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EXHIBIT 10.1
ATLANTIC PREMIUM BRANDS, LTD.
1999 AMENDED & RESTATED
STOCK OPTION PLAN
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TABLE OF CONTENTS
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ARTICLE I - ESTABLISHMENT ............................................... 1
1.1 Purpose .................................................. 1
ARTICLE II - DEFINITIONS ................................................ 1
2.1 "Affiliate" .............................................. 1
2.2 "Agreement" .............................................. 1
2.3 "Beneficiary" ............................................ 1
2.4 "Board" .................................................. 1
2.5 "Cause" .................................................. 2
2.6 "Change in Control" ...................................... 2
2.7 "Code" ................................................... 2
2.8 "Commission" ............................................. 2
2.9 "Committee" .............................................. 2
2.10 "Common Stock" ........................................... 2
2.11 "Company" ................................................ 2
2.12 "Disability" ............................................. 2
2.13 "Effective Date" ......................................... 3
2.14 "Exchange Act" ........................................... 3
2.15 "Fair Market Value" ...................................... 3
2.16 "Grant Date" ............................................. 3
2.17 "Incentive Stock Option" ................................. 3
2.18 "Nonqualified Stock Option" .............................. 3
2.19 "Option" ................................................. 3
2.20 "Option Period" .......................................... 3
2.21 "Option Price" ........................................... 3
2.22 "Participant" ............................................ 3
2.23 "Plan" ................................................... 4
2.24 "Representative" ......................................... 4
2.25 "Retirement" ............................................. 4
2.26 "Rule 16b-3" and "Rule 16a-1(c)(3)" ...................... 4
2.27 "Termination of Employment" .............................. 4
ARTICLE III - ADMINISTRATION ............................................ 5
3.1 Committee Structure and Authority ........................ 5
3.2 Independent Committee .................................... 7
ARTICLE IV - STOCK SUBJECT TO PLAN ...................................... 7
4.1 Number of Shares ......................................... 7
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4.2 Release of Shares............................................ 7
4.3 Restrictions on Shares....................................... 8
4.4 Stockholder Rights........................................... 8
4.5 Registration................................................. 8
4.6 Anti-Dilution................................................ 9
ARTICLE V - ELIGIBILITY..................................................... 9
5.1 Eligibility.................................................. 9
ARTICLE VI - STOCK OPTIONS.................................................. 10
6.1 General...................................................... 10
6.2 Grant and Exercise........................................... 10
6.3 Terms and Conditions......................................... 10
6.4 Termination by Reason of Death............................... 12
6.5 Termination by Reason of Disability.......................... 12
6.6 Other Termination............................................ 13
6.7 Cashing Out of Option........................................ 13
6.8 Formula Grants............................................... 13
ARTICLE VII - PROVISIONS APPLICABLE TO STOCK ACQUIRED UNDER THIS PLAN....... 14
7.1 Limited Transfer During Offering............................. 14
7.2 No Company Obligation........................................ 14
ARTICLE VIII - CHANGE IN CONTROL PROVISIONS................................. 14
8.1.................................................................... 14
8.2 Definition of Change in Control.............................. 16
ARTICLE IX - MISCELLANEOUS.................................................. 17
9.1 Amendments and Termination................................... 17
9.2 Unfunded Status of Plan...................................... 18
9.3 Status of Options Under Section 162(m) of the Code........... 18
9.4 General Provisions........................................... 18
9.5 Mitigation of Excise Tax..................................... 20
9.6 Rights with Respect to Continuance of Employment............. 20
9.7 Options in Substitution for Options Granted by
Other Corporations......................................... 21
9.8 Procedure for Adoption....................................... 21
9.9 Procedure for Withdrawal..................................... 21
9.10 Delay........................................................ 21
9.11 Headings..................................................... 21
9.12 Severability................................................. 22
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9.13 Successors and Assigns...................................... 22
9.14 Entire Agreement............................................ 22
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ATLANTIC PREMIUM BRANDS, LTD.
1999 AMENDED & RESTATED STOCK OPTION PLAN
ARTICLE I
ESTABLISHMENT
1.1 Purpose. The Atlantic Premium Brands, Ltd. 1999 Amended & Restated
Stock Option Plan ("Plan") is hereby established by Atlantic Premium Brands,
Ltd. ("Company"). The purpose of this Plan is to promote the overall financial
objectives of the Company and its stockholders by motivating those persons
selected to participate in this Plan to achieve long-term growth in stockholder
equity in the Company and by retaining the association of those individuals who
are instrumental in achieving this growth. The Plan and the grant of awards
hereunder are expressly conditioned upon the Plan's approval by the stockholders
of the Company.
ARTICLE II
DEFINITIONS
For purposes of this Plan, the following terms are defined as set forth
below:
2.1 "Affiliate" means any individual, corporation, partnership,
association, limited liability company, joint-stock company, trust,
unincorporated association or other entity (other than the Company) that
directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, the Company including, without
limitation, any member of an affiliated group of which the Company is a common
parent corporation as provided in Section 1504 of the Code.
2.2 "Agreement" means any agreement entered into pursuant to this Plan
pursuant to which an Option is granted to a Participant.
2.3 "Beneficiary" means the person, persons, trust or trusts which have
been designated by a Participant in his or her most recent written beneficiary
designation filed with the Committee to receive the benefit specified under the
Plan to the extent permitted. If there is no designated beneficiary, then the
term means the person or persons, trust or trusts entitled by will or the laws
of descent and distribution to receive such benefits.
2.4 "Board" means the Board of Directors of the Company.
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2.5 "Cause" shall mean, for purposes of whether and when a Participant has
incurred a Termination of Employment for Cause, any act or omission which
permits the Company to terminate a written agreement or arrangement (employment
or otherwise) between the Participant and the Company or an Affiliate for Cause
as defined in such agreement or arrangement, or in the event there is no such
agreement or arrangement or the agreement or arrangement does not define the
term "cause," then Cause shall mean (a) any act or failure to act deemed to
constitute cause under the Company's established practices, policies or
guidelines applicable to the Participant or (b) the Participant's act or
omission constituting gross misconduct with respect to the Company or an
Affiliate in any material respect.
2.6 "Change in Control" has the meaning set forth in Section 8.2.
2.7 "Code" means the Internal Revenue Code of 1986, as amended, final
Treasury Regulations thereunder and any subsequent Internal Revenue Code.
2.8 "Commission" means the Securities and Exchange Commission or any
successor agency.
2.9 "Committee" means the person or persons appointed by the Board to
administer this Plan.
2.10 "Common Stock" means the shares of the Company's Common Stock, $.01
par value per share, whether presently or hereafter issued, and any other stock
or security resulting from adjustment thereof as described hereinafter or the
common stock of any successor to the Company which is so designated for the
purpose of this Plan.
