1
EXHIBIT 4.5
SCHLOTZSKY'S INC.
Incentive Stock Option Agreement
[without Employee Covenants]
This Agreement ("Agreement") is entered into as of ______________,
19__, between SCHLOTZSKY'S, INC., a Texas corporation (the "Company"), and
_______________________ an employee of the Company (the "Employee").
R E C I T A L S:
The Company desires to grant to the Employee an Option to purchase
shares of its Common Stock, no par value (the "Shares") pursuant to the
Company's 1993 Stock Option Plan (the "Plan"). The Company and the Employee
understand and agree that any terms used herein have the same meanings as in
the Plan.
The parties agree as follows:
1. Grant of Option. The Company hereby irrevocably grants to the
Employee the right and option to purchase all or any part of an aggregate of
________ Shares on the terms and conditions and subject to all the limitations
set forth herein and in the Plan, which is incorporated herein by reference.
The Employee acknowledges receipt of a copy of the Plan.
The Option granted hereunder is an Incentive Stock Option, as defined
under the Plan and Section 422 of the Code.
2. Purchase Price. The purchase price of the Shares covered by
the Option shall be $ ______ per share.
3. Exercise of Option. Subject to the other terms and conditions
of this Agreement, the Option granted hereby shall vest and become exercisable
only on and after the dates set forth below as to the number of shares set
forth opposite such dates below:
Vesting Dates Number of Shares Vested
------------- -----------------------
________ 1997 _____________
________ 1998 _____________
________ 1999 _____________
________ 2000 _____________
________ 2001 _____________
2
4. Term of Option. The Option shall terminate ten years from the
date of this Agreement, but shall be subject to earlier termination as provided
herein or in the Plan.
(a) Voluntary Termination or Termination Without Cause.
If the Employee ceases to be an employee of the Company or of an
Affiliate (for any reason other than death or Disability or termination by the
Employee for cause), the Option may be exercised within three (3) months after
the date the Employee ceases to be an employee or, if earlier, the date upon
which the Option terminates, as originally prescribed by this Agreement. In
such event, the Option shall be exercisable only to the extent that the right
to purchase shares under the Plan has vested and accrued and is in effect at
the date of such cessation of employment.
(b) Termination for Cause.
In the event the Employee's employment is terminated by the Company
(or an Affiliate) for "cause" (as defined in the Plan), the Employee's right to
exercise any unexercised portion of this Option shall cease immediately, and
this Option shall thereupon terminate.
(c) Disability.
In the event of the Disability of the Employee (as determined by the
Administrator, as defined in the Plan), the Option shall be exercisable within
one year after the date of such Disability or the date upon which the Option
terminates as originally prescribed by this Agreement, whichever is earlier.
In such event, the Option shall be exercisable to the extent that the right to
purchase the Shares hereunder has accrued on the date the Employee becomes
Disabled and is in effect as of such determination date.
(d) Death.
In the event of the death of the Employee while an employee of the
Company or of an Affiliate, the Option, to the extent exercisable but not
exercised as of the date of death, may be exercised by the Employee's legal
representatives or any person who acquired the Employee's rights to the Option
by will or by the laws of descent and distribution. In such event, the Option
must be exercised, if at all, within two years after the date of death of the
Employee or, if earlier, the date upon which the Option terminates, as
originally prescribed by this Agreement.
5. Non-Assignability. The Option shall not be transferable by
the Employee otherwise than by will or by the laws of descent and distribution
and shall be exercisable, during the Employee's lifetime, only by the Employee
or his or her guardian or legal representative. The Option shall not be
assigned, pledged or hypothecated in any way (whether by operation of law of
otherwise) and shall not be subject to execution, attachment or similar
process. Any attempted transfer, assignment, pledge, hypothecation or other
disposition of the Option or of any rights
2
3
granted hereunder contrary to the provisions of this paragraph 5, or the levy
of any attachment or similar process upon the Option or such rights, shall be
null and void.
