Exhibit 4.1(l)
Stock Option Compensation Agreement
Bravo! Foods International Corp.
(Employee/Consultant Benefit Plan)
1. Introduction. Agreement made this 25th day of January, 2002,
between Bravo! Foods International Corp., a Delaware corporation having a
principal place of business at 00000 X.X. Xxxxxxx 0, Xxxxx Xxxx Xxxxx,
Xxxxxxx (the "Company") and Xxxxx X. Xxxxxxx, x/x Xxxxxx Xxx, Xxxxxxxxxxxx,
XX 00000 ("Option Holder").
2. Grant of Option. In connection with and in consideration of the
Option Holder's software development services for the Company, the
Company hereby grants to the Option Holder the Option of purchasing shares
of the Company's common stock (Shares) in the amounts, at the price, and
subject to all the terms and conditions set out in this Agreement. Subject
to Section 5 hereof, this Option is granted for the purchase of 25,000
Shares, as follows.
3. Vesting Date and Exercise Price of Options. The vesting of this
grant shall be immediate (Vesting Date) and, subject to Section 5 hereof,
this Option has an exercise price of $1.00 per Share purchased upon
exercise.
4. When Options are Exercisable. Except as otherwise provided herein,
the Option Holder may exercise his option rights as set forth in paragraphs
2 and 3 herein, at any time on or after the Vesting Date and prior to
January 25, 2007.
4.1 Method of Exercise; Payment; Issuance of New Option. The
exercise of this Option shall be made, in whole or in part, by the
surrender of this Option (with the notice of exercise form attached hereto
as Exhibit A duly executed) at the principal office of the Company and by
the payment to the Company of an amount equal to the Exercise Price
multiplied by the number of Shares being purchased, which amount may be
paid in cash or by check. In the event of any exercise of the rights
represented by this Option, certificates for the Shares so purchased shall
be delivered to the Holder hereof within a reasonable time and, unless this
Option has been fully exercised or expired, a new Option representing that
portion of the Shares, if any, with respect to which this Option shall not
then have been exercised, shall also be issued to the Holder within such
reasonable time.
4.2 Stock Fully Paid; Reservation of Option Shares. All of the
Shares issuable upon the exercise of the rights represented by this Option
will, upon issuance and receipt of the Exercise Price therefor, be fully
paid and nonassessable, and free from all taxes, liens and charges with
respect to the issue thereof. During the period within which the rights
represented by this Option may be exercised, the Company shall at all times
have authorized and reserved for issuance a sufficient number of shares of
Common Stock to provide for the exercise of the rights represented by this
Option.
5. Adjustment of Exercise Price and Number of Option Shares. Subject to
the provisions of Section 4 hereof, the number and kind of securities
purchasable upon the exercise of this Option and the Exercise Price
therefor shall be subject to adjustment from time to time upon the
occurrence of certain events, as follows:
5.1 In the event the Company shall at any time following the date
hereof subdivide the outstanding shares of Common Stock, or shall issue a
stock dividend on its outstanding Common Stock, the number of shares of
Common Stock issuable upon exercise of this Option immediately prior to
such subdivision or to the issuance of such stock dividend shall be
proportionately increased, and the Exercise Price shall be proportionately
decreased; and in the event the Company shall at any time following the
date hereof combine the outstanding shares of Common Stock, the number of
shares of Common Stock issuable upon exercise of this Option immediately
prior to such combination shall be proportionately decreased, and the
Exercise Price shall be proportionately increased, effective at the close
of business on the date of such subdivision, stock dividend or combination,
as the case may be.
5.2 If the Company is, following the date hereof, recapitalized
through the subdivision or combination of its outstanding shares of Common
Stock into a larger or smaller number of shares, the number of shares of
Common Stock for which this Option may be exercised shall be increased or
reduced in the same proportion as the increase or decrease in the
outstanding shares of Common Stock and the then applicable Exercise Price
shall be adjusted by multiplying by a fraction with a numerator equal to
the number of shares of Common Stock purchasable upon exercise hereof
immediately prior to such subdivision or combination and the denominator of
which shall be the number of shares of Common Stock purchasable immediately
following such subdivision or combination.
5.3 Subject to Section 4 hereof, in the event of any consolidation
or merger of the Company with another entity in a bona fide transaction
(i.e., not a mere recapitalization, reincorporation for the purpose of
changing corporate domicile, or similar transaction), at any time prior to
the Expiration Date, the Holder shall have the right upon exercise of this
Option, to receive the same kind and number of Shares and other securities,
cash or other property as would have been distributed to the Holder had the
Holder exercised this Option immediately prior to such consolidation or
merger.
6. Fractional Shares. No fractional shares of Common Stock will be
issued in connection with any exercise hereunder, but in lieu thereof the
Company shall make a cash payment therefor upon the basis of the Exercise
Price then in effect.
