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EXHIBIT 4.3
XXXXXXXX COFFEE, INC.
2000 NON-EMPLOYEE DIRECTORS
STOCK OPTION PLAN
This Xxxxxxxx Coffee, Inc. 2000 Non-Employee Directors Stock Option
Plan, dated as of October 20, 2000 (the "Plan") is entered into by and among
Xxxxxxxx Coffee, Inc., a Delaware corporation (the "COMPANY"), on the one hand,
and Xxxxx Xxxxx, Xxxxxxxx Xxxxxxx and Xxxx X. Xxxxxxxx (individually, the
"GRANTEE" and collectively, the "GRANTEES") on the other hand.
RECITALS
X. Xxxxxx. Xxxxx, Xxxxxxx and Xxxxxxxx have served as independent
directors of the Company generally since 1996. In light of the operational
challenges that the Company has experienced this past year, including the
acquisition of Coffee People, Inc. on July 7, 1999, these independent directors
have been called upon to work closely with the Company's officers providing
invaluable advice and direction beyond that which would ordinarily be expected
from members of the Board of Directors.
B. In appreciation of the service rendered by these independent
directors and for the purpose of encouraging and rewarding their continuing
contributions to the performance of the Company and further aligning their
interests with the interests of the Company's stockholders, the Company believes
that it is in the best interests of the Company and its stockholders to grant to
each of the Grantees options to purchase 8,000 shares of the Company's common
stock, $0.01 par value per share (the "COMMON STOCK").
AGREEMENT
NOW, THEREFORE, to evidence the grant of options by the Company and to
set forth the terms and conditions of the grant of options, the Company and
Grantees hereby agree as follows:
1. DEFINITIONS. The following terms, as used in this Plan, have the
meanings ascribed to them in this Section 1.
(a) "BOARD" means the Board of Directors of the Company.
(b) "CLOSING PRICE" means the closing price on any given
trading day of the Common Stock on the Nasdaq National Market (or any subsequent
exchange or market system upon which the Company's Common Stock is principally
traded) as reported in the Transaction Index of the Wall Street Journal.
(c) "COMPENSATION COMMITTEE" means the Compensation
Committee of the Board.
(d) "EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended.
(e) "EXERCISE DATE" means any date on which a Grantee
exercises Options.
(f) "EXERCISE DATE VALUE" means the product of: (i) the
number of shares of Common Stock delivered to the Company and (ii) the Closing
Price of the Common Stock on the Exercise Date.
(g) "EXERCISE SHARES" means those shares of Common Stock
with respect to which Options are being exercised.
(h) "NON-EMPLOYEE DIRECTOR" means Xxxxx Xxxxx, Xxxxxxxx
Xxxxxxx or Xxxx X. Xxxxxxxx, each a duly elected or appointed member of the
Company's Board who is not and has not since the
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beginning of the Company's most recently completed fiscal year been an employee
of, or a compensated consultant to, the Company or any of its affiliates.
(i) "OPTION(S)" means option(s) to purchase shares of
Common Stock granted under this Plan.
(j) "PLAN" means the Xxxxxxxx Coffee, Inc. 2000 Non-Employee
Directors Stock Option Plan.
(k) "SECURITIES ACT" means the Securities Act of 1933, as
amended.
2. GRANT OF OPTIONS. The Company hereby grants options to the Grantees
as follows:
(a) The Company grants to Xx. Xxxxx, effective as of the
date hereof, Options to purchase up to 8,000 shares of Common Stock on the terms
and subject to the conditions set forth herein and the approval from Nasdaq of
the Notification Form for Listing of Additional Shares;
(b) The Company grants to Xx. Xxxxxxx, effective as of
the date hereof, Options to purchase up to 8,000 shares of Common Stock on the
terms and subject to the conditions set forth herein and the approval from
Nasdaq of the Notification Form for Listing of Additional Shares; and
(c) The Company grants to Xx. Xxxxxxxx, effective as of
the date hereof, Options to purchase up to 8,000 shares of Common Stock on the
terms and subject to the conditions set forth herein and the approval from
Nasdaq of the Notification Form for Listing of Additional Shares.