2.11 "Company" means Atlantic Premium Brands, Ltd. and includes any
successor or assignee corporation or corporations into which the Company may be
merged, changed or consolidated; any corporation for whose securities all or
substantially all of the securities of the Company shall be exchanged; and any
assignee of or successor to substantially all of the assets of the Company.
2.12 "Disability" means a mental or physical illness that entitles the
Participant to receive benefits under the long term disability plan of the
Company or an Affiliate, or if the Participant is not covered by such a plan or
the Participant is not an employee of the Company or an Affiliate, a mental or
physical illness that renders a Participant totally and permanently incapable of
performing the Participant's duties for the Company or an Affiliate.
Notwithstanding the foregoing, a Disability shall not qualify under this Plan if
it is the result of (i) a willfully self-inflicted injury or willfully
self-induced sickness, or (ii) an injury or disease contracted, suffered, or
incurred, while participating in a criminal offense. Notwithstanding the
foregoing, if the Participant and the Company or an Affiliate have entered into
an employment agreement which defines the term "Disability" (or a similar term),
such definition shall govern for purposes of determining whether such
Participant suffers a Disability for purposes of this Plan. The
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determination of Disability shall be made by the Committee. The determination of
Disability for purposes of this Plan shall not be construed to be an admission
of disability for any other purpose.
2.13 "Effective Date" means May 19, 1999 or such later date on which
the 1999 Annual Meeting of Stockholders is held.
2.14 "Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
2.15 "Fair Market Value" means the fair market value of Common Stock (or
other property) as determined by the Committee or under procedures established
by the Committee. Unless otherwise determined by the Committee, the Fair Market
Value per share of Common Stock as of any date shall be the closing sale price
per share reported on a consolidated basis for stock listed on the principal
stock exchange or market on which the Common Stock is traded on the date as of
which such value is being determined or, if there is no sale on that date, then
on the last previous day on which a sale was reported.
2.16 "Grant Date" means the date as of which an Option is granted pursuant
to this Plan.
2.17 "Incentive Stock Option" means any Option intended to be and
designated as an "incentive stock option" within the meaning of Section 422 of
the Code.
2.18 "Nonqualified Stock Option" means an Option to purchase Common Stock
granted under this Plan, the taxation of which is determined pursuant to Section
83 of the Code.
2.19 "Option" means a right to purchase Common Stock on specified
conditions granted under Article VI.
2.20 "Option Period" means the period during which the Option shall be
exercisable in accordance with the Agreement and Article VI.
2.21 "Option Price" means the price at which the Common Stock may be
purchased under an Option as provided in Section 6.3(b).
2.22 "Participant" means a person who satisfies the eligibility conditions
of Article V and to whom an Option has been granted by the Committee under this
Plan, and in the event a Representative is appointed for a Participant or
another person becomes a Representative, then the term "Participant" shall mean
such Representative. The term shall also include a trust for the benefit of the
Participant, a partnership the interest of which is by or for the benefit of the
Participant, the Participant's parents, spouse or descendants, or a custodian
under a uniform gifts to minors act or similar statute for the benefit of the
Participant's descendants, to the extent permitted by the Committee and not
inconsistent with the Rule 16b-3 or the status of the Option as an Incentive
Stock Option to the extent intended. Notwithstanding the foregoing, the term
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"Termination of Employment" shall mean the Termination of Employment of the
employee to whom the Option was originally granted (and other terms intended to
refer solely to such employee shall be interpreted in a manner that is
consistent with such intent).
2.23 "Plan" means this Atlantic Premium Brands, Ltd. 1999 Amended and
Restated Stock Option Plan, as the same may be amended from time to time.
2.24 "Representative" means (a) the person or entity acting as the executor
or administrator of a Participant's estate pursuant to the last will and
testament of a Participant or pursuant to the laws of the jurisdiction in which
the Participant had the Participant's primary residence at the date of the
Participant's death; (b) the person or entity acting as the guardian or
temporary guardian of a Participant; (c) the person or entity which is the
Beneficiary of the Participant upon or following the Participant's death; or
(d) any person to whom an Option has been transferred with the permission of the
Committee or by operation of law; provided that only one of the foregoing shall
be the Representative at any point in time as determined under applicable law
and recognized by the Committee.
2.25 "Retirement" means the Participant's Termination of Employment after
attaining either the normal retirement age or the early retirement age as
defined in the principal (as determined by the Committee) tax-qualified plan of
the Company or an Affiliate, if the Participant is covered by such plan, and if
the Participant is not covered by such a plan, then age 65, or age 55 with the
accrual of 10 years of service.
2.26 "Rule 16b-3" and "Rule 16a-1(c)(3)" means Rule 16b-3 and Rule
16a-1(c)(3), as from time to time in effect and applicable to the Plan and
Participants, promulgated by the Securities and Exchange Commission under
Section 16 of the Exchange Act.
2.27 "Termination of Employment" means the occurrence of any act or event
whether pursuant to an employment agreement or otherwise that actually or
effectively causes or results in the person's ceasing, for whatever reason, to
be an officer, consultant, advisor, independent contractor, director or employee
of the Company or of any Affiliate, or to be an officer, consultant, advisor,
independent contractor, director or employee of any entity that provides
services to the Company or an Affiliate, including, without limitation, death,
Disability, dismissal, severance at the election of the Participant, Retirement,
or severance as a result of the discontinuance, liquidation, sale or transfer by
the Company or its Affiliates of all businesses owned or operated by the Company
or its Affiliates. With respect to any person who is not an employee of the
Company or an Affiliate, the Agreement may establish what act or event shall
constitute a Termination of Employment for purposes of this Plan. A transfer of
employment from the Company to an Affiliate, or from an Affiliate to the
Company, shall not be a Termination of Employment, unless expressly determined
by the Committee. A Termination of Employment shall occur with respect to an
employee who is employed by an Affiliate if the Affiliate shall cease to be an
Affiliate and the Participant shall not immediately thereafter become an
employee of the Company or an Affiliate.
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In addition, certain other terms used herein have definitions given to
them in the first place in which they are used.
ARTICLE III
ADMINISTRATION
3.1 Committee Structure and Authority. This Plan shall be administered by
the Committee which shall be comprised of two or more persons designated by the
Board. In the absence of a designation, the Board or the portion that qualifies
as the Committee shall be the Committee. A majority of the Committee shall
constitute a quorum at any meeting thereof (including telephone conference) and
the acts of a majority of the members present, or acts approved in writing by a
majority of the entire Committee without a meeting, shall be the acts of the
Committee for purposes of this Plan. The Committee may authorize any one or
more of its members or an officer of the Company to execute and deliver
documents on behalf of the Committee. At any time the Company is publicly held,
this Plan is intended to qualify for exemption from Section 16(b) of the
Exchange Act and to qualify as performance-based compensation under Section
162(m) of the Code and shall be interpreted in such a way as to result in such
qualification. A member of the Committee shall not exercise any discretion
respecting himself or herself under this Plan. The Board shall have the
authority to remove, replace or fill any vacancy of any member of the Committee
upon notice to the Committee and the affected member. Any member of the
Committee may resign upon notice to the Board. The Board may select different
Committees to administer Options for different classes of Participants. The
Committee may allocate among one or more of its members, or may delegate to one
or more of its agents, such duties and responsibilities as it determines.
