JEREMY'S MICROBATCH ICE CREAMS, INC.
2000 STOCK OPTION PLAN
Effective as of July 10, 2000
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JEREMY'S MICROBATCH ICE CREAMS, INC.
2000 STOCK OPTION PLAN
1. Purpose
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Jeremy's MicroBatch Ice Creams, Inc. (the "Corporation") desires to
attract and retain the best available talent and encourage the highest level of
performance by employees and other persons who perform services for the
Corporation in order to serve the best interests of the Corporation and its
shareholders. By affording eligible persons the opportunity to acquire
proprietary interests in the Corporation and by providing them incentives to put
forth maximum efforts for the success of the Corporation's business, the
Jeremy's MicroBatch Ice Creams, Inc. 2000 Stock Option Plan (the "Plan") is
expected to contribute to the attainment of those objectives.
2. Scope and Duration
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Awards under the Plan may be granted in the form of incentive stock options
("incentive stock options") as provided in section 422 of the Internal Revenue
Code of 1986, as amended (the "Code") and nonqualified stock options
("nonqualified options") (unless otherwise indicated, references in the Plan to
"options" include incentive stock options and nonqualified options). Unless
otherwise provided by an option agreement or related resolution of the Board of
Directors of the Corporation (the "Board") any option granted under this Plan is
intended to be an incentive stock option. No option may be issued under the
Plan if in doing so the Corporation would exceed the limitations of Rule 701
under the Securities Act of 1933, as amended.
The maximum aggregate number of shares of the Corporation's common stock
($0.01 par value) (the "Common Stock") as to which awards may be granted from
time to time under the Plan is 750,000 shares. The shares available may be in
whole or in part, authorized but unissued shares or issued shares reacquired by
the Corporation, as the Board shall from time to time determine. Unless
otherwise provided by the Board, shares covered by expired or terminated options
and forfeited restricted shares or restricted units, shares subject to awards
that are paid in cash or surrendered upon the exercise of an option, and shares
received by the Corporation upon the exercise of an option will not be available
for subsequent awards under the Plan.
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No incentive stock option shall be granted under the Plan more than 10
years after the effective date of the Plan. Otherwise, the Plan will continue
until terminated pursuant to paragraph 17.
3. Administration
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The Plan shall be administered by the Board or a committee appointed by the
Board and consisting of not fewer than two members (the "Committee").
References to the Committee in this Plan shall be deemed to refer to the Board
if a Committee has not been appointed.
The Committee shall have plenary authority in its discretion, subject to
and not inconsistent with the express provisions of the Plan, (i) to grant
options, to determine the purchase price of the shares of Common Stock covered
by each option, the term of each option, the persons to whom, and the time or
times at which options shall be granted, and the number of shares to be covered
by each option; (ii) to designate options as incentive stock options or
nonqualified options; (iii) to interpret the Plan; (iv) to prescribe, amend and
rescind rules and regulations relating to the Plan; (v) to determine the terms
and provisions of the option agreements (which need not be identical) entered
into in connection with awards under the Plan; (vi) to determine exceptions to
the nontransferability of options; and (vii) to make all other determinations
deemed necessary or advisable for the administration of the Plan.
The Committee may delegate to one or more of its members or to one or more
agents such administrative duties as it may deem advisable, and the Committee or
any person to whom it has delegated duties as aforesaid may employ one or more
persons to render advice with respect to any responsibility or authority the
Committee or such person may have under the Plan.
The Committee may employ attorneys, consultants, accountants or other
persons. The Committee, the Corporation and its officers and directors shall be
entitled to rely upon the advice, opinions or valuations of any such persons.
All actions taken and all interpretations and determinations made by the
Committee in good faith shall be final and binding upon all persons who have
received awards, the Corporation and all other interested persons. No member or
agent of the Committee shall be personally liable for any action, determination
or interpretation taken or made in good faith with respect to the Plan or awards
made thereunder, and all members and agents of the Committee shall be fully
indemnified and protected by the Corporation in respect of any such action,
determination or interpretation.
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4. Eligibility; Factors to be Considered in Granting Awards
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Awards will be limited to (i) employees of the Corporation, its
subsidiaries or parent and (ii) any nonemployee advisors or consultants
(excluding nonemployee directors) who may provide or who have provided services
to the Corporation, its predecessors or its subsidiaries or parent; provided,
however, that (x) awards in the form of incentive stock options may be granted
only to employees and (y) no award may be made to any member of the Committee.
