Exhibit 4.5
BRIAZZ, INC.
1996 AMENDED
STOCK OPTION PLAN
AMENDED AND RESTATED
STOCK OPTION AGREEMENT
THIS AGREEMENT is entered into as of the date set forth below between BRIAZZ,
INC., a Washington corporation (the "Company"), and the undersigned optionee
(the "Optionee"). Unless otherwise defined herein, the terms defined in the 1996
Amended Stock Option Plan (the "Plan") shall have the same defined meanings in
this Amended and Restated Stock Option Agreement (the "Agreement").
WHEREAS, the Company issued certain options to purchase the Common
Stock of the Company to the Optionee in consideration for his services on the
Board of Directors of the Company at a time when the directors were not eligible
to participate in such option grants under the Plan (the "Non-Plan Options");
WHEREAS, the Non-Plan Options were made expressly subject to the terms
of the Plan at their times of issuance;
WHEREAS, the Company effected a 100-for-1 reverse split on July 16,
1999 and a 6-for-1 reverse split on April 2, 2001 (collectively, the "Stock
Splits");
WHEREAS, under the terms of the Plan and the Non-Plan Options, the
terms of the Non-Plan Options automatically adjust to account for the Stock
Splits; and
WHEREAS, the Company and the Optionee now desire to amend and restate
their understandings under the Non-Plan Options to reflect all such adjustments
as of the date hereof;
NOW, THEREFORE, the Company and the Optionee agree that this Amended
and Restated Option Agreement hereby supercedes and replaces the Non-Plan
Options and represents the sole understanding between the Company and the
Optionee with respect to the options granted to the Optionee pursuant to the
Non-Plan Options and the Company agrees to offer to the Optionee the option to
purchase (upon the terms and conditions set forth herein, in the Plan, and in
the notice of grant of stock options and option agreement (the "Notice)) the
total number of Option Shares set forth in the first paragraph of the Notice.
1. Options not Transferable. This Option may not be transferred in any
------------------------
manner other than by will or by the laws of descent or distribution and may be
exercised during the lifetime of Optionee only by Optionee. The terms of the
Plan and this Agreement shall be binding upon the executors, administrators,
heirs, successors and assigns of the Optionee. 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.
2. 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 an 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.
3. Termination of Options.
----------------------
(a) Unless otherwise provided for in Section 8 of this Agreement
and Section 5 of the Plan, all unvested Options shall expire upon any
termination of Optionee's employment or contractual relationship with the
Company, whether voluntary or involuntary, or upon the death or Disability of
Optionee.
(b) Unless otherwise provided for in Section 8 of this Agreement
and Section 5 of the Plan, all vested Options shall expire at the earliest of
the following:
(1) ten (10) years from the date of the Notice;
provided, however, that the expiration date of any
Incentive Stock Option granted to a
greater-than-10% shareholder shall not be later
than five (5) years from the date of Grant;
(2) three (3) months after voluntary or involuntary
termination of Optionee's employment or
contractual relationship with the Company other
than termination as described in Paragraphs (3) or
(4) below;
(3) upon termination of Optionee's employment or
contractual relationship with the Company for
cause (as determined in the sole discretion of the
Plan Administrator); or
(4) one (1) year after the termination of Optionee's
employment or contractual relationship with the
Company on account of Optionee's death or
Disability.
4. Adjustments to Total Number of Option Shares. In the case of any
--------------------------------------------
stock split, stock dividend or like change in the nature of shares of Common
Stock covered by this Agreement, the number of Option Shares set forth in the
Notice and the Exercise Price set forth in the Notice shall be proportionately
adjusted in accordance with Section 5(m) of the Plan.
5. Exercise of Option. Options shall be exercisable, in full or in
------------------
part, 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
precluded from selling or transferring any Common Stock or other security
underlying an Option during the six (6) months immediately following the grant
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 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) share, 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 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.
-2-
It is a condition precedent to the issuance of shares of Common Stock that the
Optionee executes and delivers to the Company a Stock Transfer Agreement, in a
form acceptable to the Company, to the extent required pursuant to the terms
thereof.
6. Type of Option; Tax Consequences. Unless otherwise provided for in
--------------------------------
the Notice, Options granted in accordance with the Plan shall be Non-Qualified
Stock Options ("NSO"). If the Notice provides that Options granted to Optionee
are Incentive Stock Options ("ISO"), such Options are intended to qualify as
Incentive Stock Options under Section 422 of the Code. Set forth below is a
brief summary as of the date of this Agreement of some of the federal tax
consequences of exercise of this Option and disposition of the Option Shares.
THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE
SUBJECT TO CHANGE. THE OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING
THIS OPTION OR DISPOSING OF THE OPTION SHARES.
(a) Exercise of NSO. There may be a regular federal income tax
liability, at ordinary income tax rates, upon the exercise of an NSO. If
Optionee is an Employee or a former Employee, the Company will be required to
withhold from Optionee's compensation or collect from Optionee and pay to the
applicable taxing authorities an amount in cash equal to a percentage of this
compensation income at the time of exercise, and may refuse to honor the
exercise and refuse to deliver Shares if such withholding amounts are not
delivered at the time of exercise.
(b) Exercise of ISO. If this Option qualifies as an ISO, there will
be no regular federal income tax liability upon the exercise of the Option,
although the Optionee may be subject to the alternative minimum tax in the year
of exercise.
(c) Disposition of Shares. The disposition of Option Shares is
generally a taxable event. The tax treatment will depend on whether the Option
is an ISO or an NSO, and on the length of time for which Optionee has held the
Option Shares.