Among other things, the Committee shall have the authority, (i) subject to
the terms of this Plan, and (ii) subject to the approval of the Board (to the
extent required to qualify an option granted hereunder for exemption under
Section 16(b) of the Exchange Act and as "performance-based compensation" under
Section 162(m) of the Code):
(a) to select those persons to whom Options may be granted from time
to time;
(b) to determine whether and to what extent Options are to be granted
hereunder;
(c) to determine the number of shares of Common Stock to be covered by
each Option granted hereunder;
(d) to determine the terms and conditions of any Option granted
hereunder (including, but not limited to, the Option Price, the Option Period,
any exercise restriction
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or limitation, any exercise acceleration or forfeiture waiver or any performance
criteria regarding any Option and the shares of Common Stock relating thereto);
(e) to adjust the terms and conditions, at any time or from time to
time, of any Option, subject to the limitations of Section 9.1;
(f) to determine to what extent and under what circumstances Common
Stock and other amounts payable with respect to an Option shall be deferred;
(g) to determine under what circumstances an Option may be settled in
cash or Common Stock;
(h) to provide for the forms of Agreement to be utilized in connection
with this Plan;
(i) to determine whether a Participant has a Disability or a
Retirement;
(j) to determine what securities law requirements are applicable to
this Plan, Options, and the issuance of shares of Common Stock and to require of
a Participant that appropriate action be taken with respect to such
requirements;
(k) to cancel, with the consent of the Participant or as otherwise
provided in this Plan or an Agreement, outstanding Options;
(l) to interpret and make a final determination with respect to the
remaining number of shares of Common Stock available under this Plan;
(m) to require as a condition of the exercise of an Option or the
issuance or transfer of a certificate of Common Stock, the withholding from a
Participant of the amount of any federal, state or local taxes as may be
necessary in order for the Company or any other employer to obtain a deduction
or as may be otherwise required by law;
(n) to determine whether and with what effect an individual has
incurred a Termination of Employment;
(o) to determine whether the Company or any other person has a right
or obligation to purchase Common Stock from a Participant and, if so, the terms
and conditions on which such Common Stock is to be purchased;
(p) to determine the restrictions or limitations on the transfer of
Common Stock;
(q) to determine whether an Option is to be adjusted, modified or
purchased, or is to become fully exercisable, under this Plan or the terms of an
Agreement;
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(r) to determine the permissible methods of Option exercise and
payment, including cashless exercise arrangements;
(s) to adopt, amend and rescind such rules and regulations as, in its
opinion, may be advisable in the administration of this Plan; and
(t) to appoint and compensate agents, counsel, auditors or other
specialists to aid it in the discharge of its duties.
The Committee shall have the authority to adopt, alter and repeal such
administrative rules, guidelines and practices governing this Plan as it shall,
from time to time, deem advisable, to interpret the terms and provisions of this
Plan and any Option issued under this Plan (and any Agreement) and to otherwise
supervise the administration of this Plan. The Committee's policies and
procedures may differ with respect to Options granted at different times or to
different Participants.
Any determination made by the Committee pursuant to the provisions of this
Plan shall be made in its sole discretion, and in the case of any determination
relating to an Option, may be made at the time of the grant of the Option or,
unless in contravention of any express term of this Plan or an Agreement, at any
time thereafter. All decisions made by the Committee pursuant to the provisions
of this Plan shall be final and binding on all persons, including the Company
and Participants. No determination shall be subject to de novo review if
challenged in court.
3.2 Independent Committee. The Board may appoint a Committee that consists
of directors who are disinterested "Non-Employee Directors" the meaning of Rule
16b-3 and each of whom is an "outside" director under Section 162(m) of the Code
to administer the Plan with respect to individuals subject to (or potentially
subject to) such provisions.
ARTICLE IV
STOCK SUBJECT TO PLAN
4.1 Number of Shares. Subject to the adjustment under Section 4.6, the
total number of shares of Common Stock initially reserved and available for
distribution pursuant to Options under this Plan shall be 3,000,000 shares of
Common Stock, inclusive of all shares associated with options issued to
officers, directors, employees and other recipients prior to the adoption of
this Plan. Such shares may consist, in whole or in part, of authorized and
unissued shares or treasury shares.
4.2 Release of Shares. The Committee shall have full authority to
determine the number of shares of Common Stock available for Option, and in its
discretion may include (without limitation) as available for distribution any
shares of Common Stock that have ceased to
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be subject to an Option, any shares of Common Stock subject to any Option that
are forfeited, any Option that otherwise terminates without issuance of shares
of Common Stock being made to the Participant, or any shares (whether or not
restricted) of Common Stock that are received by the Company in connection with
the exercise of an Option including the satisfaction of any tax liability or the
satisfaction of a tax withholding obligation. If any shares could not again be
available for Options to a particular Participant under any applicable law, such
shares shall be available exclusively for Options to Participants who are not
subject to such limitations.
4.3 Restrictions on Shares. Shares of Common Stock issued upon exercise of
an Option shall be subject to the terms and conditions specified herein and to
such other terms, conditions and restrictions as the Committee in its discretion
may determine or provide in the Option Agreement. The Company shall not be
required to issue or deliver any certificates for shares of Common Stock, cash
or other property prior to (i) the listing of such shares on any stock exchange
(or other public market) on which the Common Stock may then be listed (or
regularly traded), (ii) the completion of any registration or qualification of
such shares under federal or state law, or any ruling or regulation of any
government body which the Committee determines to be necessary or advisable, and
(iii) the satisfaction of any applicable withholding obligation in order for the
Company or an Affiliate to obtain a deduction with respect to the exercise of an
Option. The Company may cause any certificate for any share of Common Stock to
be delivered to be properly marked with a legend or other notation reflecting
the limitations on transfer of such Common Stock as provided in this Plan or as
the Committee may otherwise require. The Committee may require any person
exercising an Option to make such representations and furnish such information
as it may consider appropriate in connection with the issuance or delivery of
the shares of Common Stock in compliance with applicable law or otherwise.
Fractional shares shall not be delivered, but shall be rounded to the next lower
whole number of shares, with appropriate payment made with respect to such
fractional shares.