3. ADMINISTRATION OF PLAN. The Compensation Committee has full
authority to interpret the Plan, to promulgate such rules and regulations with
respect to the Plan, as it deems desirable, and to make all other determinations
necessary or desirable for the administration of the Plan. All decisions,
determinations and interpretations by the Compensation Committee shall be
binding upon the Grantee and all other interested persons.
4. EXERCISABILITY AND EXERCISE PRICES. The Options will become
exercisable at an option exercise price of $1.34 per share of Common Stock on
October 20, 2001, if the Grantee has remained a Non-Employee Director for the
entire period from the date hereof to October 20, 2001. Any Options that have
not become exercisable at the time the Grantee ceases to be a Non-Employee
Director shall terminate.
5. TERMINATION OF OPTIONS.
(a) Unless an earlier termination date occurs as
specified in Section 5(b) herein, the Options will expire and become
unexercisable (whether or not then exercisable) on the tenth (10th) anniversary
of the date hereof ("EXPIRATION DATE").
(b) If a Grantee ceases to be a Non-Employee Director for
any reason prior to the Expiration Date: (i) all Options that have not otherwise
become exercisable, as of the date Grantee ceases to be a Non-Employee Director,
will immediately terminate and become unexercisable; and (ii) all Options that
have become exercisable will terminate and become unexercisable on and after the
date one hundred eighty (180) days following the date of Xxxxxxx's termination
of employment.
(c) In the event of the death of a Grantee (1) while
Grantee is a Non-Employee Director of the Company, or (2) within the period
after termination of such status during which he is permitted to exercise an
Option, such Option may be exercised by any person or persons designated by the
Grantee on a beneficiary designation form adopted by the Compensation Committee
for such purpose or, if there is no effective beneficiary designation form on
file with the Company, by the executors or administrators of the Grantee's
estate or by any person or persons who shall have acquired the Option directly
from the Grantee through his will or the applicable laws of descent and
distribution.
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6. REGISTRATION OF OPTIONS. After execution of this Plan, the
Company, at its expense, shall file a registration statement on Form S-8 to
register the issuance and exercise of the Options.
7. RESTRICTIONS ON EXERCISE. All Options granted under the Plan
shall be subject to the requirement that, if at any time the Company shall
determine, in its discretion, that the listing, registration or qualification of
the shares subject to Options granted with respect to any securities exchange or
under any state or federal law, or the consent or approval of any government or
regulatory body or authority, is necessary or desirable as a condition of, or in
connection with, the granting of such an Option or the issuance, if any, or
purchase of shares in connection therewith, such Option may not be exercised in
whole or in part unless such listing, registration, qualification, consent or
approval shall have been effected or obtained free of any conditions not
acceptable to the Company. Unless the shares of stock to be issued upon exercise
of an Option granted under the Plan have been effectively registered under the
Securities Act, as now in force or hereafter amended, the Company shall be under
no obligation to issue any shares of stock covered by any Option unless the
person who exercises such Option, in whole or in part, shall give a written
representation and undertaking to the Company satisfactory in form and scope to
counsel to the Company and upon which, in the opinion of such counsel, the
Company may reasonably rely, that he is acquiring the shares of stock issued to
him pursuant to such exercise of the Option for his own account as an investment
and not with a view to, or for sale in connection with, the distribution of any
such shares of stock, and that he will make no transfer of the same except in
compliance with any rules and regulations in force at the time of such transfer
under the Securities Act, or any other applicable law or regulation, and that if
shares of stock are issued without such registration, a legend to this effect
may be endorsed upon the securities so issued and the Company may order its
transfer agent to stop transfer of such shares.
