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EXHIBIT 10.16
1996 NONQUALIFIED STOCK OPTION PLAN OF BEVERAGE WORKS, INC.
1. PURPOSES OF THE PLAN. This nonqualified stock option plan (the
"Plan") is designed to provide an incentive to key employees of Beverage Works,
Inc., a California corporation (the "Company"), and its present and future
subsidiary corporations, as defined in Paragraph 16 ("Subsidiaries"), and to
offer an additional inducement in obtaining the services of such individuals.
The Plan does not provide for the grant of "incentive stock options," within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code").
2. STOCK SUBJECT TO THE PLAN. Options may be granted under the
Plan to purchase in the aggregate not more than Nine Hundred Thirty-Three
Thousand Five Hundred (933,500) shares of Common Stock, no par value, of the
Company ("Common Stock"), which shares may, in the discretion of the Board of
Directors, consist either in whole or in part of authorized but unissued shares
of Common Stock or shares of Common Stock held in the treasury of the Company.
The Company shall at all times during the term of the Plan reserve and keep
available such number of shares of Common Stock as will be sufficient to satisfy
the requirements of the Plan. Subject to the provision of Paragraph 12, any
shares subject to an option which for any reason expires, is cancelled or is
terminated unexercised as to such shares shall again become available for option
under the Plan.
3. ADMINISTRATION OF THE PLAN. The Plan shall be administered by
a Committee (the "Committee") consisting of not less than three members of the
Board of Directors. A majority of the members shall constitute a quorum, and the
acts of a majority of the members present at any meeting at which a quorum is
present, and any acts approved in writing by all members without a meeting,
shall be the acts of the Committee. Each member of the Committee shall be a
Non-Employee Director as defined in Rule 16b-3(b)(3) or its successors under the
Securities Exchange Act of 1934 ("1934 Act"). Subject to the express provisions
of the Plan, the Committee shall have the authority, in its sole discretion, to
determine the individuals who shall receive options; the times when they shall
receive them; the number of shares to be subject to each option; the term of
each option; the date each option shall become exercisable; whether an option
shall be exercisable in whole, in part or in installments, and if in
installments, the number of shares to be subject to each installment; the date
each installment shall become exercisable and the term of each installment; to
accelerate the date of exercise of any installment; whether shares may be issued
on exercise of an option as partly paid, and, if so, the dates when future
installments of the exercise price shall become due and the amounts of each
installments; the exercise price; the form of payment upon exercise; to require
that the individual remain employed in some capacity with the Company or its
Subsidiaries for a period of time from and after the date the option is granted
to him; the amount necessary to satisfy the Company's withholding obligation; to
restrict the sale or other disposition of the shares of Common Stock acquired
upon the exercise of an option and to waive any such restriction; to construe
the respective option agreements and the Plan; to prescribe, amend and rescind
rules and regulations relating to the Plan; to make all other determinations
necessary or advisable for administering the Plan; and, with the consent of the
optionee, to cancel or modify an option, provided such option as modified does
not violate the terms of the Plan. The determinations of the Committee on the
matters referred to in this Paragraph 3 shall be conclusive. No member of the
Committee shall be liable for anything whatsoever in
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connection with the administration of the Plan except such member's own willful
misconduct. Under no circumstances shall any member of the Committee be liable
for any act or omission of any other member of the Committee. In the performance
of its functions with respect to the Plan, the Committee shall be entitled to
rely upon information and advice furnished by the Company's officers, the
Company's accountants, the Company's counsel and any other party the Committee
deems necessary and no member of the Committee shall be liable for any action
taken or not taken in reliance upon any such advice.
4. ELIGIBILITY. The Committee may, consistent with the purposes
of the Plan, grant options from time to time, within 10 years from the date of
adoption of the Plan by the Board of Directors, to key employees of the Company
or any of its Subsidiaries, including officers, and covering such number of
shares of Common Stock as it may determine.
5. EXERCISE PRICE. The exercise price of the shares of Common
Stock under each option shall be determined by the Committee.
6. TERM OF OPTION. The term of each option granted pursuant to
the Plan shall be such term as is established by the Committee, in its sole
discretion, at the time such option is granted.