7. "Employee Benefit Plan"; Transfer, Assignment or Loss of Option and
Option Shares
7.1 The parties agree that this Option shall be deemed part of an
"employee benefit plan" as defined in Rule 405 of Regulation C under the
Securities Act of 1933 and that the "plan" shall be self administered by
Holder. Holder acknowledges the following:
a. The Company will cause to be filed a registration
statement on Form S-8 to register the common stock issued to Holder
by the Company pursuant to this agreement and to register the resale
of that common stock.
b. The information contained in Form S-8 and any resale
prospectus may disclose details concerning this agreement, which
disclosure will not be confidential.
c. This agreement is compensatory in nature and purpose with
respect to obligations of the Company owing to Holder, which from
time to time will be current obligations, and is not subject to any
provisions of the Employee Retirement Income Security Act of 1974.
x. Xxxxxx shall self administer this plan and has the sole
discretion to dispose of or distribute the securities issued under
this agreement, unless prohibited by law.
e. The common stock of the Company issued under this
agreement has been registered under Section 12(g) of the Securities
Exchange Act of 1934.
f. As an "employee benefit plan" this agreement is limited
to the benefit of Holder. The Company, however, may enter into
similar agreements, from time to time, that constitute separate
employee benefit plans for other consultants, advisors, employees,
directors or officers of the Company.
x. Xxxxxx is not required to contribute toward the
securities issued under this agreement, except for services rendered
by Holder under this agreement.
h. Given the nature of this agreement as compensatory in
nature and purpose and the sole discretion of Holder in administering
this plan, the Company will not issue any reports concerning the plan
to Holder, other than to provide an annual recap of the securities
issued and cash paid hereunder as required by the Internal Revenue
Code and appurtenant rules and regulations.
7.2 Any assignment permitted hereunder shall be made by surrender
of this Option to the Company at its principal office with the Assignment
Form attached hereto as Exhibit B duly executed. In such event the Company
shall, upon payment by the Holder of any issuance, transfer tax incurred,
or to be incurred by the Company with respect to such transfer, execute and
deliver a new Option in the name of the assignee named in such instrument
of assignment and this Option shall promptly be canceled. This Option may
be divided or combined with other Options which carry the same rights upon
presentation thereof at the principal office of the Company together with a
written notice signed by the Holder thereof, specifying the names and
denominations in which new Options are to be issued. Upon any partial
transfer, the Company will sign, issue and deliver to the Holder a new
Option with respect to any portion not so transferred.
7.3 Upon receipt by the Company of evidence satisfactory to it of
the loss, theft, destruction or mutilation of this Option (provided that an
affidavit of the Holder shall be satisfactory for such purpose), and of
indemnity satisfactory to it (provided that if the Holder is the original
Holder of this Option, its own indemnification agreement shall under all
circumstances be satisfactory, and no bond shall be required), and upon
surrender and cancellation of this Option, if mutilated, the Company will
execute and deliver a new Option of like tenor and date and any such lost,
stolen, or destroyed Option shall thereupon become void.
7.4 In order to ensure compliance with the restrictions referred to
herein, the Company may issue appropriate "stop transfer" instructions to
its transfer agent.
7.5 The Company shall not be required (i) to transfer on its books
the Option or any Shares that have been sold or otherwise transferred in
violation of any of the provisions of this Option or (ii) to treat as owner
of such Shares or to accord the right to vote or pay dividends to an
purchaser or other transferee to whom such Shares shall have been so
transferred.
8. Representations and Covenants of the Holder. The Holder represents
that this Option and any Shares issued or issuable upon exercise of this
Option, to be received will be acquired for investment for its own account,
not as a nominee or agent, and not with a view to the sale or distribution
of any part thereof, and that it has no present intention of selling,
granting any participation in or otherwise distributing the same. Such
Holder represents that it is experienced in evaluating companies such as
the Company, is able to fend for itself in investments such as this one,
and has such knowledge and experience in financial and business matters
that it is capable of evaluating the merits and risks of its prospective
investment in the Company.
9. Rights of Stockholders. No holder of this Option shall be entitled,
as a Option holder, to vote or receive dividends or be deemed the holder of
Common Stock or any other securities of the Company which may at any time
be issuable on the exercise hereof for any purpose, nor shall anything
contained herein be construed to confer upon the holder of this Option, as
such, any of the rights of a stockholder of the Company or any right to
vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action (whether upon any recapitalization, issuance of stock,
reclassification of stock, change of par value or change of stock to no par
value, consolidation, merger, conveyance, or otherwise) or to receive
notice of meetings, or to receive dividends or subscription rights or
otherwise until the Option shall have been exercised and the Shares
purchased upon the exercise hereof shall have become deliverable, as
provided herein.
10. Notices, Etc. All notices and other communications from the Company
to the Holder shall be mailed by first class registered or certified mail,
postage prepaid, at such address as may have been furnished to the Company
in writing by the Holder.
11. Governing Law, Headings. This Option is being delivered in the State
of Delaware and shall be construed and enforced in accordance with and
governed by the laws of such State. The headings in this Option are for
purposes of reference only, and shall not limit or otherwise affect any of
the terms hereof.
Bravo! Foods International Corp.
By: s/s Xxx X. Xxxxxx
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Xxx X. Xxxxxx
Chief Executive Officer
Option Holder
s/s Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