In determining the persons to whom awards shall be granted and the number of
shares or units to be covered by each award, the Committee shall take into
account the nature of the employees' duties or the services provided, their
past, present and potential contributions to the success of the Corporation and
such other factors as it shall deem relevant in connection with accomplishing
the purposes of the Plan. A director of the Corporation or of a subsidiary or a
parent who is not also an employee of the Corporation will not be eligible to
receive an award. A person to whom an award has been granted shall be referred
to as a "participant."
A participant who has been granted an award or awards under the Plan may be
granted an additional award or awards, subject to such limitations as may be
imposed by the Code on the grant of incentive stock options. The Committee, in
its sole discretion, may grant to a participant who has been granted an award
under the Plan or any other plan maintained by the Corporation, one of its
subsidiaries or a parent, or any predecessors or successors thereto, in exchange
for the surrender and cancellation of such award, a new award in the same or a
different form and containing such terms, including without limitation a price
which is different (either higher or lower) than any price provided in the award
so surrendered and cancelled, as the Committee may deem appropriate.
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5. Option Price
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The purchase price of the Common Stock covered by each option shall be
determined by the Committee. However, in the case of an award made to any
participant in the form of an incentive stock option, the purchase price shall
not be less than 100% (or, in the case of an incentive stock option granted to a
"10% shareholder," as defined in Code section 422, 110%) of the fair market
value of the Common Stock on the date the option is granted as determined by the
Board of Directors in good faith (the "Fair Market Value"). Such price shall be
subject to adjustment as provided in paragraph 12. The Committee shall
determine the date on which an option is granted, provided that such date is
consistent with the Code and any applicable rules or regulations thereunder. In
the absence of such determination, the date on which the Committee adopts a
resolution granting an option shall be considered the date on which such option
is granted, provided the participant to whom the option is granted is promptly
notified of the grant and an option agreement is duly executed as of the date of
the resolution.
6. Term of Options, Units and Rights
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The term of each incentive stock option granted under the Plan shall not be
more than 10 years (or, in the case of a "10% shareholder," as defined in Code
section 422, 5 years) from the date of grant, as the Committee shall determine,
subject to earlier termination as provided in paragraphs 9 and 10. The term of
each nonqualified stock option shall be such period of time as the Committee
shall determine, subject to earlier termination as provided in paragraphs 9 and
10.
7. Exercise of Options; Loans
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(a) Subject to the provisions of the Plan and unless otherwise provided
in the option agreement, an option granted under the Plan shall become 100%
vested at the earliest of the participant's normal retirement date, the
participant's death or total disability (as defined in paragraph 13) or over a
3-year period commencing with the date of the participant's first paycheck from
the Corporation as follows: after 1 year - 1/3; after 2 years - 2/3; and on or
after 3 years - 3/3. In its sole discretion, the Committee may, in any case or
cases, prescribe different installments. The Committee may also, in its sole
discretion, accelerate any option at any time or, in any option agreement,
provide for the acceleration of the exercisability of any option based on the
occurrence of any event or satisfaction of any condition prescribed by the
Committee in its sole discretion.
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(b) An option may be exercised at any time or from time to time
(subject, in the case of an incentive stock option, to such restrictions as may
be imposed by the Code), as to any or all full shares as to which the option has
become exercisable. Notwithstanding the foregoing provision, without the prior
consent of the Committee, no option may be exercised at any time when the Fair
Market Value of the common stock to be acquired upon exercise is less than the
purchase price of the shares pursuant to the option.
(c) The purchase price of the shares as to which an option is exercised
shall be paid in full at the time of exercise; payment may be made in cash,
which may be paid by check or other instrument acceptable to the Corporation,
or, with the consent of the Committee, in shares of the Common Stock, valued at
the Fair Market Value on the date of exercise, or (if permitted by the Committee
and subject to such terms and conditions as it may determine) by surrender of
outstanding awards under the Plan. In addition, any amount necessary to satisfy
applicable federal, state or local tax requirements shall be paid promptly upon
notification of the amount due. The Committee may permit such amount to be paid
in shares of Common Stock previously owned by the participant, or a portion of
the shares of Common Stock that otherwise would be distributed to such
participant upon exercise of the option, or a combination of cash and shares of
such Common Stock.
(d) Except as provided in paragraphs 9 and 10, no option which is an
incentive stock option may be exercised at any time unless the holder thereof is
then an employee of the Corporation, one of its subsidiaries or a parent. For
this purpose, "parent" or "subsidiary" shall include, as under Treasury
Regulations section 1.421-7(h)(3) and (4), Example (3), any corporation that is
a parent or subsidiary of the Corporation during the entire portion of the
requisite period of employment during which it is the employer of the holder.