4.4 Stockholder Rights. No person shall have any rights of a stockholder
as to shares of Common Stock subject to an Option until, after proper exercise
of the Option or other action required, such shares shall have been recorded on
the Company's official stockholder records as having been issued and
transferred. Upon exercise of the Option or any portion thereof, the Company
will have a reasonable time in which to issue the shares, and the Participant
will not be treated as a stockholder for any purpose whatsoever prior to such
issuance. No adjustment shall be made for cash dividends or other rights for
which the record date is prior to the date such shares are recorded as issued
and transferred in the Company's official stockholder records, except as
provided herein or in an Agreement.
4.5 Registration. During any period in which the Company's Common Stock is
registered under Section 12 of the Exchange Act, the Company will register under
the Securities Act the Common Stock delivered or deliverable pursuant to Options
on Commission Form S-8 if available to the Company for this purpose (or any
successor or alternate form that is substantially similar to that form to the
extent available to effect such registration), in accordance with the rules and
regulations governing such forms, as soon after stockholder approval of the Plan
as the
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Committee, in its sole discretion, shall deem such registration appropriate.
The Company will use its reasonable best efforts to cause the registration
statement to become effective and will file such supplements and amendments to
the registration statement as may be necessary to keep the registration
statement in effect until the earliest of (a) one year following the expiration
of the last relevant period of the last Option outstanding, (b) the date the
Company is no longer a reporting company under the Exchange Act and (c) the date
all Participants have disposed of all shares of Common Stock delivered pursuant
to any Option. The Company may delay the foregoing obligation if the Committee
reasonably determines that any such registration would materially and adversely
affect the Company's interests or if there is no material benefit to
Participants.
4.6 Anti-Dilution. In the event of any Company stock dividend, stock
split, combination or exchange of shares, recapitalization or other change in
the capital structure of the Company, corporate separation or division of the
Company (including, but not limited to, a split-up, spin-off, split-off or
distribution to Company stockholders other than a normal cash dividend), sale by
the Company of all or a substantial portion of its assets (measured on either a
stand-alone or consolidated basis), reorganization, rights offering, a partial
or complete liquidation, or any other corporate transaction, Company share
offering or event involving the Company and having an effect similar to any of
the foregoing, then the Committee shall adjust or substitute, as the case may
be, the number of shares of Common Stock available for Options under this Plan,
the number of shares of Common Stock covered by outstanding Options, the
exercise price per share of outstanding Options, and any other characteristics
or terms of the Options as the Committee shall deem necessary or appropriate to
reflect equitably the effects of such changes to the Participants; provided,
however, that the Committee may limit any such adjustment so as to maintain the
deductibility of the Options under Section 162(m) of the Code, and that any
fractional shares resulting from such adjustment shall be eliminated by rounding
to the next lower whole number of shares with appropriate payment for such
fractional share as shall reasonably be determined by the Committee.
ARTICLE V
ELIGIBILITY
5.1 Eligibility. Except as herein provided, the persons who shall be
eligible to participate in this Plan and be granted Options shall be those
persons who are officers, directors, employees, advisors, independent
contractors or consultants of the Company or any subsidiary, who shall be in a
position, in the opinion of the Committee, to make contributions to the growth,
management, protection and success of the Company and its subsidiaries. Of
those persons described in the preceding sentence, the Committee may, from time
to time, select persons to be granted Options and shall determine the terms and
conditions with respect thereto. In making any such selection and in
determining the form of the Option, the Committee may give consideration to the
functions and responsibilities of the person, the person's contributions to the
Company and
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its subsidiaries, the value of the individual's service to the Company and its
subsidiaries and such other factors deemed relevant by the Committee.
ARTICLE VI
STOCK OPTIONS
6.1 General. The Committee shall have authority to grant Options under
this Plan at any time or from time to time. Options may be either Incentive
Stock Options or Non-Qualified Stock Options. An Option shall entitle the
Participant to receive shares of Common Stock upon exercise of such Option,
subject to the Participant's satisfaction in full of any conditions,
restrictions or limitations imposed in accordance with this Plan or an Agreement
(the terms and provisions of which may differ from other Agreements) including
without limitation, payment of the Option Price. During any calendar year,
Options to purchase no more than 500,000 shares of Common Stock shall be granted
to any Participant.
6.2 Grant and Exercise. The grant of an Option shall occur as of the date
the Committee determines. Each Option granted under this Plan shall be
evidenced by an Agreement, in a form approved by the Committee, which shall
embody the terms and conditions of such Option and which shall be subject to
the express terms and conditions set forth in this Plan. Such Agreement shall
become effective upon execution by the Participant. Only a person who is a
common-law employee of the Company, any parent corporation of the Company or a
subsidiary corporation of the Company (as such terms are defined in Section 424
of the Code) on the Grant date shall be eligible to be granted an Option which
is intended to be and is an Incentive Stock Option. To the extent that any
Option is not designated as an Incentive Stock Option or even if so designated
does not qualify as an Incentive Stock Option, it shall constitute a
Non-Qualified Stock Option.
6.3 Terms and Conditions. Options shall vest in accordance with the terms
specified in the Agreement covering such Options, and shall be subject to such
terms and conditions as shall be determined by the Committee, including the
following:
(a) Option Period. The Option Period of each Option shall be fixed
by the Committee; provided that no Non-Qualified Stock Option shall be
exercisable more than ten (10) years after the date the Option is granted. In
the case of an Incentive Stock Option, the Option Period shall not exceed ten
(10) years from the date of grant or five (5) years in the case of an individual
who owns more than ten percent (10%) of the combined voting power of all classes
of stock of the Company, a corporation which is a parent corporation of the
Company or any subsidiary corporation of the Company (each as defined in Section
424 of the Code). No Option which is intended to be an Incentive Stock Option
shall be granted more than ten (10) years from the date this Plan is adopted by
the
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Company or the date this Plan is approved by the stockholders of the
Company, whichever is earlier.
(b) Option Price. The Option Price per share of the Common Stock
purchasable under an Option shall be not less than the Fair Market Value per
share on the date the Option is granted. If such Option is intended to qualify
as an Incentive Stock Option, where such Option is granted to an individual who
owns or who is deemed to own stock possessing more than ten percent (10%) of the
combined voting power of all classes of stock of the Company, a corporation
which is a parent corporation of the Company or any subsidiary corporation of
the Company (each as defined in Section 424 of the Code), the Option Price per
share shall be not less than one hundred ten percent (110%) of such Fair Market
Value per share.
(c) Exercisability. Subject to Section 8.1, Options shall be
exercisable at such time or times and subject to such terms and conditions as
shall be determined by the Committee. Unless provided in an Agreement or by the
Committee, no Option may be exercised to the extent it is not vested. If the
Committee provides that any Option is exercisable only in installments, the
Committee may at any time waive such installment exercise provisions, in whole
or in part. In addition, the Committee may at any time accelerate the
exercisability of any Option. If the Committee intends that an Option be an
Incentive Stock Option, the Committee shall, in its discretion, provide that the
aggregate Fair Market Value (determined at the Grant Date) of the Incentive
Stock Option which is exercisable for the first time during the calendar year
shall not exceed $100,000.
