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EXHIBIT 10.15
EXECUTION
STOCK OPTION AGREEMENT UNDER THE
▇▇▇▇▇▇▇▇'▇, INC. 1996 EXECUTIVE INCENTIVE
AND NON-QUALIFIED STOCK OPTION PLAN
THIS STOCK OPTION AGREEMENT ("Agreement") is made and entered into
as of this llth day of June, 1996, by and among ▇▇▇▇▇▇▇▇'▇, INC. ("Kirkland's"),
each of the other undersigned corporations (such corporations, together with
Kirkland's, being herein referred to individually as the "Company" and
collectively as the "Companies"), and ▇▇▇▇ ▇▇▇▇▇▇▇▇ (the "Optionee").
W I T N E S S E T H:
WHEREAS, the Companies have agreed to grant to the Optionee options
to purchase shares of the Companies, voting common stock, each with a par value
$0.01 (the "Common Stock"), subject to the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations contained herein, and intending to be legally bound, the parties,
subject to the terms and conditions set forth herein, agree as follows:
1. Grant of Option. Subject to the terms and conditions set forth
herein, the Companies grant to the Optionee an option (the "Option") to purchase
Units equal to an aggregate of two percent (2%) of the Common Stock of each of
the Companies (the "Shares"). Based on the capitalization of each of the
Companies as of the date hereof, Units representing two percent (2%) of the
fully diluted outstanding Common Stock of each Company is represented by 2,381
shares of Common Stock in each Company.
2. Nature of the Option. The Option is intended to be an "incentive
stock option," as that term is described by Section 422 of the Internal Revenue
Code of 1986, as amended.
3. Exercise Price. The exercise price shall be forty-five cents
($0.45) per Unit. Payment of the aggregate exercise price shall entitle the
Optionee to receive the Aggregate Number of shares of Common Stock in each
of the Companies. The aggregate exercise price shall be allocated among the
Companies according to their Percentage Values.
4. Exercise of Option. The Option shall be exercisable during its
term only in accordance with the terms and provisions of this Agreement as
follows:
(a) Right to Exercise. The Option shall vest and be
exercisable as follows:
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(1) The Option shall become 100% vested 24 hours prior
to the closing of an Asset Sale, Public offering, or Stock Sale, Provided that
such vesting shall occur only if optionee shall have been employed by the
Companies at anytime within the three (3) month period prior to such event, or,
if within the twelve (12) months prior to such event, optionee shall have died
or become disabled while employed by the Companies. If not exercised at or in
connection with such closing of the Asset Sale, Public Offering or Stock Sale,
the Option shall terminate immediately following such closing; provided that if
all Shareholders do not sell their Common Stock in the Public Offering or Stock
Sale, the Option will remain exercisable in accordance with the terms of the
Option Plan.
(2) The Option shall be exercisable in whole and not in
part.
(3) The Option may be terminated at any time by
agreement between the Optionee and the Companies.
(4) The Option shall terminate upon the closing of an
initial public offering of Common Stock that does not qualify as a Public
Offering as defined herein.
(b) Method of Exercise. The Option shall be exercisable by
written notice which shall state the election to exercise the Option, the number
of Shares in respect of which this option is being exercised and such other
representations and agreements as to the Optionees investment intent with
respect to such interest as may be required by the Companies hereunder. Such
written notice shall be signed by the Optionee and shall be delivered in person
or by certified mail to the Chairman of the Board or such other person as may be
designated by the Board. The written notice shall be accompanied by payment of
the purchase price. Payment of the purchase price shall be by check or such
other consideration or method of payment as may be authorized by the Board.
(c) Restrictions on Exercise. The option may not be exercised
if the issuance of Shares upon such exercise would constitute a violation of any
applicable federal or state securities laws or other laws or regulations. As a
condition to the exercise of the Option, the Companies may require the optionee
to enter into a Stock Purchase Agreement and to make any representation and
warranty to the Companies as may be required by or advisable under any
applicable law or regulation or as may be reasonably requested by the Board.
(d) Shareholders Agreement. The shares of Common Stock
purchased upon exercise of the Option shall be subject to the terms and
conditions of the Shareholders Agreement.