8. NON-TRANSFERABILITY OF OPTIONS. None of the Options are
assignable or transferable, in whole or in part, and may not, directly or
indirectly, be offered, transferred, sold, pledged, assigned, alienated,
hypothecated or otherwise disposed of or encumbered (including without
limitation by gift, operation of law or otherwise) other than by will or by the
laws of descent and distribution to the estate of Grantee upon his death;
provided that, the deceased Grantee's beneficiary or the representative of his
estate acknowledges and agrees in writing, in a form reasonably acceptable to
the Compensation Committee to be bound by this Plan as if such beneficiary or
the estate were the Grantee.
9. WITHHOLDING. Whenever shares of Common Stock are to be issued
pursuant to the exercise of Options, the Compensation Committee may require the
Grantee to remit to the Company an amount sufficient to satisfy any applicable
federal, state and local tax withholding requirements. Upon request by Xxxxxxx,
the Company may also withhold shares of Common Stock to satisfy applicable
withholding requirements, subject to any rules adopted by the Compensation
Committee regarding compliance with applicable law, including, but not limited
to, Section 16(b) of the Exchange Act.
10. MANNER OF EXERCISE.
(a) To the extent that the Options have become and remain
exercisable as provided in Section 4 and Section 5 herein, and subject to such
reasonable administrative regulations as the Compensation Committee may adopt,
the Options may be exercised, by written notice to the Compensation Committee,
specifying the number of Exercise Shares and the Exercise Date. The Options
shall be deemed to be exercised when the Secretary or other designated official
of the Company receives the Grantee's written notice, together with payment of
the exercise price and any amounts required under Section 8 herein. On or before
the Exercise Date, Grantee shall deliver to the Company full payment for the
Options being exercised in cash, or cash equivalent satisfactory to the
Compensation Committee, and in an amount equal to the aggregate purchase price
for the Exercise Shares.
(b) Subject to the discretion of the Compensation
Committee, Grantee may, in lieu of cash, either: (i) deliver shares of Common
Stock having an Exercise Date Value equal to the purchase price of the Exercise
Shares; or (ii) deliver a combination of cash and shares of Common Stock with an
aggregate value and Exercise Date Value equal to the purchase price of the
Exercise Shares, subject to such rules and regulations as may be adopted by the
Compensation Committee to provide for the compliance of such payment procedure
with applicable law, including Section 16(b) of the Exchange Act.
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(c) No Option shall be exercisable except in respect of
whole shares, and fractional share interests shall be disregarded. Not less than
100 shares of Common Stock may be purchased at one time and Options must be
exercised in multiples of 100.
(d) The Compensation Committee may require Grantee to
furnish or execute such other documents as the Compensation Committee reasonably
deems necessary: (i) to evidence such exercise, and (ii) to comply with or
satisfy the requirements of the Securities Act, applicable state securities laws
or any other law.
11. NO RIGHTS AS STOCKHOLDER. Grantee will have no voting or other
rights as a stockholder of the Company with respect to any shares of Common
Stock covered by the Options until the exercise of such Options and the issuance
of a certificate or certificates to him for such shares of Common Stock. No
adjustment will be made for dividends or other rights for which the record date
is prior to the issuance of such certificate or certificates.
12. CAPITAL ADJUSTMENTS. The number and any applicable option
price of the shares of Common Stock covered by the Options will be
proportionately and appropriately adjusted by the Compensation Committee to
reflect any stock dividend, stock split or share combination of the Common Stock
or any recapitalization of the Company. Subject to any required action by the
stockholders of the Company, in any merger, consolidation, reorganization,
exchange of shares, liquidation or dissolution, the Options will pertain to the
securities and other property, if any, that a holder of the number of shares of
Common Stock covered by the Options would have been entitled to receive in
connection with such event.