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(e) The Committee, in its sole discretion, may elect, in lieu of
delivering all or a portion of the shares of Common Stock as to which an option
has been exercised, if the fair market value of the Common Stock exceeds the
exercise price of the option (i) to pay the participant in cash or in shares of
Common Stock, or a combination of cash and Common Stock, an amount equal to the
excess of (A) the Fair Market Value on the exercise date of the shares of Common
Stock as to which such option has been exercised, over (B) the option price, or
(ii) in the case of an option which is a nonqualified option, to defer payment
and to credit the amount of such excess on the Corporation's books for the
account of the optionee and either (x) to treat the amount in such account as if
it had been invested in the manner from time to time determined by the
Committee, with dividends or other income thereon being deemed to have been so
reinvested or (y) for the Corporation's convenience, to contribute the amount
credited to such account to a trust, which may be revocable by the Corporation,
for investment in the manner from time to time determined by the Committee and
set forth in the instrument creating such trust. The Committee's election
pursuant to this subparagraph shall be made by giving written notice of such
election to the participant (or other person exercising the option). Shares of
Common Stock paid pursuant to this subparagraph will be valued at the Fair
Market Value on the exercise date.
(f) Subject to any terms and conditions that the Committee may
determine in respect of the exercise of options involving the surrender of
outstanding awards, upon, but not until, the exercise of an option or portion
thereof in accordance with (i) the Plan, (ii) the option agreement and (iii)
such rules and regulations as may be established by the Committee, the holder
thereof shall have the rights of a shareholder with respect to the shares issued
as a result of such exercise.
(g) The Corporation may make loans to such option holders as the
Committee, in its discretion, may determine (including a holder who is a
director or officer of the Corporation) in connection with the exercise of
options granted under the Plan; provided, however, that the Committee shall not
authorize the making of any loan where the possession of such discretion or the
making of such loan would result in a "modification" (as defined in section 424
of the Code) of any incentive stock option. Such loans shall be subject to the
following terms and conditions and such other terms and conditions as the
Committee shall determine not inconsistent with the Plan. Such loans shall bear
interest at such rates as the Committee shall determine from time to time, which
rates may be below then current market rates (except in the case of incentive
stock options). In no event may any such loan exceed the fair market value, at
the date of exercise, of the shares covered by the option, or portion thereof,
exercised by the holder. No loan shall have an initial term exceeding 5 years,
but any such loan may be renewable at the discretion of the Committee. When a
loan shall have been made, shares of Common Stock having a fair market value at
least equal to the principal amount of the loan shall be pledged by the holder
to the Corporation as security for payment of the unpaid balance of the loan.
Every loan shall comply with all applicable laws, regulations and rules of the
Board of Governors of the Federal Reserve System and any other governmental
agency having jurisdiction.
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8. Non-Transferability of Options
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Options granted under the Plan shall not be transferable otherwise than by
will or the laws of descent and distribution. Options may be exercised during
the lifetime of the participant only by the participant or by the participant's
guardian or legal representative (unless such exercise would disqualify an
option as an incentive stock option).
9. Termination of Employment
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(a) If the employment of an employee to whom an option has been granted
under the Plan shall be terminated for any reason other than the death or "total
disability" (as defined in paragraph 10) of an employee, then such option shall,
unless otherwise provided by the Committee, terminate on the date of termination
of employment; provided, however, that in the case of an employee whose
termination results from retirement from active employment at or after age 65,
options may be exercised within 3 months after such termination, but in no case
later than the date on which the option, right or limited right terminates.
(b) Awards granted under the Plan shall not be affected by any change
of duties or position so long as the holder continues to be an employee of the
Corporation or any of its subsidiaries or any parent. Any option agreement, or
any rules and regulations relating to the Plan, may contain such provisions as
the Committee shall approve with reference to the determination of the date
employment terminates and the effect of leaves of absence. Any such rules and
regulations with reference to any option agreement shall be consistent with the
provisions of the Code and any applicable rules and regulations thereunder.
Nothing in the Plan or in any award granted pursuant to the Plan shall confer
upon any employee any right to continue in the employ of the Corporation or any
of its subsidiaries or a parent or interfere in any way with the right of the
Corporation or any such subsidiary or parent to terminate such employment at any
time.