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5. Anti-Dilution Adjustments to Aggregate Number. Under certain
conditions, the Aggregate Number is subject to adjustment as set forth herein.
The Aggregate Number shall be subject to adjustment from time to time as follows
and thereafter as adjusted shall be deemed to be the Aggregate Number hereunder.
(a) In case at any time or from time to time any of the
Companies shall:
(1) take a record of the holders of its Common Stock for
the purpose of entitling them to receive a dividend payable in, or other
distribution of, Common Stock;
(2) subdivide its outstanding shares of Common Stock
into a larger number of shares of Common Stock; or
(3) combine its outstanding shares of Common Stock into
a smaller number of shares of Common Stock;
then the Aggregate Number in effect immediately prior thereto shall be adjusted
so that the Optionee shall thereafter be entitled to receive, upon exercise of
the Option, the number of shares of Common Stock that such holder would have
been entitled to receive after the occurrence of such event had the option been
exercised immediately prior to the occurrence of such event.
(b) In case at any time or from time to time any of the
Companies shall take a record of the holders of its Common Stock for the purpose
of entitling them to receive any dividend or other distribution (collectively, a
"Distribution") of:
(4) cash (other than dividends payable out of earnings
or any surplus legally available for the payment of dividends under the laws of
the states of incorporation of the Companies),
(5) any evidences of its indebtedness, any shares of its
capital stock (other than additional shares of Common Stock or Convertible
Securities) or any other securities or property of any nature whatsoever (other
than cash), or
(6) any options or warrants or other rights to subscribe
for or purchase any of the following: any evidences of its indebtedness (other
than Convertible Securities), any shares of its capital stock (other than
additional shares of Common Stock or Convertible Securities) or any other
securities or property of any nature whatsoever,
then the Optionee shall be entitled to receive upon the exercise of the Option
at any time on or after the taking of such record the number of shares of Common
Stock to be received upon exercise of the Option determined as stated herein
and, in addition and without further payment,
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the cash, stock, securities, other property, options, warrants and/or other
rights to which the optionee would have been entitled by way of the Distribution
and subsequent dividends and distributions if such holder (x) had exercised the
Option immediately prior to such Distribution, and (y) had retained the
Distribution in respect of the Common Stock and all subsequent dividends and
distributions of any nature whatsoever in respect of any stock or securities
paid as dividends and distributions and originating directly or indirectly from
such Common Stock. A reclassification of the Common Stock into shares of Common
Stock and shares of any other class of stock shall be deemed a distribution by
the Companies to the holders of the Common Stock of such shares of such other
class of stock within the meaning of this paragraph (b) and, if the outstanding
shares of Common Stock shall be changed into a larger or smaller number of
shares of Common Stock as a part of such reclassification, such event shall be
deemed a subdivision or combination, as the case may be, of the outstanding
shares of Common Stock within the meaning of paragraph (a) of this Section 5.
(c) In case at any time or from time to time prior to a public
offering of Common Stock, any of the Companies shall (except as hereinafter
provided) issue or sell any additional shares of Common Stock at a price per
share which is less than the Fair Market Value Per Share, then the Aggregate
Number in effect immediately prior thereto shall be adjusted immediately so that
the Aggregate Number thereafter shall be an amount equal to the product of (x)
the percentage represented by the fraction, the numerator of which is such
Aggregate Number in effect immediately prior to such issuance or sale and the
denominator of which is the total outstanding shares of Fully Diluted Common
Stock (as calculated immediately before such issuance or sale) and (y) the total
number of shares of Fully Diluted Common Stock (as calculated immediately after
such issuance or sale). The provisions of this paragraph (c) shall not apply to
any issuance of additional shares of Common Stock for which an adjustment is
provided under Section 5(a). No adjustment of the Aggregate Number shall be made
under this Section 5(c) upon the issuance of any additional shares of Common
Stock which are issued pursuant to the exercise of any options or Warrants, or
upon exercise of any warrants or other subscription or purchase rights if an
adjustment shall previously have been made (or if no adjustment shall have been
required) upon issuance of such warrants or other rights pursuant to Section
5(d).