13. REORGANIZATIONS; MERGERS; CHANGES IN CONTROL. Subject to the
other provisions of this Section 13, if the Company shall consummate any
reorganization or merger or consolidation in which holders of shares of the
Company's Common Stock are entitled to receive in respect of such shares any
other consideration (including, without limitation, a different number of such
shares), each Option outstanding under this Plan shall thereafter be
exercisable, in accordance with the Plan, only for the kind and amount of
securities, cash and/or other property receivable upon such reorganization or
merger or consolidation by a holder of the same number of shares of Common Stock
as are subject to that Option immediately prior to such reorganization or merger
or consolidation, and any appropriate adjustments will be made to the exercise
price thereof. In addition, if a Change in Control (as defined below) occurs and
in connection with such Change in Control any recipient of an Option granted
under the Plan ceases to be a director of the Company, then such recipient shall
have the right to exercise his options granted under the Plan in whole or in
part during the applicable time period provided in Section 5 without regard to
any vesting requirements. For purposes hereof, but without limitation, a
director will be deemed to have ceased to be a director of the Company in
connection with a Change in Control if such director (i) is removed by or
resigns upon request of a Person (as defined in paragraph (a) below) exercising
practical voting control over the Company following the Change in Control, or a
person acting upon authority or at the instruction of such Person, or (ii) is
willing and able to continue as a director of the Company but is not re-elected
to or retained on the Company's Board by the Company's stockholders through the
stockholder vote or consent action for election of directors that precedes and
is taken in connection with, or next follows, the Change of Control. For
purposes hereof, a "CHANGE IN CONTROL" means the following and shall be deemed
to occur if any of the following events occur:
(a) Any person, entity or group, within the meaning of
Sections 13(d) or 14(d) of the Exchange Act, but excluding the Company and its
subsidiaries and any employee benefit or stock ownership plan of the Company or
its subsidiaries and also excluding an underwriter or underwriting syndicate
that has acquired the Company's securities solely in connection with a public
offering thereof (such person, entity or group being referred to herein as a
"PERSON"), becomes the beneficial owner (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 50% or more of either the then
outstanding shares of Common Stock or the combined voting power of the Company's
then outstanding securities entitled to vote generally in the election of
directors;
(b) Individuals who, as of the effective date hereof,
constitute the Board of the Company (the "INCUMBENT BOARD") cease for any reason
to constitute at least a majority of the Board, provided that any individual who
becomes a director after the effective date hereof whose election, or nomination
for election by the Company's stockholders, is approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered to be a member of the Incumbent Board unless that individual was
nominated or elected by any Person having the power to exercise, through
beneficial ownership, voting agreement and/or proxy, 20% or more of either the
then outstanding shares of Common Stock or the combined voting power of the
Company's then
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outstanding voting securities entitled to vote generally in the election of
directors, in which case that individual shall not be considered to be a member
of the Incumbent Board unless such individual's election or nomination for
election by the Company's stockholders is approved by a vote of at least
two-thirds of the directors then comprising the Incumbent Board;
(c) Consummation by the Company of the sale or other
disposition by the Company of all or substantially all of the Company's assets
or a reorganization or merger or consolidation of the Company with any other
person, entity or corporation, other than:
(i) a reorganization or merger or consolidation that
would result in the voting securities of the Company
outstanding immediately prior thereto (or, in the case of a
reorganization or merger or consolidation that is preceded or
accomplished by an acquisition or series of related
acquisitions by any Person, by tender or exchange offer or
otherwise, of voting securities representing 5% or more of the
combined voting power of all securities of the Company,
immediately prior to such acquisition or the first acquisition
in such series of acquisitions) continuing to represent,
either by remaining outstanding or by being converted into
voting securities of another entity, more than 50% of the
combined voting power of the voting securities of the Company
or such other entity outstanding immediately after such
reorganization or merger or consolidation (or series of
related transactions involving such a reorganization or merger
or consolidation), or
(ii) a reorganization or merger or consolidation
effected to implement a recapitalization or reincorporation of
the Company (or similar transaction) that does not result in a
material change in beneficial ownership of the voting
securities of the Company or its successor; or
(d) Approval by the stockholders of the Company or an
order by a court of competent jurisdiction of a plan of liquidation of the
Company.
