<PAGE>
As filed with the Securities and Exchange Commission on April 24, 1997
Registration No. 333- ____
----------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
----------
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
----------
BEV-TYME, INC.
(Exact name of registrant as specified in its charter)
Delaware 36-3769323
(State or other juris- (I.R.S. Employer
diction of organization) Identification No.)
134 Morgan Avenue, Brooklyn, NY 11237
(Address of Principal Executive Offices) (Zip Code)
STOCK OPTION AGREEMENTS DATED AUGUST 9, 1996 TO PURCHASE AN AGGREGATE OF
630,000 SHARES OF SERIES C CONVERTIBLE PREFERRED STOCK
AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE CONVERSION THEREOF
AND OPTIONS TO PURCHASE AN AGGREGATE OF 700,000 SHARES OF COMMON STOCK
(Full title of the plan)
Robert Sipper
President
Bev-Tyme, Inc.
134 Morgan Avenue
Brooklyn, NY 11237
(Name and address of agent for service)
(718) 894-4300
(Telephone number, including area code,
of agent for service)
continued overleaf
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Proposed
Proposed maximum
Title of Amount maximum aggregate Amount of
securities to be offering price offering registration
to be registered registered(1) per Share(2) price(2) fee
- ---------------- ------------- ------------ -------- ------------
<S> <C> <C> <C> <C>
Series C Convertible 630,000 $ 1.00 $ 630,000 $ 190.89
Preferred Stock, par value
$.0001 per share
Common Stock, par value 700,000 $ .25 $ 175,000 $ 53.03
$.0001 per share --------- ------ --------- ---------
TOTAL 1,330,000 $ 805,000 $ 243.92
</TABLE>
- ----------
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933, as
amended ("Securities Act"), this registration statement also covers an
indeterminate number of shares as may be required by reason of any stock
dividend, recapitalization, stock split, reorganization, merger,
consolidation, combination or exchange of shares or other similar change
affecting the stock.
(2) The proposed maximum offering price per share is based upon the designated
exercise prices as stated in the appropriate Stock Option Agreements under
which the options were granted.
2
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
Item 2. Registrant Information and Employee Plan Annual Information
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents or portions thereof, as filed with the
Securities and Exchange Commission by Bev-Tyme, Inc., a Delaware corporation
(the "Corporation"), are incorporated herein by reference:
(1) Annual Report on Form 10-KSB for the year ended December 31, 1996.
(2) Quarterly Report on Form 10-QSB for the period ended September 30,
1996.
(3) Quarterly Report on Form 10-QSB for the period ended June 30, 1996.
(4) Quarterly Report on Form 10-QSB for the period ended March 31, 1996.
(5) The description of the Series C Convertible Preferred Stock, par value
$.0001 per share ("Series C Preferred Stock"), and the Common Stock, par value
$.0001 per share ("Common Stock") of the Corporation contained in the
Corporation's registration statement filed under Section 12 of the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
All documents filed by the Corporation pursuant to Section 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934, as amended ("Exchange Act"),
subsequent to the effective date of this Registration Statement and prior to the
filing of a post-effective amendment which indicate that all securities offered
have been sold or which registers all securities then remaining unsold, shall be
deemed to be incorporated by reference in the Registration Statement and to be
part thereof from the date of filing such documents. Any statement contained in
a document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this registration
statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this registration statement.
3
<PAGE>
The Company will provide without charge to each person to whom this
Prospectus is delivered, on the request of any such person, a copy of any or all
of the foregoing documents incorporated herein by reference (other than exhibits
to such documents). Written or telephone requests should be directed to Robert
Sipper, President and Chief Executive Officer, BEV-TYME, Inc., 134 Morgan
Avenue, Brooklyn, NY 11237, telephone (718) 894-4300.
Item 4. Description of Securities
Not Applicable
Item 5. Interests of Names Experts and Counsel
Not Applicable
Item 6. Indemnification of Directors and Officers
Article Ninth of the Restated Certificate of Incorporation of the Company
as filed with the office of Secretary of State of the State of Delaware on May
11, 1995 ("Certificate of Incorporation") provides for indemnification of
personal liability of the Directors of the Corporation to the fullest extent
permitted by paragraph "7" of Subsection (b) of Section 102 of the General
Corporation Law of the State of Delaware.
Article X of the By-Laws of the Company ("By-Laws"), which is set forth
below in its entirety, provides for indemnification of officers, directors,
employees and agents substantially to the extent permitted under the Delaware
General Corporation Law.
