be capped at
the market value,
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determined at the of receipt, of the net pre-tax proceeds to be received by such
Optionee pursuant to the terms of the Proposed Transaction.
(b) TAG ALONG. In connection with any Proposed Transaction, the
Optionee shall have a right to include in such Proposed Transaction up to the
number of Option Shares computed by multiplying (i) the total number of shares
of Common Stock of the Company proposed to be sold or otherwise disposed of by
▇▇▇▇▇*s Inc. pursuant to the Proposed Transaction by (ii) a fraction, the
numerator of which shall equal the aggregate number of Option Shares owned by
such Optionee and the denominator of which shall equal the number of shares of
the Common Stock of the Company issued and outstanding on a fully diluted basis
on such date. Any Optionee desiring to exercise her or her tag-along right must
deliver a written of exercise to ▇▇▇▇▇*s Inc. within 10 days after the date
▇▇▇▇▇*s Inc. gives the Notice to such Optionee.
(c) SAME TERMS AND CONDITIONS. In the case of both the drag-along
described in Section 13(a) and the tag-along rights described in 13(b), a sale
of Option Shares by Optionee shall be the same price per share (in both amount
and purchase medium) applicable to the sale of the shares of Common Stock of the
Company by ▇▇▇▇▇*s Inc. and otherwise shall be on terms and conditions at least
as favorable as those applicable to ▇▇▇▇▇*s Inc.
(d) If Optionee shall receive an offer to purchase its Option Shares or
if Optionee shall wish to enter into an agreement for the sale of such Option
Shares, Optionee shall first give written notice to ▇▇▇▇▇*s Inc. setting forth
the name of the proposed purchaser, the purchase price, and all terms and
conditions of the proposed sale. Within twenty (20) calendar days following the
delivery or mailing of said notice, ▇▇▇▇▇*s Inc. or its designee shall have the
right to purchase the Option Shares upon the same terms and conditions. Said
right shall be exercised by delivering or mailing such election to Optionee
prior to the expiration of said calendar days. If ▇▇▇▇▇*s Inc. shall not elect
to make such purchase within said time, and the sale is made in accordance with
the terms set forth in the notice, Optionee shall not have a right to purchase
upon any resale by the person who acquires such Option Shares from Optionee..
14. ANNEX 1. Attached to this Agreement as ANNEX 1 is a statement of
(i) the proposed list of assets to be owned by the Company following the
acquisition by the Company and its affiliates of assets from the estate of
Fulcrum Direct Inc.; and (ii) the proposed initial equity structure of the
Company. The Company or ▇▇▇▇▇*s Inc. may modify this Annex 1 at any time prior
to the consummation of the Acquisition provided that such modification does not
materially affect the economic interests of the Optionee.
15. AGREEMENT TO NEGOTIATE. Without specific obligation, the Company
and the Optionee agree to, within 30 days of the second anniversary of this
Agreement, negotiate in good faith mechanisms to increase the liquidity of the
Option, recognizing the concerns of the Optionee, the Company and the Company's
stockholders. In the event that ▇▇▇▇▇*s Inc. fails to negotiate in good faith
and Optionee subsequently terminates its employment with the Company, the
Optionee shall tehreupon be released from its obligations under Section 7 of the
Employment Agreement.
[SIGNATURE PAGE FOLLOWS]
4
[SIGNATURE PAGE TO STOCK OPTION AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
STORYBOOK INC.
By:
-----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President--
Development and
Legal Affairs
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------
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ANNEX 1
ASSETS TO BE ACQUIRED
Storybook Inc. ▇▇▇▇▇*s Properties Inc. ▇▇▇▇▇*s Interactive Company
---------------------------------- ----------------------- ---------------------------
Customer Lists All Trademarks Domain Names
(including Storybook Heirlooms
Zoe, After the Stork, Playclothes
and Just for Kids list)
Leases
Personal Property and Equipment
Storybook Inventory
Zoe Inventory
All Other Assets (other than
trademarks and domain names)
In addition, ▇▇▇▇▇*s Properties Inc. shall license to Storybook Inc. on a
perpetual, irrevocable basis the right to use the Storybook Heirlooms trademark
pursuant to a customary trademark license agreement to be entered into
concurrently with or subsequent to the Effective Date (as defined in the
Employment Agreement).
EQUITY STRUCTURE OF STORYBOOK INC.
Number of Authorized Shares: 1,000 shares of common stock
Number of Shares to be Issued to ▇▇▇▇▇*s Inc. upon Organization: 80
Number of Shares Reserved for Issuance to DeMuesy and Bruml: 20 (subject to
adjustment based on stock splits, stock dividends, recapitalizations, etc.)
6