7. Notice of Disqualifying Disposition of ISO Shares. If the Option
-------------------------------------------------
granted to Optionee herein is an ISO, and if Optionee sells or otherwise
disposes of any of the Option Shares acquired pursuant to the ISO on or before
the later of (1) the date two years after the Date of Grant, or (2) the date one
year after the date of exercise, the Optionee agrees to report sales of such
shares prior to the above determined date to the Company within one (1) business
day after such sale is concluded. The Optionee also agrees to pay to the
Company, within five (5) business days after such sale is concluded, the amount
necessary for the Company to satisfy its withholding requirement required by the
Code in the manner specified in Section 5(l)(2) of the Plan. Nothing in this
Section 6 is intended as a representation that Common Stock may be sold without
registration under state and federal securities laws or an exemption therefrom,
or that such registration or exemption will be available at any specified time
8. Change in Control.
-----------------
(a) Notwithstanding the vesting schedule set forth in the Notice, and
subject to the Provisions of Section 13 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
or 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 on 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-
(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 the 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 Shares 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 case 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 Intent to 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 have expired.
(f) Section 5(n) 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(n) 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. Plan Subject to Change. The Plan and the policies governing grants
----------------------
of Options under the Plan, including, without limitation, grant timing, vesting
schedules, 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.
-4-
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 under 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(l) 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 SUCH ARE REGISTERED OR 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 THIS OPTION.
CONSEQUENTLY, THE OPTIONEES MIGHT HAVE NO OPPORTUNITY TO EXERCISE THIS OPTION
AND TO RECEIVE OPTION SHARES UPON SUCH EXERCISE.
Notwithstanding the foregoing, the Company may restrict the Optionee's
right to purchase Option Shares after a public offering of Common Stock pursuant
to the Securities Act of 1933, as amended, until a date ninety (90) days
following completion of the public offering.
14. 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, including the Non-Plan Options, and contain the entire
agreement between the parties with respect to the Options.
15. 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 0/xx/ Xxx., Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
The Optionee: (As set forth in the Notice)
-5-
Optionee acknowledges receipt of the Notice and a copy of the Plan. Optionee
represents that he or she is familiar with the terms and provisions thereof, and
hereby accepts this Option subject to all of the terms and provisions thereof.
Optionee has reviewed the Plan, the Notice and this Option Agreement in their
entirety, has had an opportunity to obtain the advice of counsel prior to
executing this Option and fully understands all provisions of the Option.
Optionee hereby agrees to accept as binding, conclusive and final all decisions
or interpretations of the Plan Administrator upon any questions arising under
the Plan or this Option. Optionee further agrees to notify the Company upon any
change in the residence address indicated in the Notice.
BRIAZZ, INC.
By: /s/ Xxxxx X. Xxxxxx 10/17/01
---------------------------------------- --------------------------
Date
Its: CFO/Secretary/Treasurer
---------------------------------------
OPTIONEE
/s/ Xxx Xxxxxxxxxxxx 9-9-01
-------------------------------------------- --------------------------
Xxx Xxxxxxxxxxxx Date
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.
-6-
EXHIBIT A
---------
Briazz Inc.
Notice of Grant of Stock Options ID: 00-0000000
and Option Agreement 0000 0xx Xxx. Xx, Xxxxx 000
Xxxxxxx, XX 00000
--------------------------------------------------------------------------------
Xxx Xxxxxxxxxxxx Option Number: 00000000
Street Plan: 1996
City, State Zip ID: 0000009
--------------------------------------------------------------------------------
Effective as of the individual dates of grant of the Non-Plan Options,
you have been granted a Non-Qualified Stock Option to buy 28,334 shares
of Briazz Inc. (the "Company") common stock at the prices per share set
forth below (the "Shares"):
Original
Date of Grant Number of Shares Price Per Share Total Price
------------- ---------------- --------------- -----------
February 3, 1999 167 $1,800.00 $300,600.00
November 1, 1999 10,000 $6.00 $ 60,000.00
November 1, 2000 16,500 $1.50 $ 24,750.00
November 1, 2000 1,667 $1.50 $ 2,500.50
------ - -----------
TOTALS: 28,334 $387,850.50
The total option price of the Shares is Three Hundred Eighty Seven
Thousand Eight Hundred Fifty Dollars and Fifty Cents ($387,850.50.)
The Shares are fully vested.
--------------------------------------------------------------------------------
By your signature and the Company's signature below, you and the Company agree
that these options are governed by the terms and conditions of the Company's
Stock Option Plan as amended and the Amended and Restated Option Agreement, all
of which are attached and made a part of this document.
--------------------------------------------------------------------------------
/s/ Xxxxx X. Xxxxxx 10/17/01
---------------------------------- -------------------------------
Briazz Inc. Date
/s/ Xxx Xxxxxxxxxxxx 9-9-01
---------------------------------- -------------------------------
Xxx Xxxxxxxxxxxx Date
-7-
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 5 of that certain Amended and Restated Stock Option
Agreement (the "Agreement") dated as of the ____ day of __________ 2001 between
BRIAZZ, INC. (the "Company") and the undersigned Optionee ("Optionee").
Optionee 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 5 of the Agreement, accompanies
this notice.
The undersigned have executed this Notice this ____ day of
__________, 200_.
Submitted by: Accepted by:
OPTIONEE BRIAZZ, INC.
________________________ __________________________
Signature By
________________________ __________________________
Print Name Title
Address: Address:
------- -------
________________________ __________________________
________________________ __________________________
__________________________
-8-