(d) In case at any time or from time to time prior to an
initial public offering of Common Stock, the Companies shall (except as
hereinafter provided) take a record of the holders of its Common Stock for the
purpose of entitling them to receive a distribution of, or shall in any manner
issue or sell, any warrants or other rights to subscribe for or purchase (x) any
shares of Common Stock or (y) any Convertible Securities, whether or not the
rights to subscribe, purchase, exchange or convert thereunder are immediately
exercisable, at a purchase price per share of Common Stock which is less than
the Fair Market Value Per Share, then the Aggregate Number in effect immediately
prior thereto shall be adjusted immediately so that the Aggregate Number
thereafter shall be an amount equal to the product of (x) the percentage
represented by the fraction, the numerator of which is such Aggregate Number in
effect immediately prior to such distribution, issuance or sale and the
denominator of which is the total outstanding shares of Fully Diluted Common
Stock (as calculated immediately before such distribution, issuance or
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sale) and (y) the total number of shares of Fully Diluted Common Stock
outstanding (as calculated immediately after such issuance or sale).
(e) In case at any time or from time to time prior to an
initial public offering of Common Stock, the Companies shall take a record of
the holders of its Common Stock for the purpose of entitling them to receive a
distribution of, or shall in any manner issue or sell, Convertible Securities,
whether or not the rights to exchange or convert thereunder are immediately
exercisable, at an exercise price per share of Common Stock which is less than
the Fair Market Value Per Share, then the Aggregate Number in effect immediately
prior thereto shall be adjusted immediately so that the Aggregate Number
thereafter shall be an amount equal to the product of (x) the percentage
represented by the fraction, the numerator of which is such Aggregate Number in
effect prior to such issuance or sale and the denominator of which is the total
outstanding shares of Fully Diluted Common Stock (as calculated immediately
before such issuance or sale) and (y) the total number of shares of Fully
Diluted Common Stock outstanding (as calculated immediately after such issuance
or sale). No adjustment of the Aggregate Number shall be made under this Section
5(e) upon the issuance of any Convertible Securities which are issued pursuant
to the exercise of any warrants or other subscription or purchase rights if an
adjustment shall previously have been made or if no such adjustment shall have
been required upon the issuance of such warrants or other rights pursuant to
Section 5(e).
(f) Upon the expiration or termination of any of the Warrants,
the Aggregate Number in effect prior to the expiration or termination of any
such Warrants shall be adjusted immediately so that the Aggregate Number in
effect immediately after such expiration or termination shall be an amount equal
to the product of (x) the percentage represented by the fraction, the numerator
of which is such Aggregate Number in effect prior to such expiration or
termination and the denominator of which is the total outstanding shares of
Fully Diluted Common Stock (as calculated immediately before such expiration or
termination) and (y) the total number of shares of Fully Diluted Common Stock
outstanding (as calculated immediately after such expiration or termination).
(g) The following provisions shall be applicable to the making
of adjustments of the Aggregate Number hereinbefore provided for in this Section
5:
(7) The sale or other disposition of any issued shares
of Common Stock owned or held by or for the account of the Companies (also
referred to as treasury stock) shall be deemed an issuance thereof for purposes
of this Section 5.
(8) The adjustments required by the preceding paragraphs
of this Section 5 shall be made whenever and, as often as any specified event
requiring an adjustment shall occur, except as expressly provided herein. For
purpose of any adjustment, any specified event shall be deemed to have occurred
at the close of business on the date of its occurrence.
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(9) In computing adjustments under this Section 5,
fractional interests in Common Stock shall be taken into account to the nearest
one-thousandth (.001) of a share and shall be aggregated until they equal one
whole share.
(10) If any of the Companies shall take a record of the
holders of the Common Stock for the purpose of entitling them to receive a
dividend, distribution, warrant or subscription or purchase rights under
Sections 5(a) through 5(e) hereof, but abandon its plan to pay or deliver such
dividend, distribution, warrants, subscription or purchase rights, then no
adjustment shall be required by reason of the taking of such record and any such
adjustment previously made in respect thereof shall be rescinded and annulled.
(11) Notwithstanding anything herein to the contrary, no
adjustment shall be made to the Aggregate Number as a result of the issuance of
(A) options similar to the Option granted pursuant to similar option agreements
dated the date hereof among the Companies and other management shareholders of
the Companies, or (B) shares of Common Stock issued upon exercise of such other
similar options, or (C) shares of Common Stock issued upon conversion of the
Warrants.
