Exhibit 10.2
BRIAZZ, INC.
1996 AMENDED
STOCK OPTION PLAN
FRESH OPTIONS STOCK OPTION PROGRAM FOR ASSOCIATES
STOCK OPTION AGREEMENT
THIS AGREEMENT is entered into this as set fourth in the Notice ("Date of
Grant") between BRIAZZ, INC., a Washington corporation (the "Company"), and the
optionee (the "Optionee") (the "Optionee") named in the caption of the Notice of
Grant of Stock Options (the "Notice") attached hereto as Exhibit A.
WHEREAS, the Board of Directors of the Company (the "Board") has approved
and adopted the FRESH OPTIONS Stock Option Program Associates (the "Program")
under the BRIAZZ, INC, 1996 Amended Stock Option Plan (the "Plan"); and
WHEREAS, the Program provides for the grant of options to acquire shares of
common stock, without par value (the "Common Stock"), of the Company that do
riot qualify under Section 422 of the Internal Revenue Code of 1986, as amended
(the "Code"), and
WHEREAS, the Compensation Committee of the Board has authorized the grant
to Optionee of options (the "Options") to purchase the total number of shares of
Common Stock (the "Option Shares") set forth in the first paragraph of the
Notice.
NOW, THEREFORE, the Company agrees to offer to the Optionee the option to
purchase, upon the terms and conditions set forth herein and in the Plan the
total number of shares of Common Stock set forth in the first paragraph of the
Notice. Capitalized terms not otherwise defined herein shall have the meanings
ascribed thereto in the Plan
1. Exercise Price. The exercise price of the Options shall be the
--------------
exercise price per share set forth in the first paragraph of the Notice.
2. Vesting Schedule. The right to purchase the Option Shares shall
----------------
accrue ("vest") as follows:
(a) the right to purchase twenty-five percent at (25 %) of the
Option Shares shall vest on the date one year from the Date of Grant.
(b) the right to purchase twenty-five Percent (25%) of the
Option Shares shall vest on each of the three succeeding annual anniversaries
after such date.
3. Options not Transferable. This Option may not be transferred,
------------------------
assigned. pledged or hypothecated in any manner (whether by operation of law or
otherwise) other than by will, by applicable laws of descent and distribution or
pursuant to a qualified domestic relations order and may be exercised only by
the Optionee or a person to whom rights under the Option have passed by will,
the applicable laws of descent and distribution or pursuant to a qualified
domestic relations order. Upon any attempt to transfer, pledge, hypothecate or
otherwise dispose of any Option or of any right or privilege conferred by the
Plan contrary to the provisions thereof, or upon the sale, levy or attachment or
similar process upon the rights and privileges conferred by the Plan, such
Option shall thereupon terminate and become null and void.
4. Investment Intent. By accepting the Option, the Optionee
-----------------
represents and agrees that none of the shares of Common Stock purchased upon
exercise of the Option will be distributed in violation of applicable federal
and state laws and regulations. In addition, the Company may require, as a
condition of exercising the Options, that the Optionee execute in undertaking,
in. such a form as the Company shall reasonably specify, that the Stock is being
purchased only for investment and without any then present intention to sell or
distribute such shares.
5. Termination of Options.
----------------------
(a) All unvested Options shall expire upon any termination of
Optionee's employment with the Company, whether voluntary or involuntary. or
upon the death or disability of Optionee. All vested Options shall expire at the
earliest of the following.
(1) Ten (10) years from the date hereof;
(2) Three (3) months after voluntary or involuntary
termination of Optionee's employment other than termination as described in
Paragraphs (c) or (d) below;
(3) Upon discharge of Optionee for cause (as determined in
the sole discretion of the Plan Administrator); or
(4) One (1) year after Optionee's death or disability.
(b) In the event of a merger, consolidation, tender offer,
takeover bid, sale of assets or filing of a Statement of latent to Dissolve (or
the filing of Articles of Dissolution), as described in Subsections (1) through
(4) of Section 8(a), all unexercised Options shall terminate on that date
specified in Section 8(c). However, if the merger, consolidation, tender offer,
takeover bid or sale of assets does not occur or if a Statement of Revocation of
Voluntary Dissolution Proceedings is filed within the thirty (30) day period
following the date of filing a Statement of Intent to Dissolve, as the case may
be, and as described in Subsections (1) through (4) of Section 8(1), all Options
which are terminated pursuant to this Section 5(b) shall be reinstated as if no
action with respect to any of the said events had been contemplated or taken by
any party thereto and all Optionees shall be returned to their positions on the
date of termination.
