|
Exhibit 10.27
THE PANTRY, INC.
1999 Stock Option Plan
(Amended and Restated as of
October 17, 2007)
Section 1.
Description of Plan . This is the
1999 Stock Option Plan (the “Plan”) of The Pantry,
Inc., a Delaware corporation (the “Company”). Under
this Plan, officers, key employees and consultants of the Company
or any of its subsidiaries and members of the board of directors of
the Company or any of its Subsidiaries, to be selected as set forth
below, may be granted options (“Options”) to purchase
shares of the common stock, par value $.01, of the Company
(“Common Stock”). For purposes of this Plan, the term
“subsidiary” means any directly or indirectly majority
or wholly-owned entity of the Company (individually, a
“Subsidiary” and collectively, the
“Subsidiaries”). It is intended that the Options under
this Plan will either qualify for treatment as incentive stock
options under Section 422 of the Internal Revenue Code of
1986, as amended (the “Code”), and be designated
“Incentive Stock Options” or not qualify for such
treatment and be designated “Nonqualified Stock
Options.” Incentive Stock Options may only be granted to
employees.
Section 2.
Purpose of Plan . The purpose of the
Plan and of granting Options to specified persons is to further the
growth, development and financial success of the Company and its
Subsidiaries by providing additional incentives to certain
officers, key employees, consultants and members of the board of
directors of the Company or its Subsidiaries. By assisting such
persons in acquiring shares of Common Stock, the Company can ensure
that such persons will themselves benefit directly from the
Company’s and its Subsidiaries’ growth, development and
financial success.
Section 3.
Eligibility . The persons who shall
be eligible to receive grants of Options under the Plan shall be
the directors, officers, key employees and consultants of the
Company and the Subsidiaries; provided that bona fide services
shall be rendered to the Company or its Subsidiaries by such
consultant and such services shall not be rendered in connection
with the offer and sale of securities in a capital-raising
transaction. Consultants as well as directors who are not also
employees of the Company are not eligible to receive Incentive
Stock Options. A person who holds an Option is herein referred to
as a “Participant,” and more than one Option may be
granted to any Participant. The aggregate fair market value
(determined as of the time an Incentive Stock Option is granted) of
the Common Stock with respect to which Incentive Stock Options are
exercisable for the first time by any Participant in any calendar
year under this Plan and any other Incentive Stock Option plans of
the Company or any Subsidiary shall not exceed $100,000.
Section 4.
Administration .
(a) The Plan
shall be administered by the board of directors of the Company (the
“Board”) or, at the Board’s option, a committee
of the Board (either the Board or such committee, the
“Committee”). Members of the Committee shall be
appointed, both initially and as vacancies occur, by the Board to
serve at the pleasure of the Board. To the extent possible and
advisable, the Committee may be constituted so as to permit this
Plan to comply with Rule
16b-3 promulgated under Section 16 of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)
and Section 162(m) of the Code. The Committee shall meet at
such times and places as it determines and may meet through a
telephone conference call. A majority of its members shall
constitute a quorum, and the decision of a majority of those
present at any meeting at which a quorum is present shall
constitute the decision of the Committee. A writing signed by all
of its members shall constitute the decision of the Committee
without the necessity, in such event, for holding an actual
meeting.
(b) The
Committee is authorized and empowered to administer the Plan and,
subject to the Plan, (i) to select the Participants, to
determine the number of shares of Common Stock which may be
purchased and in general to grant Options; (ii) to determine
the dates upon which Options shall be granted and the terms and
conditions thereof in a manner not inconsistent with the Plan,
which terms and conditions need not be identical as to the various
Options granted; (iii) to determine which Options are to be
Incentive Stock Options and which Options are to be Nonqualified
Stock Options; (iv) to interpret the Plan; (v) to
prescribe, amend and rescind rules relating to the Plan;
(vi) to authorize any person to execute on behalf of the
Company any instrument required to effectuate the grant of an
Option previously granted by the Committee; (vii) to determine
the rights and obligations of Participants under the Plan;
(viii) to specify the purchase price to be paid by
Participants for shares of Common Stock; (ix) to accelerate
the time during which an Option may be exercised in accordance with
the provisions of Section 16 hereof, and to otherwise
accelerate the time during which an Option may be exercised in each
case notwithstanding the provisions in the Option Agreement (as
defined in Section 13) stating the time during which it may be
exercised; (x) to extend the period of time during which a
Nonqualified Option may be exercised ( e.g. following
termination of employment) and (xi) to make all other
determinations deemed necessary or advisable for the administration
of the Plan. The interpretation and construction by the Committee
of any provision of the Plan or of any Option granted under it
shall be final, conclusive and binding. Except to the extent such
exemption from liability or limitation thereof is not permitted
under the General Corporation Law of the state of Delaware, as the
same exists or may hereafter be amended, no member of the Committee
shall be liable for any action or determination made with respect
to the Plan or any Option granted hereunder.
