EXHIBIT 10.5
CARIBOU COFFEE COMPANY, INC.
2001 STOCK OPTION PLAN
STOCK OPTION GRANT AND AGREEMENT
Caribou Coffee Company, Inc., a Minnesota corporation ("Caribou"), in
accordance with the Caribou Coffee Company, Inc. 2001 Stock Option Plan
("Plan"), hereby grants an Option to ____________________ ("Optionee") to
purchase from Caribou ____________________ shares of Stock at an Option Price
per share of $_____________________. This Option is subject to all of the terms
and conditions set forth in this Option Agreement and in the Plan and is granted
effective as of ___________________ (the "Grant Date").
TERMS AND CONDITIONS
Section 1 Plan. This Option is subject to all the terms and
conditions set forth in this Option Agreement and in the Plan, which is herein
incorporated by reference. All capitalized terms not otherwise defined in this
Option Agreement shall have the respective meaning of such terms as defined in
the Plan. If a determination is made that any term or condition set forth in
this Option Agreement is inconsistent with the Plan, the Plan shall control. A
copy of the Plan will be made available to Optionee upon written request to the
Committee.
Section 2 Section 16(a). If Optionee, at the time he or she
proposes to exercise any rights under this Option, is an officer or director of
Caribou, or is filing ownership reports with the Securities and Exchange
Commission under Section 16(a) of the 1934 Act, then Optionee shall consult
Caribou before Optionee exercises such rights to determine whether the
securities law might subject him or her to additional restrictions upon the
exercise of such rights.
Section 3 Exercise Right. Notwithstanding the extent to which
Optionee is vested in this Option on any date under Section 3(a), Optionee may
exercise this Option only after the occurrence of an "Exercise Event" as
described in Section 3(b).
(a) Vesting. Optionee shall vest in this Option in
accordance with the following vesting schedule:
(1) Optionee shall be vested with respect to 25% of
the shares of Stock subject to this Option
(rounding down to the nearest
whole number) if he or she remains an Employee
until the first anniversary of the Grant Date;
(2) Optionee shall be vested with respect to another
25% of the shares of Stock subject to this Option
(rounding down to the nearest whole number) if he
or she remains an Employee until the second
anniversary of the Grant Date;
(3) Optionee shall be vested with respect to another
25% of the shares of Stock subject to this Option
(rounding down to the nearest whole number) if he
or she remains an Employee until the third
anniversary of the Grant Date; and
(4) Optionee shall be vested with respect to the
remaining 25% of the shares of Stock subject to
this Option (rounding down to the nearest whole
number) if he or she remains an Employee until the
fourth anniversary of the Grant Date.
Notwithstanding the vesting schedule set forth in this
Section 3, Optionee shall be fully vested with respect
to 100% of the shares of Stock subject to this Option
if he or she remains an Employee until the date of a
Change of Control Event. If Optionee continues to hold
this Option following termination of employment as
provided in Section 3(e), the vested interest in the
Option shall not be increased by the occurrence of a
Change of Control Event that occurs after the effective
date of the termination of employment.
(b) Exercise Events. Except for the right to exercise the
Option (to the extent vested) for the period in Section
3(e) following a termination of employment, Optionee
may exercise this Option (to the extent it is vested on
such date) only after the earlier of the following
events (an "Exercise Event"):
(1) the occurrence of a Qualified Public Offering and
the effectiveness of the filing of a registration
statement with the Securities Exchange Commission,
as more fully described in the Plan; or
(2) the ninth anniversary of the Grant Date.
(c) Cancellation. In the case of a Change of Control Event,
the Option shall be cancelled and Optionee shall
receive a cancellation payment as provided in the Plan.
The Option may also be
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cancelled at any time by the Board of Directors of
Caribou and the Optionee shall be given fair value for
the Option as determined by the Committee in its sole
discretion.
(d) Life of Option. After an Exercise Event described in
Section 3(b) occurs, or in the case of the right to
exercise as provided in Section 3(e) due to a
termination of employment, Optionee shall have the
right to exercise this Option (to the extent it is
vested under the vesting schedule in Section 3(a) on
such date) until the earlier of (i) the date that the
Option is exercised, cancelled in full or otherwise
expires, or (ii) the tenth anniversary of the Grant
Date.
(e) Termination of Employment. If Optionee ceases to be an
Employee of Caribou and its Parent and all of its
Affiliates and Subsidiaries for any reason prior to the
date Optionee is permitted to exercise this Option,
Optionee shall retain this Option to the extent it is
vested under the vesting schedule in Section 3(a) as of
the date the Optionee's employment terminated, and
shall be permitted to exercise this Option to the
extent vested during the ninety (90) day period
following the effective date of his termination of
employment, provided, however, if the Optionee's
employment is terminated due to death, his or her
heirs, personal representative or beneficiary shall
have the ninety (90) day period extended to a one year
period beginning on the date of the Optionee's death.
The Option, to the extent not exercised, shall expire
at the end of the ninety (90) day period following the
effective date of Optionee's termination of employment,
or the one year period in the case of the Optionee's
death.