7. EXERCISE OF OPTION. An option (or any part or installment
thereof) shall be exercised by giving written notice to the Company at its
principal office specifying the number of shares as to which such option is
being exercised and accompanied by payment in full of the aggregate exercise
price therefor (or the amount due on exercise if the Stock Option Contract
permits installment payments). The Company shall have the right to deduct and
withhold from any cash otherwise payable to an optionee, or require that an
optionee make arrangements satisfactory to the Company for payment of, such
amounts as the Company shall determine for the purpose of satisfying its
liability to withhold Federal, state or local income or FICA taxes incurred by
reason of the grant or exercise of an option. Certificates representing the
shares purchased shall be issued as promptly as practicable, provided that the
Company may postpone issuing certificates for such shares for such time as the
Company, in its sole discretion, may deem necessary or desirable in order to
enable it to comply with any requirements of the Securities Act of 1933, as
amended ("Securities Act"), the 1934 Act, any Rules or Regulations of the
Securities and Exchange Commission promulgated under either of the foregoing
acts, the listing requirements of any securities exchange on which the Company's
Common Stock may now or hereafter be listed, or any applicable laws of any
jurisdiction relating to the authorization, issuance or sale of securities. The
holder of an option shall not have the rights of a stockholder with respect to
the shares covered by his option until the date of issuance of a stock
certificate to him for such shares; provided, however, that until such stock
certificate is issued, any option holder using previously acquired shares in
payment of an option exercise price shall have the rights of a shareholder with
respect to such previously acquired shares. In no case may a fraction of a share
be purchased or issued under the Plan.
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8. TERMINATION OF EMPLOYMENT. Any optionee whose employment with
the Company (and its Subsidiaries) has terminated for any reason other than
termination for cause (as defined in the Stock Option Contract), death or
permanent and total disability (as defined in Section 22(e)(3) of the Code) may
exercise his option, to the extent exercisable on the date of such termination,
at any time as specified within the Stock Option Contract but not longer than
twelve months after the date of termination, but in no event after the
expiration of the term of the option. Options granted to any employee under the
Plan shall not be affected by any changes in the status of an optionee so long
as he continues to be employed in some capacity with the Company, or any of the
Subsidiaries, or a Constituent Corporation. Nothing in the Plan or in any option
granted under the Plan shall confer on any individual any right to continue in
the employ of the Company or any of its Subsidiaries, or interfere in any way
with the right of the Company or any of its Subsidiaries to terminate the
employee's employment at any time for any reason whatsoever without liability to
the Company or any of its Subsidiaries.
9. DEATH OR DISABILITY OF AN OPTIONEE. If an optionee dies while
he is employed by the Company or any of its Subsidiaries, or within three months
after the termination of his employment, or if the optionee's employment has
terminated by reason of a permanent and total disability (as defined in Section
22(e)(3) of the Code), options granted under this Plan shall become immediately
exercisable by his executor, administrator or other person at the time entitled
by law to his rights under the option.
10. STOCK OPTION CONTRACTS. Each option shall be evidenced by an
appropriate Stock Option Contract, and may contain such terms and conditions not
inconsistent herewith as may be determined by the Committee, and which may
provide, among other things, that in the event of the exercise of such option,
unless the shares of Common Stock received upon such exercise shall have been
registered under an effective registration statement under the Securities Act,
such shares will be acquired for investment and not with a view to distribution
thereof, and that such shares may not be sold except in compliance with the
applicable provisions of the Securities Act. The Stock Option Contract may
provide for the issuance of Shares which are registered under the Securities
Act. The Plan shall not obligate the Company to issue Shares which are
registered under the Securities Act. The Stock Option Contract may provide that
if the Shares are issued upon the exercise of an option, and such Shares are not
registered under the Securities Act, that the Company may grant to the Optionee
certain rights to cause such Shares to be so registered and to require the
Optionee to deliver to the Company sufficient representations and investment
letters as may be reasonably required by the Company in order to assure that the
Company's issuance of Shares to such Optionee is either exempt from registration
under the Securities Act or does not constitute a violation of the Securities
Act which determination shall be made by counsel selected by the Company.
11. ADJUSTMENTS. The number of shares reserved for issuance
hereunder shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in
shares of Common Stock or make a distribution in shares of Common Stock, (ii)
subdivide its outstanding shares of
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Common Stock, (iii) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock or (iv) issue by reclassification of
its shares of Common Stock other securities of the Company, the number of shares
purchasable upon exercise of the options authorized under the Plan immediately
prior thereto shall be adjusted so that the kind and number of shares or other
securities of the Company authorized under this Plan that a grantee would have
owned or have been entitled to receive after the happening of any of such event
or any record date with respect thereto. An adjustment shall become effective
immediately after the effective date of such event retroactive to the record
date, if any, for such event.