Article X of the By-Laws provides as follows:
"ARTICLE X"
Section 10.1. Indemnification. The Corporation shall (a) indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is
or was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement or such action or suit, (b) indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Corporation), by reason of the fact that he is or was a director or
officer of the Corporation, or served at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with any such action, suit or proceeding, in each case to
the fullest extent permissible under subsections (a) through (f) of Section 145
of General Corporation Law of the State of Delaware of the indemnification
provisions of any successor statute and (c) advance reasonable and necessary
expenses in connection with such actions or suits, and not seek reimbursement of
such
4
<PAGE>
expenses unless there is a specific determination that the officer or director
is not entitled to such indemnification. The foregoing right of indemnification
shall in no way be exclusive of any other rights of indemnification to which any
such persons may be entitled, under any by-law, agreement, vote of shareholders
or disinterest directors or otherwise, and shall inure to the benefit of the
heirs, executors and administrators of such a person.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
The following is a complete list of exhibits filed as a part of this
registration statement:
Exhibit No. Document
- ----------- --------
4.1 Restated Certificate of Incorporation of the Corporation
(Incorporated by reference to Corporation's Registration
Statement on Form SB-2 Registration No. 33-87458)
4.2 By-Laws of the Corporation (Incorporated by reference to
Corporation's Registration Statement on Form SB-2
Registration No. 33-87458).
4.18 Stock Option Agreement dated as of August 9, 1996
between the Corporation and Robert J. Sipper.
4.19 Stock Option Agreement dated as of August 9, 1996
between the Corporation and William Swedelson.
4.20 Stock Option Agreement dated as of August 9, 1996
between the Corporation and Bruce Logan.
4.21 Stock Option Agreement dated as of August 9, 1996
between the Corporation and Hartley Bernstein.
4.22 Stock Option Agreement dated as of August 9, 1996
between the Corporation and Hyacinth Steer.
4.23 Stock Option Agreement dated as of August 9, 1996
between the Corporation and Robert Forst.
4.24 Stock Option Agreement dated as of August 9, 1996
between the Corporation and Alfred Sipper.
5.0 Opinion of Bernstein & Wasserman, LLP.
24.1 Consent of Mortenson & Associates, P.C.
Item 9. Undertakings
A. The undersigned registrant hereby undertakes:
5
<PAGE>
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement;
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, the paragraphs (1)(i) and (1)(ii) do not apply if the
information is required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated
by reference in the registration statement;
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time be deemed to be the initial bona fide
offering thereof; and;
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions described in item 6, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable, In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding, is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
6
<PAGE>
SIGNATURES
Pursuant to the requirement of the Securities Act of 1933, as amended, the
Registrant, certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Brooklyn, New York, on the 24th day of April, 1997.
BEV-TYME, INC.
By: /s/ Robert Sipper
----------------------------------
Robert Sipper
President, Chief Executive Officer
and Director
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Robert Sipper his true and lawful
attorney-in-fact and agent, for him and his name, place and stead, in any and
all capacities, to sign any and all amendments to this registration statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, and to make
any and all state securities law or blue sky filings, granting unto said
attorney-in-fact and agent, to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully for all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his substitute, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement or Amendments thereto has been signed below by the
following persons in the capacities and on the dates indicated.
Signature Title Date
/s/ Robert Sipper President, Chief Executive April 24, 1997
- --------------------------- Officer and Director
Robert Sipper
/s/ Alfred Sipper Director April 24, 1997
- ----------------------------
Alfred Sipper
/s/ Bruce Logan Director April 24, 1997
- ----------------------------
Bruce Logan
/s/ Robert Forst Vice President, April 24, 1997
- ---------------------------- Chief Financial Officer,
Robert Forst Principal Accounting
Officer and Secretary
7
<PAGE>
BEV-TYME, INC.
EXHIBITS
TO
REGISTRATION STATEMENT ON FORM S-8
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Document
- ----------- --------
4.1 Restated Certificate of Incorporation of the Corporation
(Incorporated by reference to Corporation's Registration
Statement on Form SB-2 Registration No. 33-87458)
4.2 By-Laws of the Corporation (Incorporated by reference to
Corporation's Registration Statement on Form SB-2
Registration No. 33-87458).
4.18 Stock Option Agreement dated as of August 9, 1996
between the Corporation and Robert J. Sipper.
4.19 Stock Option Agreement dated as of August 9, 1996
between the Corporation and William Swedelson.
4.20 Stock Option Agreement dated as of August 9, 1996
between the Corporation and Bruce Logan.
4.21 Stock Option Agreement dated as of August 9, 1996
between the Corporation and Hartley Bernstein.
4.22 Stock Option Agreement dated as of August 9, 1996
between the Corporation and Hyacinth Steer.
4.23 Stock Option Agreement dated as of August 9, 1996
between the Corporation and Robert Forst.
4.24 Stock Option Agreement dated as of August 9, 1996
between the Corporation and Alfred Sipper.
5.0 Opinion of Bernstein & Wasserman, LLP.
24.1 Consent of Mortenson & Associates, P.C.
<PAGE>
EXHIBIT 4.18
<PAGE>
STOCK OPTION AGREEMENT
THIS AGREEMENT dated as of the 9th day of August, 1996, (the "Grant Date")
is made and entered into by and between Bev-Tyme, Inc., a Delaware corporation
with its principal offices located at 134 Morgan Avenue, Brooklyn, New York (the
"Company"), and Robert Sipper (the "Optionee").
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company has approved the granting to
the Optionee of options to purchase certain shares of the Company's Series C
Convertible Preferred Stock, par value $.0001 per share (" Series C Preferred
Stock"), and certain shares of the Company's Common Stock, par value $.0001 per
share ("Common Stock"); and
WHEREAS, the Optionee desires to accept the grant of such options, subject
to the terms and conditions of this Agreement.