(f) Other Conditions. The grant of this Option is
conditioned on Optionee's execution of a non-disclosure
and non-solicitation agreement in the form presented to
Optionee within the period designated for execution,
and may also be conditioned on the execution of a
noncompete agreement at the discretion of the
Committee. If such agreement(s) is not executed as
provided herein, this Option shall automatically expire
at such time as is determined by the Committee in its
sole discretion. As a condition of exercise of this
Option, Optionee must also enter into any agreement or
make representations prepared by Caribou, which may
include the execution of a stockholder's agreement
which restricts the transfer of the shares of Stock
acquired pursuant to the exercise of this Option or
provides for the repurchase of the shares of Stock
acquired pursuant to the exercise of this Option.
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Section 4 Method of Exercise of Option. Optionee may exercise
this Option in whole or in part (to the extent this Option is otherwise
exercisable under Section 3) on any normal business day of Caribou by (1)
delivering a written notice of exercise of the Option to Caribou; and (2)
simultaneously paying to Caribou the Option Price plus such sum, if any, as the
Committee deems necessary to satisfy Optionee's federal, state and other tax
withholding requirements resulting from any compensation attributable to the
exercise of the Option. The payment of such Option Price and withholding taxes
shall be made either in cash or by check acceptable to Caribou, or in any
combination of cash and such check which results in payment in full of the
Option Price and withholding taxes. The Committee, in its sole discretion, may
also permit payment of the Option Price with shares of Stock held at least six
(6) months, or in any combination of cash, check, or Stock. At the discretion of
the Committee, the Option Price may also be paid through a broker-facilitated
cashless exercise procedure acceptable to the Committee or its delegate. At the
sole discretion of the Committee, an Optionee may be permitted to pay applicable
withholding taxes through a reduction in the number of shares of Stock
transferred to the Optionee through the exercise of this Option. In no event may
an exercise be for less than two hundred (200) shares of Stock, which minimum
shall be adjusted in accordance with Section 11, or the remaining vested portion
of the Option, if less.
Section 5 Delivery. Caribou shall deliver a properly issued
certificate representing each share of Stock purchased pursuant to the exercise
of this Option as soon as practicable after such exercise, and such delivery
shall discharge Caribou of all of its duties and responsibilities with respect
to this Option to the extent it is so exercised.
Section 6 Transferability. No rights granted under this Option
shall be transferable by Optionee other than by will or by the laws of descent
and distribution, and the rights granted under this Option shall be exercisable
during Optionee's lifetime only by Optionee. The person or persons, if any, to
whom this Option is transferred due to the death of Optionee shall be treated
after Optionee's death the same as Optionee under this Option Agreement,
provided that the Option shall expire on the last day of the one year period
that begins on the date of the Employee's death, unless it is exercised,
cancelled or expires prior to such date.
Section 7 No Right to Continue Employment. Neither the Plan, this
Option, nor any related material shall give Optionee the right to continue in
employment by Caribou or any Subsidiary or other Affiliate, nor shall the Plan,
this Option, nor any related material adversely affect or in any way limit the
right of Caribou or any Subsidiary or Affiliate to terminate Optionee's
employment with or without cause at any time.
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Section 8 Stockholder Status. Optionee shall have no rights as a
stockholder with respect to any shares of Stock subject to this Option until
such shares of Stock have been duly issued and delivered to Optionee pursuant to
a proper exercise of this Option, and no adjustment shall be made for dividends
of any rights or any kind or description whatsoever or for distributions of
other rights of any kind or description whatsoever respecting such shares of
Stock, except as expressly set forth in the Plan.
Section 9 Other Laws. Caribou shall have the right to refuse to
issue or transfer any shares of Stock under this Option if Caribou, acting in
its absolute discretion, determines that the issuance or transfer of such shares
of Stock might violate any applicable law or regulation. In such event, any
payment tendered to exercise this Option shall be promptly refunded to Optionee,
and Caribou at that point shall have the right to cancel this Option or to take
such other action with respect to this Option as Caribou deems appropriate under
the circumstances.
Section 10 Governing Law. The Plan and this Option shall be
governed by the laws of the State of Minnesota, without regard to the choice of
law rules thereof.
Section 11 Modification, Amendment and Cancellation. The Board
shall have the right unilaterally to modify, amend or cancel this Option in
accordance with the terms of the Plan. The number of shares of Stock and the
Option Price may be adjusted in accordance with the terms of the Plan to reflect
any change in the capitalization of Caribou. The Committee shall also have the
right to amend the Option or withhold or restrict the transfer of any share of
Stock to Optionee hereunder if the Committee deems it appropriate in order to
satisfy any condition or requirement under applicable securities laws.
Section 12 Binding Effect. This Option shall be binding upon
Caribou and Optionee and their respective heirs, executors, administrators,
successors and assigns.
Section 13 References. Any references to sections (Section) in
this Option Agreement shall be to sections (Section) of this Option Agreement
unless otherwise expressly stated as part of such reference.
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By execution of this Option Agreement, Optionee and Caribou agree to be
bound by the terms and conditions of the Plan and this Option Agreement.
OPTIONEE: ________________________________________
CARIBOU COFFEE COMPANY, INC.
By: ______________________________________________
Title: ___________________________________________
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