(12) Upon the expiration or termination of any of the
warrants or other rights or options referred to in Section 5(d) above or the
Convertible Securities referred to in Section 5(e) above, the Aggregate Number
after the expiration or termination of any such warrants, rights, options or
Convertible Securities, the issuance of which caused an adjustment to the
Aggregate Number, shall be readjusted to such Aggregate Number as would have
been obtained had the adjustment made upon the issuance of such warrants,
rights, options or Convertible Securities, been made upon the basis of the
issuance of only the number of shares of Common Stock actually issued upon the
exercise of such warrants, options or rights, upon the conversion or exchange of
such securities or upon the exercise of the options or rights related to such
securities and subsequent conversion or exchange thereof.
(13) For purposes of Sections 5(c), (d) and (e) hereof,
the date as of which the applicable Fair Market Value Per Share shall be
computed shall be the date of actual issuance of such additional shares of
Common Stock, warrants or Convertible Securities, as applicable.
(14) The consideration for any additional shares of
Common Stock issuable pursuant to any options, warrants or other rights to
subscribe for or purchase the same shall be the consideration received or
receivable by the Companies for issuing such options, warrants or other rights,
plus the additional consideration payable to the Companies upon the exercise of
such options, warrants or other rights. The consideration for any additional
shares of Common Stock issuable pursuant to the terms of any Convertible
Securities shall be the consideration received or receivable by the Companies
for issuing any options, warrants or other rights to subscribe for or purchase
such Convertible Securities, plus the consideration paid or payable to the
Companies in respect of the subscription for or purchase of such Convertible
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Securities, plus the additional consideration, if any, payable to the Companies
upon the exercise of the right of conversion, exercise or exchange of such
Convertible Securities. In case of the issuance at any time of any additional
shares of Common Stock or Convertible Securities in payment or satisfaction of
any dividend upon any class of stock other than Common Stock, the Companies
shall be deemed to have received for such additional shares of Common Stock or
Convertible Securities a consideration equal to the amount of such dividend so
paid or satisfied.
(h) If any event occurs as to which the other provisions of
this Section 5 are not strictly applicable but the lack of any provision for the
exercise of the rights of a holder of Options would not fairly protect the
purchase rights of such holder in accordance with the essential intent and
principles of such provisions, or, if strictly applicable, would not fairly
protect the conversion rights of such holder in accordance with the essential
intent and principles of such provisions, then the Companies shall appoint a
firm of independent certified public accountants in the United States (which may
be the regular auditors of the Companies) of recognized national standing in the
United States, which shall give their opinion as to the adjustments, if any,
necessary to preserve, without dilution, on a basis consistent with the
essential intent and principles established in the other provisions of this
Section 5, the exercise rights of the optionee. Upon receipt of such opinion,
the Companies shall forthwith make the adjustments described therein.
(i) Within forty-five (45) days after the end of each fiscal
quarter during which an event - occurred that resulted in an adjustment pursuant
to this Section 5, and at any time upon the request of the optionee, the
Companies shall cause to be promptly mailed to the Optionee by first-class mail,
postage prepaid, notice of each adjustment or adjustments to the Aggregate
Number effected since the date of the last such notice and a certificate of
Kirkland's Chief Financial Officer or, in the case of any such notice delivered
within forty-five (45) days after the end of a fiscal year, a firm of
independent public accountants in the United States selected by the Companies
(who may be the regular accountants employed by the Companies), in each case,
setting forth the Aggregate Number after such adjustment, a brief statement of
the facts requiring such adjustment and the computation by which such adjustment
was made. The fees and expenses of such accountants shall be paid by the
Companies.
(j) The occurrence of a single event shall not trigger an
adjustment of the Aggregate Number under more than one paragraph of this Section
5.
(k) The expiration or other termination of any of the Warrants
shall trigger an adjustment to the Aggregate Number so that the Aggregate Number
after such adjustment is the same as it would have been had the initial
Aggregate Number set forth in Section 1 hereof been calculated without taking
such expired or terminated Warrants into account.