(d) Method of Exercise. Subject to the provisions of this Article VI,
a Participant may exercise Options, in whole or in part, at any time during the
Option Period by giving written notice of exercise on a form provided by the
Committee to the Company specifying the number of shares of Common Stock subject
to the Option to be purchased. Such notice shall be accompanied by payment in
full of the purchase price by cash or check or such other form of payment as the
Company may accept. If approved by the Committee (including approval at the time
of exercise), payment in full or in part may also be made (i) by delivering
Common Stock already owned by the Participant having a total Fair Market Value
on the date of such delivery equal to the Option Price; (ii) by the execution
and delivery of a note or other evidence of indebtedness (and any security
agreement thereunder) satisfactory to the Committee and permitted in accordance
with Section 6.3(e); (iii) by authorizing the Company to retain shares of
Common Stock which would otherwise be issuable upon exercise of the Option
having a total Fair Market Value on the date of delivery equal to the Option
Price; (iv) by the delivery of cash or the extension of credit by a
broker-dealer to whom the Participant has submitted a notice of exercise or
otherwise indicated an intent to exercise an Option (in accordance with
Part 220, Chapter II, Title 12 of the Code of Federal Regulations); (v) by
certifying ownership of shares of Common Stock owned by the Participant to the
satisfaction of the Committee for later delivery to the Company as specified by
the Company; or (vi) by any combination of the
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foregoing. In the case of an Incentive Stock Option, the right to make a
payment in the form of already owned shares of Common Stock of the same class
as the Common Stock subject to the Option may be authorized only at the time
the Option is granted. No shares of Common Stock shall be issued until full
payment therefor, as determined by the Committee, has been made.
(e) Company Loan or Guarantee. Upon the exercise of any Option and
subject to the pertinent Agreement and the discretion of the Committee, the
Company may at the request of the Participant:
(i) lend to the Participant, an amount equal to such portion of
the Option Price as the Committee may determine; or
(ii) guarantee a loan obtained by the Participant from a
third-party for the purpose of tendering the Option Price.
The terms and conditions of any loan or guarantee, including the term,
interest rate, whether the loan is with recourse against the Participant and any
security interest thereunder, shall be determined by the Committee, except that
no extension of credit or guarantee shall obligate the Company for an amount to
exceed the lesser of (i) the aggregate Fair Market Value per share of the Common
Stock on the date of exercise, less the par value of the shares of Common Stock
to be purchased upon the exercise of the Option, and (ii) the amount permitted
under applicable laws or the regulations and rules of the Federal Reserve Board
and any other governmental agency having jurisdiction.
(f) Non-transferability of Options. Except as provided herein or in
an Agreement and then only consistent with the intent that the Option be an
Incentive Stock Option (as applicable), (i) no Option or interest therein may be
transferred, assigned, alienated or encumbered in any way by the Participant
other than by will or by the laws of descent and distribution or by a
designation of beneficiary effective upon the death of the Participant,
(ii) no Option shall be subject to the claims of a Participant's creditors, and
(iii) all Options shall be exercisable during the Participant's lifetime only
by the Participant.
6.4 Termination by Reason of Death. Unless otherwise provided in an
Agreement or determined by the Committee, if a Participant incurs a Termination
of Employment due to death, any unexpired and unexercised Option held by such
Participant shall, to the extent then vested and exercisable, thereafter be
fully exercisable for a period of ninety (90) days (or such other period or no
period as the Committee may specify) immediately following the date of such
death or until the expiration of the Option Period, whichever period is the
shorter.
6.5 Termination by Reason of Disability. Unless otherwise provided in an
Agreement or determined by the Committee (and subject to Section 6.8 with
respect to formula grants to non-
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employee Directors) if a Participant incurs a Termination of Employment due
to a Disability, any unexpired and unexercised Option held by such Participant
shall, to the extent then vested and exercisable, thereafter be fully
exercisable by the Participant for the period of one year (or such other period
or no period as the Committee may specify) immediately following the date of
such Termination of Employment or until the expiration of the Option Period,
whichever period is shorter, and the Participant's death at any time following
such Termination of Employment due to Disability shall not affect the foregoing.
In the event of Termination of Employment by reason of Disability, if an
Incentive Stock Option is exercised after the expiration of the exercise periods
that apply for purposes of Section 422 of the Code, such Option will thereafter
be treated as a Non-Qualified Stock Option.
6.6 Other Termination. Unless otherwise provided in an Agreement or
determined by the Committee (and subject to Section 6.8 with respect to formula
grants to non-employee Directors) if a Participant incurs a Termination of
Employment due to Retirement, or the Termination of Employment is involuntary on
the part of the Participant (but is not due to death, Disability or with Cause),
any Option held by such Participant shall thereupon terminate, except that such
Option, to the extent then vested and exercisable, may be exercised for the
lesser of the ninety (90) day period commencing with the date of such
Termination of Employment or until the expiration of the Option Period. Unless
otherwise provided in an Agreement or determined by the Committee, if the
Participant incurs a Termination of Employment which is either (a) voluntary on
the part of the Participant (and is not due to Retirement) or (b) with Cause,
the Option shall terminate immediately. Unless otherwise provided in an
Agreement or determined by the Committee, the death or Disability of a
Participant after a Termination of Employment otherwise provided herein
shall not extend the exercisability of the time permitted to exercise an
Option.
6.7 Cashing out of Option. On receipt of written notice of exercise, the
Committee may elect to cash out all or part of the portion of any Option by
paying the Participant an amount, in cash or Common Stock, equal to the excess
of the Fair Market Value of the Common Stock that is subject to the Option over
the Option Price times the number of shares of Common Stock subject to the
Option on the effective date of such cash out.
6.8 Formula Grants. Beginning on January 1, 2000 and on each January 1,
thereafter, each person who is a non-employee Director on the Effective Date
shall become a Participant and shall be granted an Option to purchase ten
thousand (10,000) shares of Common Stock without further action by the Board or
the Committee, provided that such person continues to be a non- employee
Director on such January 1. Each non-employee who is not a Director on the
Effective Date and thereafter is elected or appointed as a Director shall become
a Participant and shall, and on each January 1, thereafter, without further
action by the Board or the Committee, be granted an Option to purchase ten
thousand (10,000) shares of Common Stock, on the first January 1 following such
Director's election or appointment, provided that such person continued to be a
non-employee Director on such January 1. In each case, a Director's options
granted pursuant to this provision shall vest quarterly in equal increments from
the effective grant date, vesting on the
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earlier of the date of the quarterly Board of Directors meeting or the last day
of the quarter. If the number of shares of Common Stock available to grant
under the Plan on a scheduled date of grant is insufficient to make all
automatic grants required to be made pursuant to the Plan on such date, then
each eligible Director shall receive an Option to purchase a pro rata number of
the remaining shares of Common Stock available under the Plan; provided further,
however, that if such proration results in fractional shares of Common Stock,
then such Option shall be rounded down to the nearest number of whole shares of
Common Stock. If there is no whole number of shares remaining to be granted,
then no grants shall be made under the Plan. Each Option granted under the Plan
shall be evidenced by an Agreement, in a form approved by the Committee, which
shall embody the terms and conditions of such Option and which shall be subject
to the express terms and conditions set forth in the Plan. Such Agreement shall
become effective upon execution by the Participant. Any Option granted pursuant
to this Section 6.8 shall terminate upon the first anniversary of the date the
Participant first ceased to hold the position of Director.