6. Stock. In the case of any stock split, stock dividend or like
-----
change in the nature of shares of Stock covered by this Agreement, the number of
shares and exercise price shall be proportionately adjusted as set forth in
Section 5(m) of the Plan.
7. Exercise of Option. Options shall be exercisable, in full or in
------------------
pan, at any time after vesting, until termination; provided, however, that any
Optionee who is subject to the
reporting and liability provisions of Section 16 of the Securities Exchange Act
of 1934 with respect to the Common Stock shall be included from selling or
transferring any Common Stock or other security underlying an Option during the
six (6) mouths immediately following the gram of that Option. If less than all
of the shares included in the vested portion of any Option are purchased, the
remainder may be purchased at any subsequent time prior to the expiration of the
Option term. No portion of any Option for less than one hundred (100) shares (as
adjusted pursuant to Section 5(m) of the Plan) may be exercised: provided, that
if the vested portion of any Option is less than one hundred (100) shares, it
may be exercised with respect to &U shares for which it is vested. Only whole
shares may be issued pursuant to an Option, and to the extent that an Option
covers less than one (1) stare, it is unexercisable.
Each exercise of the Option shall be by means of delivery of a notice
of election to exercise (which may be in the form attached hereto as Exhibit B
to the Secretary of the Company at its principal executive office, specifying
the number of shares of Common Stock to be purchased and accompanied by payment
in cash by certified check or cashier's check in the amount of the full exercise
price for the Common Stock to be purchased. In addition to payment in cash by
certified check or cashier's check, an Optionee or transferee of an option may
pay for all or any portion of the aggregate exercise Price by complying with one
or more of the following alternatives:
(a) with the prior approval of the Plan Administrator, by
delivering to the Company shares of Common Stock previously held by such person,
which shares of Common Stock shall have a fair market value at the date of
exercise (as determined by the Plan Administrator) equal to the aggregate
purchase price to be paid by the Optionee upon such exercise;
(b) by delivering a properly executed exercise notice together
with irrevocable instructions to a broker promptly to sell or margin a
sufficient portion of the shares and deliver directly to the Company the amount
of sale or margin loan proceeds to pay the exercise price; or
(c) by complying with any other payment mechanism approved by
the Plan Administrator at the time of exercise.
It is a condition precedent to the issuance of shares of Common Stock that the
Optionee execute and deliver to the Company a Stock Transfer Agreement, in a
form acceptable to the Company, to the extent required pursuant to the terms
thereof. It is also a condition precedent to the issuance of shares of Common
Stock that the Optionee become a party to that certain Amended and Restated
Shareholders' Agreement, dated as of August 15, 1997, between the Company and
its shareholders as a "shareholder" (as such term is defined therein).
8. Change in Control.
-----------------
(a) Notwithstanding the vesting schedule set forth in Section 2,
and subject to the Provisions of Sections 13 and 14 below, the right to purchase
all Option Shares shall vest, and the Optionee may purchase up to the full
extent of Option Shares for which
Options have been granted to such Optionee and for which the Options have not
been exercised under the following conditions:
(1) The Optionee may conditionally purchase, any or all
Option Shares during the period commencing twenty-seven (27) days and ending
seven (7) days prior to the scheduled effective date of a merger or
consolidation (as such effective date may be delayed from time to time) wherein
the Company is not to be the surviving corporation, which merger or
consolidation is not between or among the Company and other corporations related
to or affiliated with the Company;
(2) The Optionee may conditionally purchase any or all
Option Shares during the period commencing on the initial date of a tender offer
of takeover bid for the Option Shares (other than a tender offer by the Company)
subject to the Securities Exchange Act of 1934 and the rules promulgated
thereunder and ending an the day preceding the scheduled termination date of
acceptance of tenders of shares by the offeror under any such tender offer or
takeover bid (as such termination date may be extended by such offeror);
(3) The Optionee may conditionally purchase any or all
Option Shares during the period commencing an the date the shareholders: of the
Company approve a sale of all or substantially all ft assets of the Company and
ending seven (7) days prior to the scheduled closing date of such sale (as such
closing date may be delayed from time to time); and
(4) The Optionee may conditionally purchase any or all
Option Shams during the period commencing on the date the Company files a
Statement of Intent to Dissolve and ending thirty (30) days later but not in any
event later than the day before the Company files Articles of Dissolution.
(b) If the merger, consolidation, tender offer, takeover bid,
sale of assets or dissolution, as the cast may be, and as described in
Subsections (1) through (4) of Section 8(a), once commenced, is cancelled or
revoked, the conditional purchase of shares for which the Option to purchase
would not have otherwise been exercisable at the time of said calculation or
revocation, but for the operation of Section 8(a), shall be rescinded. With
respect to all other shares conditionally purchased, the Optionee may rescind
such purchase at his or her Option.
