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EXHIBIT 4.5
STOCK OPTION AGREEMENT
THIS AGREEMENT is made as of the day of , 1996, by and between
National Beverage Corp., a Delaware corporation (the "Company") and
(the "Optionee").
WITNESSETH
WHEREAS, in recognition of the past and future services provided by the
Optionee to the Company as a non-employee director and for the purposes of
aligning the interests of the Optionee more closely with the interests of the
Company's stockholders, the Company is willing to enter into this Agreement for
the purpose of granting to the Optionee an option (the "Option") to purchase
shares (the "Shares") of Common Stock, par value $.01 per share (the
"Common Stock"), of the Company.
NOW, THEREFORE, the Company and Optionee intending to be legally bound,
hereby agree as follows:
1. Grant of Options. The Company hereby grants the Optionee the Option,
exercisable for the period and upon the terms hereinafter set forth, to
purchase the Shares at an exercise price (the "Exercise Price") of $ per
share, subject to adjustment as provided in paragraph 5 hereof.
2. Term of Option. (a) This Option is granted as of the date hereof
(referred to herein as the "Date of Grant"), and, except as otherwise provided
in paragraph 2(b) below, will terminate and expire ten (10) years from the date
hereof (the "Expiration Date").
(b) Except as provided below, Options that have not vested on the date
the Optionee ceases, for any reason, to serve as a director of the Company
shall be forfeited and terminated immediately upon termination of service.
(c) In the event an Optionee ceases, for any reason except for "cause"
or "voluntary resignation" (as defined below), to serve as a director of the
Company all unexercised Options shall immediately vest and such Optionee (or
in the event of the Optionee's death, the Optionee's legal representative) may
exercise all such Options; provided, however, that such exercise must occur
within 90 days of the date of such cessation and in no event may the Options
be exercised more than ten (10) years from the date of the grant thereof. If
the Optionee ceases to serve as a director of the Company because of a
termination for "cause" or "voluntary resignation", Options that have become
exercisable before the date of the Optionee's termination of service shall be
exercisable for a period of thirty days following termination for cause or
voluntary resignation and Options that have not become exercisable shall
terminate. For purposes of this Plan, the term (x) "cause" shall include, but
not be limited to, embezzlement or misappropriation of corporate funds, other
acts of dishonesty, significant activities harmful to the reputation of the
Company, a significant violation of the Company policy, willful refusal to
perform, or substantial disregard of, the duties properly assigned to the
Optionee, or a significant violation of any contractual, statutory or common
law duty of loyalty to the Company and (y) "voluntary resignation" shall mean
the voluntary resignation from the Board of Directors by the Optionee except
in connection with permanent retirement.
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3. Vesting of Option. (a) The Vested Portion (as hereinafter defined) of
the Option may be exercised, to the extent not previously exercised, in whole
or in part, at any time or from time to time prior to the expiration of the
Option in the manner provided below.
(b) The "Vested Portion" of the Option means that percentage of the
total number of shares, as specified in this Agreement, for which the Option is
exercisable.
(c) Unless the Option is previously terminated pursuant to this
Agreement, this Option shall be exercisable as set out in the table below which
corresponds with the period during which the Option (or portion thereof) is
exercised:
PERIOD VESTED PORTION
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One (1) year from date of grant 20%
Two (2) years from date of grant 20%
Three (3) years from date of grant 20%
Four (4) years from date of grant 20%
Five (5) years from date of grant 20%
4. Non-Transferability. No Option shall be assignable or transferable by
the Optionee, except by will or pursuant to applicable laws of descent and
distribution. During the life of an Optionee, an Option shall be exercisable
only by such Optionee or such Optionee's legal representative.
5. Adjustment Upon Changes in Capitalization. (a) If the outstanding
shares of Common Stock are subdivided, consolidated, increased, decreased,
changed into, or exchanged for the different number or kind of shares or other
securities of the Company through reorganization, recapitalization,
reclassification, capital adjustment or otherwise, or if the Company shall
issue additional shares of Common Stock as a dividend or pursuant to a stock
split, then the number and kind of shares of Common Stock available for
issuance pursuant to the exercise of this Option and all shares subject to this
Option and the Exercise Price of such Option shall be adjusted to prevent the
inequitable enlargement or dilution of any rights hereunder. Distributions to
the Company's shareholders consisting of property other than shares of Common
Stock of the Company or its successor and distributions to shareholders of
rights to subscribe for shares of Common Stock shall not result in the
adjustment of the Shares purchasable under the Option or the Exercise Price of
the Option. Adjustments under this paragraph shall be made by the Board whose
determination thereof shall be conclusive and binding. Any fractional Share of
Common Stock resulting from adjustments pursuant to this paragraph 5(a) shall
be eliminated from the Option. Nothing contained herein shall be construed to
affect in any way the right or power of the Company to make or become a party
to any adjustments, reclassifications, reorganizations or changes in its
capital or business structure or to merge, consolidate, dissolve, liquidate or
otherwise transfer all or any part of its business or assets.
