Exhibit 10.2
THE PANTRY, INC.
AWARD AGREEMENT
(Awarding Incentive Stock Option
to Employee)
THIS AWARD AGREEMENT (this
“Agreement”) is entered into as of September
15, 2009 by and between The Pantry, Inc. , a
Delaware corporation (the “Company”), and
TERRANCE M. MARKS (“Optionee”) pursuant to
The Pantry, Inc. 2007 Omnibus Plan (the “Plan”). All
capitalized terms not otherwise defined herein shall have the
meanings set forth in the Plan.
RECITALS:
1. Optionee is an employee of the
Company, as of September 15, 2009 (the “Start Date”)
and the Company considers it desirable to give Optionee an added
incentive to advance the interests of the Company and its
shareholders.
2. The Company now desires to grant
Optionee the right to purchase shares of common stock of the
Company, par value $.01 per share (the “Shares”),
pursuant to the terms and conditions of this Agreement and the
Plan.
AGREEMENT:
NOW, THEREFORE, in consideration of
the covenants hereinafter set forth, the parties agree as
follows:
1. Option; Number of Shares .
The Company hereby grants to Optionee the right (the
“Option”) to purchase up to a maximum of
70,000 Shares at a price of $[ Option Price
] per Share (the “Option Price”) to be paid in
accordance with Section 6 hereof. The Option and the right to
purchase all or any portion of the Shares covered by the Option are
subject to the terms and conditions stated in this Agreement and in
the Plan. The Option is intended to qualify for treatment as an
Incentive Stock Option under Section 422 of the Internal
Revenue Code of 1986, as amended (the “Code”).
Nevertheless, to the extent that it exceeds the $100,000 rule of
Code Section 422(d), this Option shall be treated as a
Nonqualified Stock Option.
2. Vesting . The Option
granted hereunder shall vest and become exercisable in three
(3) equal installments of one-third (1/3) of the Shares
covered by the Option on each of the first, second and third
anniversaries of the Start Date, provided , however ,
that in the event Optionee is terminated by the Company without
Cause (as such term is defined in that certain employment agreement
between Optionee and the Company dated August [-], 2009 (the
“Employment Agreement”)) prior to the first anniversary
of the Start Date, a pro rata portion of the Shares subject to the
Option will become vested and exercisable, and for such purpose a
“pro rata portion” shall be a number of Shares equal to
(x) the total number of Shares constituting the
Option times
(y) a fraction, the numerator of
which is the number of days Optionee was employed through the date
of termination and the denominator of which is 1,095.
3. Term of Agreement . The
Option, and Optionee’s right to exercise the Option, shall
terminate when the first of the following occurs:
(a) termination of this
Agreement and the Option pursuant to Section 17.1 of the
Plan;
(b) the
expiration of seven (7) years from the date hereof (such date
the “Expiration Date”); or
(c) 90 days
after the date of termination of Optionee’s employment or
other relationship with the Company; provided ,
however , that unless such termination results from
Optionee’s death or disability (within the meaning of
Section 22(e)(3) of the Code) or Optionee dies within 90 days
after the date of termination of Optionee’s employment or
other relationship with the Company, in which case this Agreement
and the Option shall terminate 180 days after the date of
termination of Optionee’s employment or other relationship
with the Company; and provided , further , that if
such termination is by the Company without Cause or upon the
expiration of the term of the Employment Agreement due to a Company
notice not to renew the Employment Agreement, the Option, to the
extent vested, shall remain exercisable until the earlier of 180
days after the date of such termination.
4. Termination of Employment or
Other Relationship . The termination of Optionee’s
employment or other relationship with the Company other than as a
result of death, disability or a Qualified Termination (as such
term is defined in the Employment Agreement) shall not accelerate
the vesting of the Option or otherwise affect the number of Shares
with respect to which the Option may be exercised, and the Option
may only be exercised with respect to that number of Shares that
could have been purchased under the Option had the Option been
exercised by Optionee on the date of such termination. The
termination of Optionee’s relationship with the Company
as