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(l) No adjustment shall be made to the Aggregate Number upon
issuance of Employee Options, Warrants or Contingent Warrants, or the issuance
of Common Stock upon exercise thereof.
(m) Notwithstanding any provision to the contrary herein, any
combination or consolidation of the Companies or any transfer of shares
permitted under Section 2 of the Stockholders Agreement, in either case, which
does not materially alter the aggregate ultimate ownership of the Companies
shall. not constitute an Asset Sale or Stock Sale as defined in Section 9
hereof. In the event of any such combination or consolidation, this Option shall
be exercisable into the same number of shares of Common Stock of such combined
or consolidated Company as the number of shares of Common Stock of each of the
Companies into which it was exercisable immediately prior to such combination or
consolidation.
6. Investment Representations. Unless the Shares have been
registered under the Act, in connection with the acquisition of this option, the
optionee represents and warrants as follows:
(a) The Optionee is acquiring this Option, and upon exercise
of this option, he will be acquiring the Shares for investment for his own
account, not as a nominee or agent, and not with a view to, or for resale in
connection with, any distribution thereof, except as may be specifically
contemplated and disclosed in the context of the Asset Sale, Public Offering or
Stock Sale which triggers exercisability of the Option.
(b) The Optionee has a preexisting business or personal
relationship with the Companies and by reason of his business or financial
experience, has, and could reasonably be assumed to have, the capacity to
protect his interests in connection with the acquisition of this Option and the
Shares.
7. Non-Transferability of Option. This Option may not be sold,
pledged (except pursuant to the Management Pledge Agreement executed by Optionee
in favor of The First National Bank of Boston, as Administrative Agent and dated
on or about the date hereof), assigned, hypothecated, gifted, transferred or
disposed of in any manner either voluntarily or involuntarily by operation of
law, other than by will or by the laws of descent or distribution, and may be
exercised during the lifetime of the optionee only by such Optionee or, in the
event of his disability by his personal representative. Subject to the
foregoing, the terms of this option shall be binding upon the executors,
administrators, heirs, successors and assigns of the Optionee.
8. Ability to Restructure. The existence of the Option shall not
affect in any way the right or power of the Companies or their Shareholders to
make or authorize any or all adjustments, recapitalizations, organizations or
other changes in the Companies, capital structure or its business, or any merger
or consolidation of the Companies, or any issue of bonds, debentures, preferred
or prior preference stock ahead of or affecting the Common Stock or the rights
thereof, or dissolution or liquidation of the Companies, or any sale or transfer
of all or any
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part of its assets or business, or any other corporate act or proceeding whether
of a similar character or otherwise.
9. Definitions. Terms not otherwise defined in this Agreement shall
have the following respective meanings:
(a) "Act" means the Securities Act of 1933, as amended.
(b) "Aggregate Number" means the number of shares of Common
Stock issuable by each of the Companies upon exercise of the Option (whether or
not then vested), as such number may be adjusted from time to time pursuant to
Section 5 hereof. The initial Aggregate Number is the number of shares
identified in Section 1 hereof.
(c) "Asset Sale" means the sale of all or a majority in value
of the Companies, assets and the subsequent liquidation or dissolution of the
Companies, if as a result of such events, the Shareholders shall have realized a
Rate of Return of at least thirty-five (35%) percent on their Equity, after
taking into account the amount and timing of all capital contributions (and
distributions) to (from) the Companies by (to) the Shareholders.
(d) "Board" means the Board of Directors of Kirkland's.
(e) "Contingent Warrants" means warrants for up to three and
one-half percent (3.5%) of the Common Stock issued to the holders of the
Mezzanine Debt (as defined in the Recapitalization Agreement) and exercisable
only if certain conditions (as set forth therein) occur.
(f) "Convertible Securities" means securities convertible into
or exchangeable for shares of Common Stock.
(g) "Employee Options" means options to purchase Common Stock
granted pursuant to the Option Plan.
(h) "Equity" means all initial capital contributed to the
Companies by the Shareholders as of the date hereof, including in the form of
continuing ownership, as well as subsequent capital contributions by the
Shareholders. For all purposes hereof (i) the Equity shall be considered to have
a value of Forty-Five Million Dollars ($45,000,000) as of the date hereof, (ii)
shares of capital stock shall be valued without regard to voting rights, and
(iii) Class C Preferred Stock shall not be considered Equity.
