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EXHIBIT 12
OPTION AGREEMENT
This Option Agreement (this "Agreement") is made as of this 23rd day
of April, 1996, between Boston Chicken, Inc., a Delaware corporation ("BCI")
and Xxxxxxx Xxxx ("Grantee").
1. GRANT OF OPTION. Subject to the terms and conditions of this
Agreement, BCI hereby grants to Grantee the right and option (the "Option") to
purchase from BCI 174.08 shares of common stock, $.01 par value per share, of
Einstein Bros. Bagels, Inc. ("EBBI") (the "Option Shares"), which number of
Option Shares may be adjusted pursuant to Section 9 below.
2. EXERCISE PRICE. The purchase price for each Option Share
shall be $1,436.14 per share (the "Exercise Price").
3. VESTING. Subject to termination of the Option as provided
herein, the Option may be exercised, at any time and from time to time on or
after April 23, 1997 but such Option shall not be exercisable for more than a
percentage of the aggregate number of Option Shares in accordance with the
following schedule:
Cumulative
Date Percentage
---- ----------
On or after April 23, 1997 to April 22, 1998 up to 10%
April 23, 1998 to April 22, 1999 up to 30%
April 23, 1999 to April 22, 2000 up to 60%
April 23, 2000 to April 22, 2001 up to 100%
4. PROCEDURE FOR EXERCISE. If Grantee elects to exercise the
Option, Grantee shall deliver to BCI: (i) a notice of exercise (the "Exercise
Notice") in the form set forth on Exhibit A attached hereto, and (ii) full
payment of the Exercise Price for the Option Shares to be purchased. The date
on which the Exercise Notice and the Exercise Price for the Option Shares to be
purchased are received by BCI is referred to herein as the "Exercise Date." As
soon as practicable after the Exercise Date, BCI will deliver to Grantee one or
more properly executed EBBI stock certificates, in the name of Grantee,
evidencing the Option Shares so purchased, subject to appropriate restrictive
legends.
5. PAYMENT OF EXERCISE PRICE. The Exercise Price shall be paid
by Grantee by delivery of a certified check drawn on any state or national bank
or savings and loan association.
6. PARTIAL EXERCISE. One or more partial exercises of the Option
shall be permitted from time to time.
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7. EXPIRATION. The Option and this Agreement shall expire and
become void upon the earlier of five (5) years from the date hereof or at such
time as Grantee is no longer an employee of BCI, or a subsidiary or area
developer of BCI, regardless of the cause for such termination; provided,
however, that the Option and this Agreement shall not terminate and the Option
shall accelerate and immediately become 100% vested in the event of Grantee's
death or permanent disability during his employment with BCI, or a subsidiary
or area developer of BCI.
8. RESTRICTIONS ON OPTION AND OPTION SHARES. The Option shall be
exercisable only by Grantee. The Option may not be sold, pledged, assigned or
otherwise transferred without the prior written consent of BCI in its sole
discretion. Any purported transfer or transaction in violation of this Section
8. shall be null and void ab initio.
9. ADJUSTMENTS. In the event of any change in the number of
shares of common stock of EBBI outstanding by reason of any stock split, stock
dividend, split-up, split-off, spin-off, recapitalization, merger,
consolidation, reorganization, combination or exchange of shares, sale by EBBI
of all or part of its assets, distribution to shareholders of EBBI other than a
normal cash dividend, or other extraordinary or unusual event occurring after
the date hereof and prior to exercise of the Option in full, the number and
kind of shares of common stock of EBBI or other property for which the Option
may then be exercised and the Exercise Price per Option Share shall be adjusted
so as to reflect such change.
10. NO RIGHTS AS A STOCKHOLDER. Unless and until a certificate or
certificates representing such Option Shares of common stock of EBBI shall have
been issued to Grantee, Grantee shall not be or have any of the rights or
privileges of a stockholder of EBBI with respect to shares of common stock of
EBBI acquirable upon exercise of the Option.