Section 5.
Shares Subject to Plan . The
aggregate number of shares of Common Stock for which Options may be
granted pursuant to the Plan shall be 4,707,505 subject to
adjustment as provided in Section 11 hereof. Up to the full
number of said shares may be subject to Incentive Stock Options
granted hereunder. The maximum number of shares that may be subject
to Options granted to a single Participant is 1,785,000, subject to
adjustment as provided in Section 11 hereof. The number of
shares of Common Stock which may be purchased by a Participant upon
exercise of each Option shall be determined by the Committee and
set forth in each Option Agreement. Upon the expiration or
termination, in whole or in part, for any reason of an outstanding
Option or any portion thereof which shall not have vested or shall
not have been exercised in full, or in the event that any shares of
Common Stock acquired pursuant to the Plan are reacquired by the
Company at the original purchase price, (a) any shares of
Common Stock which have not been purchased or (b) the shares
of Common Stock reacquired, as the case may be, shall again become
available for the granting of additional Options under the Plan.
Notwithstanding the preceding sentence, shares subject to a
terminated option shall continue to
2
be considered to be outstanding for purposes of
determining the maximum number of shares that may be issued to a
single Participant. Similarly, the repricing of an Option will be
considered the grant of a new Option for this purpose.
Section 6.
Option Price . Except as provided in
Section 12 hereof, the purchase price per share (the
“Option Price”) of the shares of Common Stock
underlying each Option shall not be less than 100 percent of the
fair market value of such shares on the date of grant of the
Option; provided that with respect to any Option the Committee may
provide that the Option Price increases over time; provided
further, that if the Participant is a ten percent
(10%) stockholder of the Company determined in accordance with
the constructive ownership rules of Section 424(a) of the Code
at the time such Participant is granted an Incentive Stock Option,
the Option Price shall be not less than 110 percent of said fair
market value. Fair market value shall be determined by the
Committee (i) if the Company’s securities are traded on
a national securities exchange or on the Nasdaq System (or a
similar successor system), on the basis of the reported closing
sales price on such date or, in the absence of a reported sales
price on such date, on the basis of the average of the reported
closing bid and asked price on such date; provided that if such
exchange or system is closed on the date of grant fair market value
shall be determined based on the immediately preceding trading day,
or (ii) in the absence of both a reported sales price and a
reported bid and asked price under clause (i), the Committee shall
determine such fair market value on the basis of such evidence as
it deems appropriate in its sole discretion.
Section 7.
Restrictions on Grants; Vesting of Options
. Notwithstanding any other provisions set
forth herein or in any Option Agreement, no Options may be granted
under the Plan subsequent to 10 years from the date this Plan was
adopted by the Board. The vesting of all Options may be based on
the passage of time. The Committee shall determine the vesting
schedule applicable to each Option or group of Options in a
schedule, a copy of which shall be filed with the records of the
Committee and attached to each Option Agreement to which the same
applies. The vesting schedule need not be identical for all Options
granted hereunder. The Committee may periodically review the
vesting criteria applicable to any Option or Options and, in its
sole judgment, may adjust the same to reflect unanticipated major
events, including but not limited to catastrophic occurrences,
mergers and acquisitions.
Section 8.
Exercise of Options . Once vested,
and prior to its termination date, an Option may be exercised by
the Participant by giving written notice to the Company specifying
the whole number of shares of Common Stock to be purchased and
accompanied by payment of the full purchase price therefor in cash,
by check or in such other form of lawful consideration as the
Committee may approve from time to time, including without
limitation and in the sole discretion of the Committee, the
assignment and transfer by the Participant to the Company of
outstanding shares of Common Stock theretofore held by the
Participant in a manner intended to comply with the provisions of
Rule l6b-3 under the Exchange Act, if applicable; provided that the
purchase price may not be paid by a Participant via any type of
“cashless exercise” in which the Company directly,
indirectly or effectively purchases shares of Common Stock held by
such Participant without the express written consent of the
Committee, which may be given or withheld in the Committee’s
sole discretion (provided that such shares have been held by such
Participant for such period of time as may be necessary to avoid
adverse accounting treatment and are not subject to forfeiture
conditions). After giving due consideration of the
consequences
3
under Section 16 of the Exchange Act, under the Code
and under the Sarbanes-Oxley Act of 2002, the Committee may also
authorize the exercise of Options by the delivery to the Company or
its designated agent of an irrevocable written notice of exercise
form together with irrevocable instru
|