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(c) Notwithstanding anything else in the Plan to the contrary, if the
corporation employing an individual to whom an option has been granted under the
Plan ceases to be a subsidiary or parent of the Corporation, then the Committee
may provide that service with such employer or its direct or indirect parents or
subsidiaries in any capacity shall be considered employment with the Corporation
for purposes of the Plan.
10. Death or Total Disability of Employee
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If an employee to whom an option has been granted under the Plan shall die
or suffer a "total disability" while employed by the Corporation, one of its
subsidiaries or a parent, such option may be exercised, to the extent that the
employee was entitled to do so at the termination of employment (including by
reason of death or total disability), as set forth herein or in the applicable
option agreement by the employee, the legal guardian of the employee (unless
such exercise would disqualify an option as an incentive stock option), a
legatee or legatees of the employee under the employee's last will, or by the
employee's personal representatives or distributees, whichever is applicable, at
any time within 3 months after the date of the employee's death or total
disability, but in no case later than the date on which the option terminates.
For purposes hereof, "total disability" is defined as a condition which
permits the employee to receive full benefits under the Corporation's long-term
disability plan. If employee is not eligible to participate in such plan or no
such plan is then maintained, "total disability" means any physical or mental
condition which renders the employee unable to perform his or her duties to the
satisfaction of the Committee and which condition may be expected to continue
for more than 6 months in the opinion of a physician selected by the Committee.
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11. Awards to Nonemployees
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Any nonemployee of the Corporation who receives an award under the Plan
shall be subject to such constraints with respect to exercisability of awards
and forfeiture of awards as the Committee, in its sole discretion, may
prescribe.
12. Adjustment upon Changes in Capitalization, etc.
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Notwithstanding any other provision of the Plan, the Committee may at any
time make or provide for such adjustments to the Plan, to the number and class
of shares available thereunder or to any outstanding options as it shall deem
appropriate to prevent dilution or enlargement of rights, including adjustments
in the event of distributions to holders of Common Stock other than a normal
cash dividend, changes in the outstanding Common Stock by reason of stock
dividends, split-ups, recapitalizations, mergers, consolidations, combinations
or exchanges of shares, separations, reorganizations, liquidations and the like.
In the event of any offer to holders of Common Stock generally relating to the
acquisition of their shares, the Committee may make such adjustment as it deems
equitable in respect of outstanding options including in the Committee's
discretion, revision of outstanding options so that they may be exercisable for
or payable in the consideration payable in the acquisition transaction. No
adjustment shall be made in respect of an incentive stock option if such
adjustment would disqualify such option as an incentive stock option under
section 422 of the Code and the Treasury Regulations thereunder. No adjustment
shall be made in the minimum number of shares with respect to which an option
may be exercised at any time. Any fractional shares resulting from such
adjustments to options shall be eliminated.
13. Effective Date
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The Plan shall be effective as of the date of adoption by the Board of
Directors of the Corporation. The Committee may, in its discretion, grant
awards under the Plan, the grant, exercise or payment of which shall be
expressly subject to the condition that, to the extent required at the time of
grant, exercise or payment, any requisite approval or consent of any
governmental authority of any kind having jurisdiction over awards granted under
the Plan be obtained.
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14. Termination and Amendment
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The Board of Directors of the Corporation may suspend, terminate, modify or
amend the Plan, provided that any amendment that would increase the aggregate
number of shares that may be issued under the Plan, materially increase the
benefits accruing to participants under the Plan, or materially modify the
requirements as to eligibility for participation in the Plan shall be subject to
applicable law or any other governing rules or regulations, except that any such
increase or modification that may result from adjustments authorized by
paragraph 12 does not require such approval. If the Plan is terminated, the
terms of the Plan shall, notwithstanding such termination, continue to apply to
awards granted prior to such termination. In addition, no suspension,
termination, modification or amendment of the Plan may, without the consent of
the participant to whom an award shall theretofore have been granted, adversely
affect the rights of such participant under such award.
15. Written Agreements
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Each award of options shall be evidenced by a written agreement, executed
by the participant and the Corporation, which shall contain such restrictions,
terms and conditions as the Committee may require.
16. Effect on Other Stock Plans
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The adoption of the Plan shall have no effect on awards made or to be made
pursuant to other stock plans covering employees or nonemployees of the
Corporation, its subsidiaries or parent, or any predecessors or successors
thereto.
17. Governing Law
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The Plan and any award granted thereunder shall be governed by, and
interpreted according to the laws of the State of Delaware.
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