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(b) If, in the event of a dissolution or liquidation of the Company or
in the event of a merger or consolidation, in which the Company is not the
surviving corporation, and the agreements governing such merger or
consolidation do not provide for the issuance to the Optionee of a Substitute
Option (as hereinafter defined), or for the express assumption of such
outstanding Option by the surviving corporation, the Optionee shall have the
right immediately prior to the effective date of such merger, consolidation,
liquidation or dissolution to exercise the Option in whole or in part, without
regard to the vesting provisions contained in paragraph 3. In any such event,
the Company will mail or cause to be mailed to the Optionee a notice specifying
the date that is to be fixed as of which all holders of record of the shares of
Common Stock will be entitled to exchange such shares for securities, cash or
other property issuable or deliverable pursuant to such merger, consolidation,
liquidation or dissolution. Such notice shall be mailed at least twenty (20)
days prior to the date therein specified. In the event the Option is not
exercised in its entirety on or prior to the date specified therein, the Option
shall terminate as of said date. For purposes of this paragraph 5(b), a
Substitute Option shall mean an option under which the Optionee has the right
to purchase on "substantially equivalent terms" (as hereinafter defined) (in
lieu of shares of Common Stock), the stock, securities or other property he
would be entitled to receive upon consummation of such merger or consolidation
had he exercised the Option immediately prior thereto. For purposes of the
preceding sentence, substantially equivalent terms shall be those terms given
approval by the Board of Directors of the Company in its sole discretion.
6. Manner of Exercise. The Option shall be exercised when written notice
of such exercise, signed by the person entitled to exercise the Option, has
been delivered or transmitted by registered or certified mail, to the Secretary
of the Company at its principal office. Said written notice shall specify the
number of Shares purchasable under the Option which such person then wishes to
purchase and shall be accompanied by such documentation, if any, as may be
required by the Company as provided in paragraph 7 and payment of the aggregate
option price. Such payment shall be in the form of (i) cash or a certified
check (unless such certification is waived by the Company) payable to the order
of the Company in the amount of the aggregate option price for such number of
Shares, or (ii) certificates duly endorsed for transfer (with all transfer
taxes paid or provided for) evidencing a number of shares of Common
Stock of the Company the fair market value of which is equal to the aggregate
option exercise price of the Shares being purchased, or (iii) a combination of
these methods of payment. Delivery of said notice and such documentation shall
constitute an irrevocable election to purchase the Shares specified in said
notice and the date on which the Company receives said notice and documentation
shall, subject to the provisions of paragraph 7, be the date as of which the
Shares so purchased shall be deemed to have been issued. The person entitled
to exercise the Option shall not have the right or status as a holder of the
Shares to which such exercise relates prior to receipt by the Company of such
payment, notice and documentation. For purposes of this Agreement, the "fair
market value per share" of the Shares on a given date shall be: (i) if the
shares are listed on a registered securities exchange, the closing price per
share of the shares on such date (or, if there was no trading on such exchange
on such date, on the next preceding day on which there was trading); (ii) if
the shares are not listed on a registered securities exchange but the bid and
asked prices per share for the Shares are provided by NASDAQ, the National
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Quotation Bureau Incorporated or any similar organization, the average
of the closing bid and asked price per share of the Shares on such date (or, if
there was no trading in the shares on such date, on the next preceding day on
which there was trading) as provided by such organization; and (iii) if the
shares are not traded on a registered securities exchange and the bid and asked
prices per share of the Shares are not provided by NASDAQ, the National
Quotation Bureau Incorporated or any similar organization, as determined in
good faith by the Board of Directors of the Company.
Anything in the Agreement to the contrary notwithstanding, in no event
may the Option be exercisable if the Company shall, at any time and in its sole
discretion, determine that (i) the listing, registration or qualification of
any shares otherwise deliverable upon such exercise is required pursuant to any
securities exchange or under any state or federal law, or (ii) the consent or
approval of any regulatory body or the satisfaction of withholding tax or other
withholding liabilities is necessary or desirable in connection with such
exercise. In such event, such exercise shall be held in abeyance and shall not
be effective unless and until such withholding, listing, registration,
qualification or approval shall have been effected or obtained free of any
conditions not acceptable to the Company.