(c) If the merger, consolidation, tender offer, takeover bid or
sale of assets does occur or thirty (30) days passes after a Statement of intent
to Dissolve is filed (or Articles of Dissolution are filed), as the case may be,
and as described in Subsections (1) through (4) of Section 8(a), and the
Optionee has not conditionally purchased all Option Shares, all unexercised
Options shall terminate on the effective, termination or closing date, or thirty
(30) days after the Statement of Interest ED Dissolve is filed (but not later
than the day before Articles of Dissolution are filed), as the case may be.
(d) If the Company shall be the surviving corporation in any
merger or is a party to a merger or consolidation which is between or among the
Company and other corporations related to or affiliated with the Company, any
Option granted hereunder shall
pertain and apply to the securities to which a holder of the number of shares of
common stock subject to the option would have been entitled upon the
consummation of such merger or consolidation.
(e) Nothing herein shall allow the Optionee to purchase Option
Shares, the Options for which hive expired.
(f) Section 5(a) of the Plan provides that any and all options
that are outstanding under the Plan will become immediately vested and fully
exercisable during specified exercise periods following the occurrence of
certain events involving a change in control of the Company. Section 5(a) of the
Plan also provides that if the shareholders of the Company receive shares of
stock of another company in a transaction providing for the conversion or
exchange of all or substantially all of the outstanding shares of Common Stock.
then options granted under the Plan will become exercisable for a number of
shares of stock of the other company determined using the same conversion or
exchange ratio applicable to the transaction, unless the Board of Directors of
the Company determines that some or all of such options shall instead terminate.
9. Subject to 1996 Stock Option Plan. The terms of the Options
---------------------------------
are subject to the provisions of the Plan, as the same may from time to time be
amended, and any inconsistencies between this Agreement and the Plan, as the
same may be from time to time amended, shall be governed by the provisions of
the Plan, a copy of which has been delivered to the Optionee, and which is
available for inspection at the principal offices of the Company.
10. Program Subject to Change. The Program and the policies
-------------------------
governing grants of options under the Program, including, without limitation,
grant timing and eligibility standards, are subject to change at any time after
the date of this Agreement by the Board of Directors of the Company or its
Compensation Committee.
11. Professional Advice. The acceptance of the Options and the sale
-------------------
of Common Stock issued pursuant to the exercise of Options may have consequences
under federal and state tax and securities laws which may vary depending upon
the individual circumstances of the Optionee. Accordingly, the Optionee
acknowledges that he or she has been advised to consult his or her personal
legal and tax advisor in connection with this Agreement and his or her dealings
with respect to Options for the Common Stock. Without limiting other matters to
be considered, the Optionee should consider whether upon the exercise of
options, the Optionee will file an election with the Internal Revenue Service
pursuant to Section 83(b) of the Code.
12. No Employment Relationship. Whether or not any Options are to
--------------------------
be granted antler the Plan shall be exclusively within the discretion of the
Plan Administrator, and nothing contained in the Plan or this Agreement shall be
construed as giving any person any right to participate under the Plan. The
grant of an Option shall in no way constitute any form of agreement or
understanding binding on the Company or any Related Company, express or implied,
that the Company or any Related Company will employ or contract with an Optionee
for any length of time, nor shall it interfere in any way with the Company's or,
where applicable,
a Related Company's right to terminate Optionee's employment at any time, which
right is hereby reserved,
13. Securities Laws. Notwithstanding the foregoing, no Option shall
---------------
vest or be exercisable unless and until all requirements imposed by or pursuant
to Section 5(l) of the Plan are satisfied.
SECTION 5(1) OF THE PLAN DESCRIBES CERTAIN IMPORTANT CONDITIONS RELATING TO
FEDERAL AND STATE SECURITIES LAWS THAT MUST BE SATISFIED BEFORE THIS OPTION CAN
BE EXERCISED AND BEFORE THE COMPANY CAN ISSUE ANY OPTION SHARES TO THE OPTIONEE.
THE COMPANY HAS NO OBLIGATION TO REGISTER THE OPTION SHARES. THE OPTIONEE WILL
NOT BE ABLE TO EXERCISE THIS OPTION UNLESS AN EXEMPTION FROM REGISTRATION IS
AVAILABLE. AT THE PRESENT TIME, EXEMPTIONS FROM REGISTRATION UNDER FEDERAL AND
STATE SECURITIES LAWS ARE VERY LIMITED AND MIGHT BE UNAVAILABLE TO THE OPTIONEE
PRIOR TO THE EXPIRATION OF TIES OPTION. CONSEQUENTLY, THE OPTIONEES MIGHT HAVE
NO OPPORTUNITY TO EXERCISE THIS OPTION AND TO RECEIVE OPTION SHARES UPON SUCH
EXERCISE.