ARTICLE VII
PROVISIONS APPLICABLE TO STOCK ACQUIRED UNDER THIS PLAN
7.1 Limited Transfer During Offering. In the event there is an effective
registration statement under the Securities Act pursuant to which shares of
Common Stock shall be offered for sale in an underwritten offering, a
Participant shall not, during the period requested by the underwriters managing
the registered public offering, effect any public sale or distribution of
shares received directly or indirectly pursuant to an exercise of an Option.
7.2 No Company Obligation. None of the Company, an Affiliate or the
Committee shall have any duty or obligation to affirmatively disclose to a
record or beneficial holder of Common Stock or an Option, and such holder shall
have no right to be advised of any material information regarding the Company
or any Affiliate at any time prior to, upon or in connection with receipt or
the exercise of an Option or the Company's purchase of Common Stock or an
Option from such holder in accordance with the terms hereof.
ARTICLE VIII
CHANGE IN CONTROL PROVISIONS
8.1 (a) Reorganization in which the Company is the Surviving Corporation.
Subject to subsection (b) hereof, if the Company shall be the surviving
corporation in any reorganization, merger, or consolidation of the Company
with one or more other corporations, any Option theretofore granted
pursuant to the Plan shall pertain to and apply to the securities to which
a holder of the number of shares of stock subject to such Option would
have been entitled immediately following such reorganization, merger,
or consolidation, with a corresponding proportionate adjustment of the
Option Price per share
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so that the aggregate Option Price (relating to all shares under such Option)
thereafter shall be the same as the aggregate Option Price of the shares
remaining subject to the Option immediately prior to such reorganization, merger
or consolidation.
(b) Reorganization in which the Company is not the Surviving
Corporation or Sale of Assets or Stock. Upon the dissolution or liquidation of
the Company, or upon a merger, consolidation, reorganization or other business
combination of the Company with one or more other entities in which the Company
is not the surviving entity, or upon a sale of all or substantially all of the
assets of the Company to another entity, or upon any transaction (including,
without limitation, a merger or reorganization in which the Company is the
surviving corporation) approved by the Board which results in any person or
entity (or persons or entities acting as a group or otherwise in concert) owning
80 percent or more of the combined voting power of all classes of stock of the
Company, all Options outstanding hereunder shall terminate, except to the extent
provision is made in writing in connection with such transaction for the
continuation of the Plan and/or the writing in connection with such transaction
for the continuation of the Plan and/or the assumption of the Options
theretofore granted, or for the substitution for such Options of new options
covering the stock of a successor entity, or parent or subsidiary thereof, with
appropriate adjustments as to the number and kinds of shares and exercise
prices, in which event the Plan and Options theretofore granted shall continue
in the manner and under the terms so provided. In the event of any such
termination, each individual holding an Option shall have the right (subject to
the general limitations on exercise set forth in Section 6.3 and except as
otherwise specifically provided in the Option Agreement relating to such
Option), immediately prior to the occurrence of such termination and during such
period occurring prior to such termination as the Board in its sole discretion
shall determine and designate, to exercise such Option in whole or in part,
whether or not such Option was otherwise exercisable at the time such
termination occurs. The Board shall send written notice of an event that will
result in such a termination to all individuals who hold Options not later than
the time at which the Company gives notice thereof to its shareholders.
(c) Discretionary Modifications. Notwithstanding provisions of any
other Article of this Plan to the contrary, in the event of a Change in Control
(as defined in Section 8.2), the Committee shall, in addition to other
provisions of this Article VIII, have full discretion, notwithstanding anything
herein or in an Agreement to the contrary (except as provided below), to do any
or all of the following with respect to an outstanding Option:
(i) to provide that the Options outstanding as of the date of
the Change in Control which are not then exercisable shall become
fully exercisable to the full extent of the original grant;
(ii) to provide that the restrictions and deferral limitations
applicable to the Options shall lapse, and such Options shall become
free of all restrictions and become fully vested and transferrable to
the full extent of the original grant;
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(iii) to cause any Option to be cancelled, provided notice of at
least 15 days thereof is provided before the date of cancellation;
(iv) to provide that the securities of another entity be
substituted hereunder for the Common Stock and to make equitable
adjustment with respect thereto; and
(v) to take any other action the Committee determines to take.
8.2 Definition of Change in Control. For purposes of this Plan, a "Change
in Control" shall mean the happening of any of the following events:
(a) Any corporation, person or other entity (other than the Company, a
majority-owned subsidiary of the Company or any of its subsidiaries, or an
employee benefit plan (or related trust) sponsored or maintained by the
Company), including a "group" as defined in Section 13(d)(3) of the Exchange
Act, becomes the beneficial owner of stock representing more than forty-nine
percent (49%) of the combined voting power of the Company's then outstanding
securities;
(b) Individuals who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a majority of the
Board; provided, however, that any individual becoming a director subsequent to
the date hereof whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board;
(c) Consummation of a reorganization, merger or consolidation of the
Company or sale or other disposition of all or substantially all of the assets
of the Company (a "Business Combination"), in each case, unless, following such
Business Combination, (i) all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the then-outstanding
shares of common stock of the Company (the "Outstanding Company Common Stock")
and the combined voting power of the then-outstanding voting securities of the
Company entitled to vote generally in the election of directors (the
"Outstanding Company Voting Securities") immediately prior to such Business
Combination beneficially own, directly or indirectly, more than sixty percent
(60%) of, respectively, the then-outstanding shares of common stock and the
combined voting power of the then-outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without limitation, a
corporation which as a result of such
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transaction owns the Company or all or substantially all of the Company's assets
either directly or through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Business Combination
of the Outstanding Company Common Stock and Outstanding Company Voting
Securities, as the case may be, (ii) no Person (excluding any corporation
resulting from such Business Combination or any employee benefit plan (or
related trust) of the Company or such corporation resulting from such Business
Combination) beneficially owns, directly or indirectly, thirty percent (30%) or
more of, respectively, the then outstanding shares of common stock of the
corporation resulting from such Business Combination, or the combined voting
power of the then-outstanding voting securities of such corporation except to
the extent that such ownership existed prior to the Business Combination and
(iii) at least a majority of the members of the board of directors of the
corporation resulting from such Business Combination were members of the
Incumbent Board at the time of the execution of the initial agreement, or of the
action of the Board, providing for such Business Combination; or
(d) Approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company other than to a corporation which
would satisfy the requirements of clauses (i), (ii) or (iii) of Subsection (c)
of this Section 8.2, assuming for this purpose that such liquidation or
dissolution was a Business Combination.