7. Limitations on Transferability. (a) The Optionee hereby acknowledges
that the Shares which may be acquired pursuant to any exercise of the Option
will not be registered under the Securities Act of 1933 (the "Act"), in part in
reliance upon the exemption from the registration requirements of the Act
afforded by Section 4(2) of the Act for transactions by an issuer not involving
any public offering. The Optionee further acknowledges that the Company's
reliance upon this exemption at the time of any exercise of the Option will be
predicated upon the Optionee's representation at that time that such Shares are
being acquired by him as an investment solely for his account and that he then
has no intention of selling, pledging, transferring or otherwise distributing
or disposing of all or any part of such Shares or any interest or participation
therein except as permitted by the Act and the rules and regulations
promulgated thereunder. The Optionee further acknowledges that, accordingly,
the receipt by the Board of Directors of written representations to such effect
may be required as a condition precedent to the right to exercise the Option,
in whole or in part.
(b) The Optionee agrees that there will be no disposition of all or any
part of the Shares acquired pursuant to any exercise of the Option or any
interest or interests therein, unless and until such disposition has been
registered under the Act or the Company receives an opinion of its counsel that
registration under the Act is not required in connection with such disposition.
(c) The Optionee agrees that upon any exercise of the Option, the
transfer agent for the Shares acquired pursuant to such exercise will be
instructed to place appropriate stop orders against the transfer of the Shares
and that the certificate or certificates to be issued representing the Shares
will conspicuously bear a legend substantially as follows:
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The shares represented by this certificate have
not been registered under the Securities Act of
1933. The shares have been acquired for
investment and may not be sold, transferred,
pledged, hypothecated or otherwise disposed of
in the absence of an effective registration
statement for the shares under the Securities
Act of 1933 or an opinion of counsel to the
Company that registration is not required under
said Act.
(d) The Optionee acknowledges that he is presently familiar with the
Company's business, operations and financial condition. In this connection,
the Company agrees that, upon the request of the Optionee, it will provide the
Optionee with a copy of its then most recent Annual Report to Shareholders, its
then most recent definitive Proxy Statement in connection with a meeting of its
shareholders for the election of directors, its then most recent Annual Report
on Form 10-K, and all Quarterly Reports on Form 10-Q and Current Reports on
Form 8-K filed by the Company with the Securities and Exchange Commission
subsequent to the filing of its then most recent Annual Report on Form 10-K.
(e) Optionee represents that he has not sold directly or indirectly,
any shares of Common Stock of the Company at any time during the previous six
month period and agrees not to sell any shares for the six month period from
the date hereof. Optionee agrees not to exercise this Option at any time
during the six month period following the date hereof.
8. Transfers in Violation of Agreement. The Company shall not be required
(a) to transfer on its books this Option or any Shares of the Company which
shall have been sold or transferred in violation of any of the provisions set
forth in this Agreement or (b) to treat as owner of such Option or Shares or to
accord the right to vote as such owner or to pay dividends to any transferee to
whom such shares shall have been so transferred.
9. Further Instruments. The parties agree to execute such further
instruments and to take such further action as may reasonably be necessary to
carry out the intent of this Agreement.
10. Notice. Any notice or request required or permitted under this
Agreement shall be in writing and given or made by postage prepaid registered
or certified mail, return receipt requested, addressed to the other party at
the address hereinafter shown below his or its signature or at such other
address as such party may from time to time specify for the purpose in a notice
similarly given to the other party.
11. Successors and Assigns. This Agreement shall inure to the benefit of
the successors and assigns of the Company and, subject to the restrictions on
transfer herein set forth, be binding upon the Optionee, his heirs, executors,
administrators, successors and assigns.
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12. Governing Law; Entire Agreement; Amendments. This Agreement, shall be
construed and enforced in accordance with the internal laws of the State of
Delaware, applicable to agreements made or performed in said State and,
together with the Plan, constitutes the entire agreement of the parties with
respect to the subject matter hereof superseding all prior written or oral
agreements, and no amendment or addition hereto shall be deemed effective
unless agreed to in writing by the parties or as otherwise permitted by the
Plan.
13. Separability. If any provision of this Agreement is held by a court
of competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions shall nevertheless continue in full force and effect without being
impaired or invalidated in any way and shall be construed in accordance with
the purposes and tenor and effect of this Agreement.
14. Waiver of Breach. A waiver by the Company or the Optionee of a breach
of any provision of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach by the other party.
15. Headings. The paragraph headings contained in this Agreement have
been inserted for identification and reference purposes and shall not determine
the construction or interpretation of this Agreement.
16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute a single instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
"OPTIONEE" NATIONAL BEVERAGE CORP.
By:
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(Signature)
Title: Chairman, President & CEO
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(Print Name)
Address: Address: One North University Drive
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- ------------------------------------- Fort Lauderdale, FL 33324
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