6. Exercise of Option and Issue of Shares. The Option may be
exercised in whole or in part (to the extent that it is exercisable in
accordance with its terms) by giving written notice to the Company, together
with the tender of the Option price. Such written notice shall be signed by
the person exercising the Option, shall state the number of Shares with respect
to which the Option is being exercised, shall contain any representation
required by paragraph 7 below and shall otherwise comply with the terms and
conditions of this Agreement and the Plan. The Company shall pay all transfer
or original issue taxes with respect to the issue of the Shares pursuant hereto
and all other fees and expenses necessarily incurred by the Company in
connection herewith. Except as specifically set forth herein, the holder
acknowledges that any income or other taxes due form him or her with respect to
this Option or the shares issuable pursuant to this Option shall be the
responsibility of the holder and that the Company may, in accordance with the
Internal Revenue Code, require the holder to pay additional withholding taxes
in respect of the amount that is considered compensation includable in such
holders' gross income. The holder of this Option shall have rights as a
shareholder only with respect to any Shares covered by the Option after due
exercise of the Option and tender of the full exercise price for the shares
being purchased pursuant to such exercise. Further, Employee agrees to execute
and become bound by the Shareholders Agreement attached hereto as Exhibit A
upon the first exercise of all or part of the Option.
7. Purchase for Investment. Unless the offering and sale of the
Shares to be issued upon the particular exercise of the Option shall have been
effectively registered under the Securities Act of 1933, as amended, or any
successor legislation (the "Act"), the Company shall be under no obligation to
issue the Shares covered by such exercise unless and until the following
conditions have been fulfilled.
The person(s) who exercise the Option shall represent to the Company,
at the time of such exercise, that such person(s) are acquiring such Shares for
his or her own account, for investment and not with a view to, or for sale in
connection with, the distribution of any such Shares, in which event the
person(s) acquiring such Shares shall be bound by the provisions of the
following legend which shall be endorsed upon the certificate(s) evidencing
their option Shares issued pursuant to such exercise;
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
FEDERAL SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE. WITHOUT SUCH REGISTRATION, SUCH SECURITIES MAY NOT
BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED, EXCEPT
UPON DELIVERY TO THE COMPANY OF AN OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED FOR SUCH TRANSFER
OR THE SUBMISSION TO THE COMPANY OF SUCH
3
4
OTHER EVIDENCE AS MAY BE SATISFACTORY TO THE COMPANY TO THE EFFECT
THAT ANY SUCH TRANSFER SHALL NOT BE IN VIOLATION OF THE SECURITIES
ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS OR
ANY RULE OR REGULATION PROMULGATED THEREUNDER."
Without limiting the generality of the foregoing, the Company may
delay issuance of the Shares until completion of any action or obtaining of any
consent, which the Company deems necessary under any applicable law (including
without limitation state securities or "blue sky" laws).
8. Notices. Any notices required or permitted by the terms of
this Agreement or the Plan shall be given by personal delivery or registered or
certified mail, return receipt requested, addressed as follows:
To the Company: SCHLOTZSKY'S, INC.
200 West 4th Street
Austin, Texas 78701
Attn: President
To the Employee, to the
address shown below,
or to such other address or addresses of which notice in the same manner has
previously been given. Any such notice shall be deemed to have been given when
given in accordance with these provisions.
9. Governing Law. This Agreement shall be construed and enforced
in accordance with the internal laws, and not the laws of conflict, of the
State of Texas.
10. Benefit of Agreement; Employment At Will. This Agreement
shall be for the benefit of and shall be binding upon the heirs, executors,
administrators and successors of the parties hereto. Notwithstanding anything
else contained herein or in the Plan, the Employee shall remain employed at
will, with no contractual right to be retained in employment by or as a
consultant to the Company or its subsidiaries for any period of time.
EXECUTED on ____, 199_.
SCHLOTZSKY'S, INC.
By:
-----------------------------------
John C. Wooley, President
--------------------------------------
[EMPLOYEE]
Address:
--------------------------------------
--------------------------------------
4