14. Notwithstanding the foregoing, the Company may restrict the
Optionee's right to purchase Option Shares after an initial public offering of
Common Stock pursuant to the Securities Act of 1933, as amended, until a date
ninety (90) days following completion of the initial public offering.
15. Entire Agreement. This Agreement is the only agreement between
----------------
the Optionee and the Company with respect to the Options, and this Agreement and
the Plan supersede all prior and contemporaneous oral and written statements and
representations and contain the entire agreement between the parties with
respect to the Options.
16. Notices. Any notice required or permitted to be made or given
-------
hereunder shall be mailed or delivered personally to the addresses set forth
below, or as changed from time to time by written notice to the other:
The Company: BRIAZZ, INC.
0000 0xx Xxx., Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
The Optionee. (As set fourth in the Notice)
BRIAZZ, INC.
By:
-------------------------
Xxxxxx X. Xxxxxxxx
Chief Executive Officer
THERE MAY NOT BE PRESENTLY AVAILABLE EXEMPTIONS FROM THE REGISTRATION
REQUIREMENTS OF APPLICABLE FEDERAL AND STATE SECURITIES LAWS FOR THE ISSUANCE OF
SHARES OF STOCK UPON EXERCISE OF THESE OPTIONS. ACCORDINGLY, THESE OPTIONS
CANNOT BE EXERCISED UNLESS THESE OPTIONS AND THE SHARES OF STOCK TO BE ISSUED
UPON EXERCISE OF THE OPTIONS ARE REGISTERED OR AN EXEMPTION FROM SUCH
REGISTRATION REQUIREMENTS IS AVAILABLE. THE SHARES OF STOCK ISSUED PURSUANT TO
THE EXERCISE OF, OPTIONS WILL BE "RESTRICTED SECURITIES" AS DEFINED IN RULE 144
UNDER THE SECURITIES ACT OF 1933 AND WILL BEAR A LEGEND RESTRICTING RESALE
UNLESS THEY ARE REGISTERED UNDER STATE AND FEDERAL SECURITIES LAWS OR AN
EXEMPTION FROM REGISTRATION IS AVAILABLE. THE COMPANY IS NOT OBLIGATED TO
REGISTER THE SHARES OF STOCK OR TO MAKE AVAILABLE ANY EXEMPTION FROM
REGISTRATION.
EXHIBIT A
---------
--------------------------------------------------------------------------------
Briazz Inc.
Notice of Grant of Stock Options ID: 00-0000000
and Option Agreement 0000 0xx Xxx. So, Suite 000
Xxxxxxx, XX 00000
--------------------------------------------------------------------------------
Name Option Number: 00000000
Street Plan: 1997
City, State Zip ID: 0000000
--------------------------------------------------------------------------------
Effective _____, you have been granted a(n) ______________ to buy X shares
of Briazz Inc. (the Company) stock at $_______ per share.
The total option price of the shares granted is $_________.
Shares in each period will become fully vested on the date shown.
Shares Vest Type Full Vest Expiration
X/4 On Vest Date 5/1/00 5/1/09
X/4 On Vest Date 5/1/01 5/1/09
X/4 On Vest Date 5/1/02 5/1/09
X/4 On Vest Date 5/1/03 5/1/09
---------------------------------------------------------------------------
By your signature and the Company's signature below, you and the Company
agree that these options are granted under and governed by the terms and
conditions of the Company's Stock Option Plan as amended and the Option
Agreement, all of which are attached and made a part of this document.
---------------------------------------------------------------------------
_____________________________ ____________________________
Briazz Inc. Date
_____________________________ ____________________________
Signature Date
RETURN TO BRIAZZ
EXHIBIT B
---------
Notice of Election to Exercise
------------------------------
This Notice of Election to Exercise shall constitute proper notice
pursuant to Section 5(h) of the BRIAZZ, INC. 1996 Amended Stock Option Plan (the
"Plan") and Section 7 of that certain Stock Option Agreement (the "Agreement")
dated as of the ____ day of __________ 2000 between BRIAZZ, INC. (the "Company")
and the undersigned,
The undersigned hereby elects to exercise Optionee's option to
purchase ___________ shares of the common stock of the Company at a price of
$__________ per share, for aggregate consideration of $__________, on the terms
and conditions set forth in the Agreement and the Plan. Such aggregate
consideration, in the form specified in Section 7 of the Agreement, accompanies
this notice.
The undersigned has executed this Notice this ____ day of __________,
200_.
_____________________________
Signature
_____________________________
Name (typed or printed)