ARTICLE IX
MISCELLANEOUS
9.1 Amendments and Termination. The Board may amend, alter or discontinue
the Plan at any time, but no amendment, alteration or discontinuation shall be
made which would impair the rights of a Participant under an Option theretofore
granted without the Participant's consent, except such an amendment (a) made to
avoid an expense charge to the Company or an Affiliate, (b) made to cause the
Plan to qualify for the exemption provided by Rule 16b-3, or (c) made to permit
the Company or an Affiliate a deduction under the Code. In addition, no such
amendment shall be made without the approval of the Company's stockholders to
the extent such approval is required by law or agreement. The Committee may
amend, alter or discontinue the terms of any Option theretofore granted,
prospectively or retroactively, on the same conditions and limitations (and
exceptions to limitations) as the Board and further subject to any approval or
limitations the Board may impose.
Subject to the above provisions, the Board shall have the authority to
amend the Plan to take into account changes in law and tax and accounting rules,
as well as other developments, and to grant Options which qualify for beneficial
treatment under such rules without stockholder approval. Notwithstanding
anything in the Plan to the contrary, if any right under this Plan would cause a
transaction to be ineligible for pooling of interest accounting that would, but
for the right hereunder, be eligible for such accounting treatment, the
Committee may modify or adjust the
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right so that pooling of interest accounting shall be available, including the
substitution of Common Stock having a Fair Market Value equal to the cash
otherwise payable hereunder for the right which caused the transaction to be
ineligible for pooling of interest accounting.
9.2 Unfunded Status of Plan. It is intended that this Plan be an
"unfunded" plan for incentive and deferred compensation. The Committee may
authorize the creation of trusts or other arrangements to meet the obligations
created under this Plan to deliver Common Stock or make payments; provided,
however, that, unless the Committee otherwise determines, the existence of such
trusts or other arrangements is consistent with the "unfunded" status of this
Plan.
9.3 Status of Options Under Section 162(m) of the Code. It is the intent
of the Company that Options granted to persons who are "covered employees"
within the meaning of Section 162(m) of the Code shall constitute "qualified
performance-based compensation" satisfying the requirements of Section 162(m) of
the Code. Accordingly, the provisions of the Plan shall be interpreted in a
manner consistent with Section 162(m) of the Code. If any provision of the Plan
or any agreement relating to such an Option does not comply or is inconsistent
with the requirements of Section 162(m) of the Code, such provision shall be
construed or deemed amended to the extent necessary to conform to such
requirements.
9.4 General Provisions.
(a) Representation. The Committee may require each person purchasing
shares pursuant to an Option to represent to and agree with the Company in
writing that such person is acquiring the shares without a view to the
distribution thereof. The certificates for such shares may include any legend
which the Committee deems appropriate to reflect any restrictions on transfer.
(b) No Additional Obligation. Nothing contained in this Plan shall
prevent the Company or an Affiliate from adopting other or additional
compensation arrangements for its employees.
(c) Withholding. No later than the date as of which an amount first
becomes includible in the gross income of the Participant for Federal income tax
purposes with respect to any Option, the Participant shall pay to the Company
(or other entity identified by the Committee), or make arrangements satisfactory
to the Company or other entity identified by the Committee regarding the payment
of, any Federal, state, local or foreign taxes of any kind required by law to be
withheld with respect to such amount required in order for the Company or an
Affiliate to obtain a current deduction. To the extent permitted by the
Committee, withholding obligations may be settled with Common Stock, including
Common Stock that is part of the Option that gives rise to the withholding
requirement provided that any applicable requirements under Section 16 of the
Exchange Act are satisfied. The obligations of the Company under this Plan
shall be conditional on such payment or arrangements, and the Company and its
Affiliates shall, to the extent
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permitted by law, have the right to deduct any such taxes from any payment
otherwise due to the Participant. If the Participant disposes of shares of
Common Stock acquired pursuant to an Incentive Stock Option in any transaction
considered to be a disqualifying transaction under the Code, the Participant
must give written notice of such transfer and the Company shall have the right
to deduct any taxes required by law to be withheld from any amounts otherwise
payable to the Participant.
(d) Prior Grants. This Plan is expressly intended to comprehensively
amend and restate the Atlantic Beverage Company, Inc. Stock Option Plan, as
amended prior to the Effective Date, and the Atlantic Beverage Company, Inc.
Directors Stock Option Plan; and all options previously granted by the Board of
Directors or the Committee, pursuant to such plans or otherwise, shall be
treated as granted pursuant to this Plan; provided, however, that no recipient
shall have their rights associated with such previously issued options impaired
without their consent. Specifically, attached as Exhibit A is a list of options
previously granted to officers subject to Section 16 of the Exchange Act,
directors, independent contractors and consultants to which this Section 9.4(d)
shall apply. In addition to options listed on Exhibit A, this Section is also
intended to apply to options previously granted to employees which are not
officers subject to Section 16 of the Exchange Act.
(e) Reinvestment. The reinvestment of dividends in additional
Restricted Stock at the time of any dividend payment shall only be permissible
if sufficient shares of Common Stock are available for such reinvestment (taking
into account then outstanding Options and other Options).
(f) Representation. The Committee shall establish such procedures as
it deems appropriate for a Participant to designate a Representative to whom any
amounts payable in the event of the Participant's death are to be paid.
(g) Controlling Law. This Plan and all Options made and actions taken
thereunder shall be governed by and construed in accordance with the laws of the
State of Illinois (other than its law respecting choice of law). This Plan shall
be construed to comply with all applicable law, and to avoid liability to the
Company, an Affiliate or a Participant, including, without limitation, liability
under Section 16(b) of the Exchange Act.
(h) Offset. Any amounts owed to the Company or an Affiliate by the
Participant of whatever nature may be offset by the Company from the value of
any shares of Common Stock, cash or other thing of value under this Plan or an
Agreement to be transferred to the Participant, and no shares of Common Stock,
cash or other thing of value under this Plan or an Agreement shall be
transferred unless and until all disputes between the Company and the
Participant have been fully and finally resolved and the Participant has waived
all claims to such against the Company or an Affiliate.