11. TAX WITHHOLDING. As a condition to any exercise of the
Option, BCI shall require Grantee to deposit with BCI such federal and state
income, employment and other taxes, if any, as may be required to be withheld
under applicable law. Such withholding shall be paid in cash.
12. TAX CONSEQUENCES. Grantee is solely responsible for learning,
understanding, and accepting the tax consequences to him of the receipt and
exercise of the Option and the disposition of the Option Shares.
13. INVESTMENT REPRESENTATIONS. Grantee, as a condition to this
Agreement and the exercise of the Option, represents and warrants that the
Option and the Option Shares have been and will be acquired for its own account
and not with a view to the resale or other distribution thereof. Grantee
further represents that he is an accredited investor within the meaning of
Regulation D under the Securities Act of 1933, as amended, that he has made all
inquires concerning the Option and the Option Shares, he deems appropriate, and
has received satisfactory responses to such inquires. Grantee understands that
the Option and the Option Shares have not been and will not be registered under
the Securities Act of 1933 and, therefore, cannot be sold or transferred unless
either they are subsequently registered under such Act (as well as under any
applicable state securities laws) or an exemption from such registration is
available.
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14. GOVERNING LAW. THE PARTIES INTEND THIS AGREEMENT TO BE
GOVERNED BY THE LAWS OF THE STATE OF COLORADO. If the scope of any provision
contained herein is too broad to permit enforcement of such provision to its
full extent, then such provision shall be enforced to the maximum extent
permitted by law. If any provision of this Agreement shall be construed to be
illegal or invalid, the legality or validity of any other provision hereof
shall not be affected thereby, and any illegal or invalid provision of this
Agreement shall be severable, and all other provisions shall remain in full
force and effect.
15. AMENDMENT. This Agreement, and each section hereof, may be
amended only in writing, signed by the party against whom enforcement of any
such amended provision is sought.
16. HEADINGS. Any headings of sections of this Agreement are
solely for the convenience of the parties and are not a part of this Agreement
nor are they to be used in its interpretation.
17. COUNTERPARTS. This Agreement may be executed in several
counterparts; each such counterpart shall be considered as an original
agreement and all such executed counterparts shall constitute an Agreement.
18. NOTICES. Any notice, request, instruction, or other document
required to be given under this Agreement by either party to the other shall be
in writing and delivered in person or by courier, or by facsimile transmission
or mailed by certified mail, postage prepaid, return receipt requested (such
mailed notice to be effective on the date such receipt is acknowledged) as
follows:
To BCI:
General Counsel
Boston Chicken, Inc.
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
To Grantee:
Xxxxxxx Xxxx
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Notices sent for next day delivery by Federal Express or other reliable courier
shall
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be deemed given the next business day after sending, notices transmitted
by fax or personally delivered shall be deemed given when so transmitted or
delivered, respectively, and notices sent by certified or registered mail shall
be deemed given on the fifth business day after sending.
19. SUCCESSORS. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective successors.
20. ENTIRE AGREEMENT. This Agreement and exhibits hereto contain
the entire agreement of the parties hereto with respect to the transactions
and relationships contemplated herein, and supersedes all prior understandings
and agreements of the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
BOSTON CHICKEN, INC.
BY: /s/ XXXXXX X. XXXXXX /s/ XXXXXXX XXXX
--------------------------------- -----------------------------------
TITLE: VICE PRESIDENT XXXXXXX XXXX
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EXHIBIT A
EXERCISE NOTICE
_________________
Date
Boston Chicken, Inc.
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Dear Sir:
I wish to exercise the option granted on ________________, 1996 and
evidenced by that Option Agreement dated ___________________, 1996 to the
extent of ______________ shares of the common stock of Einstein Bros. Bagels,
Inc., at the option price of $1,436.14 per share. My check in the amount of
$________________ in payment of the entire purchase price and tax withholding
for these shares accompanies this letter.
Please issue a certificate for these shares in the following name:
_____________________________
Name
_____________________________
Street Address
_____________________________
City/State/Zip
Very truly yours,
______________________________
Signature
______________________________
Typed or Printed Name
______________________________
Social Security Number