(i) "Fair Market Value Per Share" means the fair market value
per share of Common Stock (which shall be determined without regard to voting
rights) as determined by the Board or the Option Committee of the Board.
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(j) "Fully Diluted Common Stock" means shares of Common Stock
assuming exercise of the Management Options and all of the Warrants, and
conversion, exercise or exchange of all other securities then outstanding and
convertible, exercisable or exchangeable into shares of Common Stock.
(k) "Option Plan" shall mean the ▇▇▇▇▇▇▇▇'▇ Inc. 1996
Executive Incentive and Non-Qualified Stock Option Plan.
(l) "Management Letter" means that certain letter agreement
among Optionee and the Companies dated the date hereof and relating to
employment of Optionee by the Companies.
(m) "Management Options" means this option and all similar
options granted to the other Management Shareholders (as such term is defined in
the Recapitalization Agreement).
(n) "Percentage Value" means the value of a Company expressed
as a percentage of the aggregate values of all of the Companies. The Percentage
Values shall be those set forth on Schedule 1P to the Recapitalization
Agreement.
(o) "Person" shall mean an individual, a sole proprietorship,
a corporation, a partnership, a joint venture, an association, a trust, or any
other entity or organization, including a government or a political subdivision,
agency or instrumentality thereof.
(p) "Public Offering" means the sale of shares of the
Companies' capital stock in a registered underwritten public offering, if the
Shareholders then realize (or are treated as realizing pursuant to the
definition of "Rate of Return") a Rate of Return of at least thirty-five percent
(35%) on their Equity, after taking into account the amount and timing of all
capital contributions (and distributions) to (from) the Companies by (to) the
Shareholders.
(q) "Rate of Return" shall mean the internal rate of return
for the investment by the Shareholders in the Equity. Rate of Return shall be
calculated based on the following: (i) in the context of an Asset Sale, the
distributions to the Shareholders resulting from the Asset Sale; (ii) in the
context of a Public offering, the amount that would be realized by the
Shareholders if all Shareholders then sold their Common Stock and Class A
Preferred Stock and Class B Preferred Stock and realized (A) for their Common
Stock the price per share at which Common Stock is sold in the Public Offering
(before commissions but after other transaction expenses), and (B) for their
Class A Preferred Stock or Class B Preferred Stock, its aggregate stated value
plus all accrued and unpaid dividends; and (iii) in the context of a Stock Sale,
the amount actually realized by the Shareholders in the Stock Sale, or the
amount that would be realized if (A) all-Shareholders were selling Common Stock
at the same price per share of Common Stock as the selling Shareholders realize
in the Stock Sale (before commissions but
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after other transaction expenses), and (B) all Shareholders were selling Class A
Preferred Stock and Class B Preferred Stock for its aggregate stated value plus
all accrued and unpaid dividends.
(r) "Recapitalization Agreement" means the Recapitalization
Agreement among the Companies, Kirkland Holdings L.L.C., the Optionee and the
other management shareholders of the Companies dated the date hereof.
(s) "Shareholders" means the holders of Common Stock from time
to time outstanding.
(t) "Shareholders Agreement" means that certain Shareholders
Agreement dated the date hereof among the Companies, the holders of their
Capital Stock and the holders of warrants for their Common Stock.
(u) "Stock Sale" means the acquisition of more than fifty
percent (50%) of the outstanding shares of common stock of Companies
representing a majority of the Percentage Values by a Person or group of Persons
(other than non-cash sales or exchanges of Common Stock among the Shareholders
of the Companies), if as a result of such event, the Shareholders would have
realized (or be treated as having realized pursuant to the definition of "Rate
of Return") a Rate of Return of at least thirty-five (35%) percent on their
Equity, after taking into account the amount and timing of all capital
contributions (and distributions) to (from) the Companies by (to) the
Shareholders.
(v) "Unit" shall mean one share of Common Stock in each of the
Companies.
(w) "Warrants" means the warrants for ten percent (10%) of the
Common Stock issued to the holders of the Mezzanine Debt (as defined in the
Recapitalization Agreement) on the date hereof.
10. Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Tennessee.
11. Entire Agreement. This Agreement, together with .the Management
Letter and the Recapitalization Agreement, and the other exhibits attached
thereto or hereto, represents the entire agreement between the parties.
12. Amendment. This Agreement may only be amended by a writing
signed by each of the parties hereto.
13. Notice. Any notice or communication required or permitted under
this Agreement shall be made in writing and (i) sent by overnight courier, (ii)
mailed by certified or registered mail, return receipt requested or (iii) sent
by telecopier, addressed to the addresses of
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the parties set forth herein (and, in the case of any of the Companies, with a
copy to Pepper, ▇▇▇▇▇▇▇▇:& ▇▇▇▇▇▇▇, 3000 Two ▇▇▇▇▇ Square, ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esquire); or to
such other address as either party may from time to time duly specify by notice
given to the other party in the manner specified above.
14. Waiver. Any waiver by either party of a breach of any provision
of this Agreement shall not operate as or be construed to be a waiver of any
other breach of such provision' or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term of
this Agreement on one or more occasions shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be in writing.
IN WITNESS WHEREOF, the Companies have caused this instrument to be
executed by their duly authorized representative, and the Optionee has hereunto
affixed his hand and seal, the day and year first above written.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
ATTEST ▇▇▇▇▇▇▇▇'▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------- ----------------------------------
Title: Vice President & Secretary Title: President
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# Corporate Name
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101 Kirkland's of Carolina, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Mall, Inc.
103 Kirkland's of Tennessee, Inc.
104 K. C. Corp. Inc.
107 Kirkland's of Greensboro, Four Seasons Mall, Inc.
109 Kirkland's of Fayetteville, Cross Creek Mall, Inc.
110 Kirkland's of Wilmington, Independence Mall, Inc.
111 Kirkland's III, Jackson-Metro Center, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, Laurelwood Shopping Center, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, Northpark Mall, Inc.
116 Kirkland's of Knoxville, East Towne Mall, Inc.
117 Kirkland's of Huntsville, Madison Square Mall, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Hollow Mall, Inc.
120 Kirkland's of Birmingham, Riverchase Galleria, Inc.
122 Kirkland's of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇, Inc.
135 Kirkland's of Dayton Mall, Dayton, OH, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇, Inc.
139 Kirkland's of Chesterfield Towne Center, Richmond, VA, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇, Inc.
141 Kirkland's of Montgomery Mall, Montgomery, AL, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇, Inc.
146 Kirkland's of Hickory Ridge Mall, Memphis, TN, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇, Inc.
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151 Kirkland's of Bel Air Mall, Mobile, AL, Inc.
152 Kirkland's of The Mall at ▇▇▇▇▇▇ Crossing, Tupelo, MS, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇-▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇, Inc.
156 Kirkland's of ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇, Inc.
157 Kirkland's of ▇▇▇▇▇▇▇▇ Mall, Birmingham, AL, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇.▇., Inc.
160 Kirkland's of ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇.▇., Inc.
161 Kirkland's of Cool Springs Galleria, Nashville, TN, Inc.
162 Kirkland's of Kenwood Towne Centre, Cincinnati, OH, Inc.
163 Kirkland's of St. Louis Galleria, St. Louis, MO, Inc.
164 Kirkland's of Wiregrass Commons Mall, Dothan, AL, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇, Inc.'
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇, Inc.
167 Kirkland's of Acadiana Mall, Lafayette, LA, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.
172 Kirkland's of Crestwood Plaza, St. Louis, MO, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇, 'Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇,, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇, Inc.
186 Kirkland's of ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇, IN, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, Inc.
191 Kirkland's of ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, Inc.
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195 Kirkland's of The Parks at Arlington, Ft. Worth, TX, Inc.
196 Kirkland's of ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇, Inc.
198 Kirkland's of Turtle Creek Mall, Hattiesburg, MS, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇.▇., Inc.
208 Kirkland's of ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇.▇., Inc.
209 Kirkland's of ▇▇▇ Valley Mall, Chicago, IL, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇., Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇, Inc.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Title: President
ATTEST:
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Title: Vice President & Secretary
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