(b) The Committee is authorized to provide in any
particular Stock Option Contract for adjustments to the number or kind of
securities that a grantee may receive or the exercise price of such option based
on (i) the Company's reorganization, consolidation or merger with another
corporation, (ii) dissolution or liquidation of the Company, or (iii) a change
in ownership of the outstanding voting shares of the Company. The determination
of the Committee as to what adjustments shall be made, and the extent thereof,
shall be final. Unless otherwise determined by the Committee, such adjustments
shall be subject to the same vesting schedule and restrictions to which the
underlying option is subject. No fractional shares of Company Stock shall be
reserved or authorized or made subject to any outstanding option by any such
adjustment.
12. AMENDMENTS AND TERMINATION OF THE PLAN. No options may be
granted under the Plan after the tenth anniversary of the Effective Date. The
Board of Directors, without approval of the Company's stockholders, may at any
time suspend or terminate the Plan, in whole or in part, or amend it from time
to time in such respects as it may deem advisable; provided, however, the Plan
shall not be amended more than once every six months other than to comport with
any changes under the Code thereafter enacted and conform to any change in
applicable law or to regulations or rulings of administrative agencies. No
termination, suspension or amendment of the Plan shall, without the consent of
the holder of an existing option affected thereby, adversely affect his rights
under such option.
13. NON-TRANSFERABILITY OF OPTIONS. No option granted under the
Plan shall be transferable otherwise than by will or the laws of descent and
distribution or a qualified domestic relations order as defined in the Code, and
options may be exercised, during the lifetime of the holder thereof, only by
him. Except to the extent provided in Paragraph 9, options may not be assigned,
transferred, pledged, hypothecated or disposed of in any way (whether by
operation of law or otherwise) and shall not be subject to execution, attachment
or similar process.
14. DESIGNATION OF BENEFICIARY. The optionee may designate in
writing on forms prescribed by and filed with the Committee prior to the
optionee's death a beneficiary or beneficiaries to receive all or part of the
options to be delivered to the optionee under this Plan in the event of the
death of the optionee at any time on forms prescribed by and filed with the
Committee. In the event of the optionee's death, the options to be delivered to
the optionee under this Plan with respect to which a designation of a
beneficiary has been made (to the extent
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such designation is valid and enforceable under applicable law) shall be
delivered, in accordance with the Plan, to the designated beneficiary or
beneficiaries. Any options to be delivered as to which a designation has not
been made shall be delivered to the optionee's estate. If there is any question
as to the legal right of any beneficiary to receive delivery of the options
pursuant to the Plan, the options (and shares issuable upon the exercise
thereof) may be delivered in the sole discretion of the Committee to the estate
of the optionee, in which event neither the Company nor any Subsidiary shall
have any further liability to anyone with respect to such options.
15. SUBSTITUTIONS AND ASSUMPTIONS OF OPTIONS OF CERTAIN
CONSTITUENT CORPORATIONS. Anything in this Plan to the contrary notwithstanding,
the Board of Directors may, without further approval by the stockholders,
substitute new options for prior options of a Constituent Corporation (as
defined in Paragraph 16) or assume the prior options of such Constituent
Corporation.
16. DEFINITIONS.
(a) Subsidiary. The term "Subsidiary" shall have the same
definition as "subsidiary corporation" in Section
425(f) of the Code.
(b) Parent. The term "Parent" shall have the same
definition as "parent corporation" in Section 425(e)
of the Code.
(c) Constituent Corporation. The term "Constituent
Corporation" shall mean any corporation which engages
with the Company or any Subsidiary in a transaction
to which Section 425(a) of the Code applies (or would
apply if the option assumed or substituted were an
incentive stock option), or any Parent or any
Subsidiary of such corporation.
17. EFFECTIVE DATE OF PLAN. This Plan shall be effective upon the
adoption by the Board of Directors ("Effective Date").
18. GOVERNING LAW. The Plan and all rights hereunder shall be
construed in accordance with an governed by the internal laws of the State of
California.
BEVERAGE WORKS, INC. BEVERAGE WORKS, INC.
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By: Frederik G.M. Rodenhuis, By: Lyle R. Maul,
Chief Executive Officer Secretary
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