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(i) Fail-Safe. With respect to persons subject to Section 16 of the
Exchange Act, transactions under this Plan are intended to comply with all
applicable conditions of Rule 16b-3 or Rule 16a-1(c)(3), as applicable. To the
extent any provision of the Plan or action by the Committee fails to so comply,
it shall be deemed null and void, to the extent permitted by law and deemed
advisable by the Committee. Moreover, in the event the Plan does not include a
provision required by Rule 16b-3 or Rule 16a-1(c)(3) to be stated herein, such
provision (other than one relating to eligibility requirements or the price and
amount of Options) shall be deemed to be incorporated by reference into the Plan
with respect to Participants subject to Section 16.
(j) Right to Recapitalize. The grant of an Option shall in no way
affect the right of the Company to adjust, reclassify, reorganize or otherwise
change its capital or business structure or to merge, consolidate, dissolve,
liquidate or sell or transfer all or any part of its business or assets.
9.5 Mitigation of Excise Tax. Subject to any other agreement between the
Participant and the Company or an Affiliate, if any payment or right accruing to
a Participant under this Plan (without the application of this Section 9.5),
either alone or together with other payments or rights accruing to the
Participant from the Company or an Affiliate ("Total Payments") would constitute
a "parachute payment" (as defined in Section 280G of the Code and regulations
thereunder), such payment or right shall be reduced to the largest amount or
greatest right that will result in no portion of the amount payable or right
accruing under this Plan being subject to an excise tax under Section 4999 of
the Code or being disallowed as a deduction under Section 280G of the Code. The
determination of whether any reduction in the rights or payments under this Plan
is to apply shall be made by the Committee in good faith after consultation with
the Participant, and such determination shall be conclusive and binding on the
Participant. The Participant shall cooperate in good faith with the Committee
in making such determination and providing the necessary information for this
purpose. The foregoing provisions of this Section 9.5 shall apply with respect
to any person only if after reduction for any applicable federal excise tax
imposed by Section 4999 of the Code and federal income tax imposed by the Code,
the Total Payments accruing to such person would be less than the amount of the
Total Payments as reduced, if applicable, under the foregoing provisions of this
Plan and after reduction for only federal income taxes.
9.6 Rights with Respect to Continuance of Employment. Nothing contained
herein shall be deemed to alter the relationship between the Company or an
Affiliate and a Participant, or the contractual relationship between a
Participant and the Company or an Affiliate if there is a written contract
regarding such relationship. Nothing contained herein shall be construed to
constitute a contract of employment between the Company or an Affiliate and a
Participant. The Company or an Affiliate and each of the Participants continue
to have the right to terminate the employment or service relationship at any
time for any reason, except as provided in a written contract. The Company or
an Affiliate shall have no obligation to retain the Participant in its employ or
service as a result of this Plan. There shall be no inference as to the length
of employment or service
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hereby, and the Company or an Affiliate reserves the same rights to terminate
the Participant's employment or service as existed prior to the individual
becoming a Participant in this Plan.
9.7 Options in Substitution for Options Granted by Other Corporations.
Options may be granted under this Plan from time to time in substitution for
options in respect of other plans of other entities. The terms and conditions
of the Options so granted may vary from the terms and conditions set forth in
this Plan at the time of such grant as the majority of the members of the
Committee may deem appropriate to conform, in whole or in part, to the
provisions of the awards in substitution for which they are granted.
9.8 Procedure for Adoption. Any Affiliate of the Company on the Effective
Date shall be deemed to have adopted this Plan on the Effective Date. Any other
Affiliate of the Company may by resolution of such Affiliate's board of
directors, with the consent of the Board of Directors and subject to such
conditions as may be imposed by the Board of Directors, adopt this Plan as of
the date specified in the board resolution.
9.9 Procedure for Withdrawal. Any Affiliate which has adopted this Plan
may, by resolution of the board of directors of such direct or indirect
subsidiary, with the consent of the Board of Directors and subject to such
conditions as may be imposed by the Board of Directors, terminate its adoption
of this Plan.
9.10 Delay. If at the time a Participant incurs a Termination of
Employment (other than due to Cause) or if at the time of a Change in Control,
the Participant is subject to "short-swing" liability under Section 16 of the
Exchange Act, any time period provided for under this Plan or an Agreement to
the extent necessary to avoid the imposition of liability shall be suspended and
delayed during the period the Participant would be subject to such liability,
but not more than six (6) months and one (1) day and not to exceed the Option
Period, whichever is shorter. The Company shall have the right to suspend or
delay any time period described in this Plan or an Agreement if the Committee
shall determine that the action may constitute a violation of any law or result
in liability under any law to the Company, an Affiliate or a stockholder of the
Company until such time as the action required or permitted shall not constitute
a violation of law or result in liability to the Company, an Affiliate or a
stockholder of the Company. The Committee shall have the discretion to suspend
the application of the provisions of this Plan required solely to comply with
Rule 16b-3 if the Committee shall determine that Rule 16b-3 does not apply to
this Plan.
9.11 Headings. The headings contained in this Plan are for reference
purposes only and shall not affect the meaning or interpretation of this Plan.
9.12 Severability. If any provision of this Plan shall for any reason be
held to be invalid or unenforceable, such invalidity or unenforceability shall
not effect any other provision hereby, and this Plan shall be construed as if
such invalid or unenforceable provision were omitted.
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9.13 Successors and Assigns. This Plan shall inure to the benefit of and
be binding upon each successor and assign of the Company. All obligations
imposed upon a Participant, and all rights granted to the Company hereunder,
shall be binding upon the Participant's heirs, legal representatives and
successors.
9.14 Entire Agreement. This Plan and the Agreement constitute the entire
agreement with respect to the subject matter hereof and thereof, provided that
in the event of any inconsistency between this Plan and the Agreement, the terms
and conditions of the Agreement shall control.
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IN WITNESS WHEREOF, this instrument has been executed by the undersigned as
of April 12, 1999.
ATLANTIC PREMIUM BRANDS, LTD.
By: /s/ ALAN F. SUSSNA
--------------------------------------------
Name: Alan F. Sussna
Title: President and Chief Executive Officer
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EXHIBIT A
TOTAL NUMBER OF
OPTIONS GRANTED PRIOR TO THE
HOLDER EFFECTIVE DATE
- ------ ----------------------------
Douglas L. Becker 30,000
Eric D. Becker 70,000
Anthony J. Brocato, Jr. 24,000
Thomas M. Dalton 75,000
Merrick M. Elfman 74,500
Steve Englander 45,000
Ericson Marketing Communications 8,000
Brian T. Fleming 20,000
John T. Hanes 20,000
Rudolph Christopher Hoehn-Saric 30,000
Rick Inatome 44,500
John Izzo 20,000
George Cook Jordan, Jr. 44,500
Alan Macksey 25,000
John A. Miller 44,500
Stoelting, Inc. 30,000
Alan F. Sussna 750,000
Steven M. Taslitz 74,500
Tom D. Wippman 18,000
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