14. SECURITIES LAW REQUIREMENTS.
a. Legality of Issuance. No shares shall be issued upon
the exercise of the Option unless and until the Company has determined that:
(1) it and the Grantee have taken all actions required to
register the Shares under the Securities Act, or to perfect an
exemption from the registration requirements thereof;
(2) any applicable listing requirements of any stock exchange
on which the Common Stock is listed have been satisfied; and
(3) any other applicable provisions of state federal law have
been satisfied.
b. Restrictions on Transfer; Representations of Grantee;
Legends. Regardless of whether the offering and sale of shares pursuant to this
Plan have been registered under the Act or have been registered or qualified
under the securities laws of any state, the Company may impose restrictions upon
the sale, pledge or other transfer of such Shares (including the placement of
appropriate legends on stock certificates) and/or require a legal opinion from
counsel for Grantee if, in the judgment of the Company and its counsel, such
restrictions and/or legal opinion are necessary or desirable in order to achieve
compliance with the provisions of the Act, the securities laws of any state or
any other law. In the event that the shares issued upon the exercise of the
Options under this Plan are not registered under the Act but an exemption is
available which requires an investment representation or other representation,
Grantee shall be required to represent that such shares are being acquired for
investment, and not with a view to the sale or distribution thereof, and to make
such other representations as are deemed necessary or appropriate by the Company
and its counsel. Stock certificates evidencing shares acquired under this Plan,
pursuant to an unregistered transaction, shall bear the following restrictive
legend and such other restrictive legends as are required or deemed advisable
under the provisions of any applicable law:
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OR QUALIFIED UNDER THE CALIFORNIA SECURITIES
LAW OF 1968, AS AMENDED (THE "LAW"). IT IS UNLAWFUL TO CONSUMMATE A
SALE OR TRANSFER OF THESE SECURITIES, OR ANY INTEREST THEREIN, UNLESS
SUCH SECURITIES ARE EITHER REGISTERED UNDER THE SECURITIES ACT AND
QUALIFIED UNDER THE LAW OR EXEMPT FROM SUCH REGISTRATION AND
QUALIFICATION.
Any determination by the Company and its counsel in connection with any
of the matters set forth in this Section 14 shall be conclusive and binding on
all persons.
c. Exchange of Certificate. If, in the opinion of the
Company and its counsel, any legend placed on a stock certificate representing
Common Stock sold pursuant to this Plan is no longer required, the holder of
such certificate shall be entitled to exchange such certificate for a
certificate representing the same number of Common Stock but lacking such
legend.
15. NOTICES. All notices and other communications required or
permitted to be given under this Plan shall be in writing and shall be deemed to
have been given if delivered personally or sent by certified or express mail,
return receipt requested, postage prepaid, or by any recognized international
equivalent of such delivery, to the Company, or Grantee, as the case may be, at
the address of the Company's principal executive office. All such notices and
communications shall be deemed to have been received on the date of delivery or
on the third business day after the mailing thereof.
16. BINDING EFFECT; BENEFITS. This Plan shall be binding upon and
inure to the benefit of the parties to this Plan and their respective successors
and assigns. Nothing in this Plan, express or implied, is intended or shall be
construed to give any person other than the parties to this Plan or their
respective successors or assigns any legal or equitable right, remedy or claim
under or in respect of any agreement or any provision contained herein.
17. AMENDMENT. This Plan may be amended, modified or supplemented only
by a written instrument executed by Xxxxxxxx and the Company.
18. APPLICABLE LAW. This Plan shall be governed by and construed
in accordance with the law of the State of Delaware, regardless of the law that
might be applied under principles of conflict of laws.
19. SECTION AND OTHER HEADINGS. The section and other headings
contained in this Plan are for reference purposes only and shall not affect the
meaning or interpretation of this Plan.
20. COUNTERPARTS. This Plan may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Company and Grantees have executed this Plan as
of the date first above written.
XXXXXXXX COFFEE, INC.,
a Delaware corporation
BY:
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NAME:
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TITLE:
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GRANTEES
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XXXXX XXXXX
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XXXXXXXX XXXXXXX
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XXXX X. XXXXXXXX
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