NOW, THEREFORE, the Company and the Optionee hereby agree as follows:
Section 1. Grant of Options. Subject to the provisions of this Agreement,
the Company hereby grants to the Optionee options (the "Options") to purchase
from the Company at any time during the period commencing on the date hereof
through and including August 9, 2001 (the "Termination Date") (unless terminated
prior to such date pursuant to Section 2 below), Ninety Thousand (90,000) shares
of Series C Preferred Stock (the "Preferred Option Shares") at an exercise price
of $1.00 per share (the "Preferred Exercise Price"), and One Hundred Thousand
(100,000) shares of Common Stock (the "Common Option Shares") at an exercise
price of $.25 per share (the "Common Exercise Price").
Section 2. Termination of Options. To the extent not exercised, the Options
shall
<PAGE>
terminate either on the Termination Date or, in the event that the Optionholder
ceases to be employed by the Company, for any reason whatsoever, then this
Option Agreement shall terminate 90 days following the date of such termination,
or resignation, as the case may be, and the Optionholder shall have no further
rights under this Option Agreement.
Section 3. Corporate Events. In the event of a proposed liquidation of the
Company, a proposed sale of all or substantially all of its assets or its Common
Stock, a proposed merger or consolidation, or a proposed separation or
reorganization, the Board of Directors may declare that the Options shall
terminate as of a date to be fixed by the Board of Directors; provided however,
that not less than thirty (30) days preceding the date of such termination, the
Optionee may exercise the Options in whole or in part. However, nothing set
forth herein shall (i) extend the term set for purchasing the Option Shares or
(ii) give the Optionee any rights or privileges as a stockholder of the Company
prior to Optionee's exercise of any of the Option Shares.
Section 4. Exercise of Options. The Options may be exercised in whole or in
part in accordance with the provisions of this Agreement by the Optionee's
tendering the Exercise Price (or a proportionate part thereof if the Options are
partially exercised) in immediately available funds or other consideration
reasonably acceptable to the Board of Directors of the Company. The Company
shall cooperate to the extent reasonably possible with the Optionee in an
exercise pursuant to which all or part of the Optionee Shares will be sold
simultaneously with the exercise of the Options with the broker-dealer
participating in such sale being irrevocably instructed to remit the proceeds
from the exercise of the Options to the Company upon settlement of the sale of
the underlying Option Shares.
The Optionee may exercise part or all of the Options by tender to the
Company of a
2
<PAGE>
written notice of exercise together with advice of the delivery of an order to a
broker to sell part or all of the Option Shares, subject to such exercise notice
and an irrevocable order to such broker to deliver to the Company (or its
transfer agent) sufficient proceeds from the sale of such Option Shares to pay
the exercise price and any withholding taxes. All documentation and procedures
to be followed in connection with such a "cashless exercise" shall be approved
in advance by the Company, which approval shall be expeditiously provided and
not unreasonably withheld.
Section 5. Shares Certificates. Upon receipt of payment in full of the
Exercise Price, and after taking such steps as it deems necessary to satisfy any
withholding tax obligations imposed upon it by any level of government, the
Company will cause one or more stock certificates evidencing the Optionee's
ownership of the Option Shares so purchased by the Optionee to be issued to the
Optionee.
Section 6. Restrictions. The Options and the Option Shares have not been
registered under the Securities Act of 1933, as amended (the "Act"). Optionee
understands that, unless registered with the Securities and Exchange Commission
for sale to the public, all Option Shares acquired upon the exercise of the
Options shall be "restricted securities" as that term is defined in Rule 144
promulgated under the Act. The certificate representing the Option Shares shall
bear an appropriate legend restricting their transfer. Such Option Shares cannot
be sold, transferred, assigned or otherwise hypothecated without registration
under the Act or unless a valid exemption from registration is then available
under applicable federal and state securities laws and the Optionee has
furnished the Company with an opinion of counsel satisfactory in form and
substance to the Company's counsel that such registration is not required.
3
<PAGE>
Section 7. Default of Optionee. Should the Optionee at any time breach any
provision of this Agreement, the Options granted hereunder shall be deemed null
and void. The provision shall be in addition and not in lieu of any other
remedies which the Company may have at law and/or in equity.
Section 8. Share Adjustments. If there is any change in the number of
shares of Common Stock on account of the declaration of stock dividends,
recapitalization resulting in stock splits, or combinations or exchanges of
shares of Common Stock, or otherwise, the number of Option Shares available for
purchase by the exercise of the Options, and the Exercise Price, shall be
proportionately adjusted by the Company.
Section 9. Miscellaneous Provisions.
(a) Notices. Unless otherwise specifically provided herein, all notices to
be given hereunder shall be in writing and sent to the parties by certified
mail, return receipt requested, which shall be addressed to each party's
respective address, as set forth in the first paragraph of this Agreement, or to
such other address as such party shall give to the other party hereto by a
notice given in accordance with this Section and, except as otherwise provided
in this Agreement, shall be effective when deposited in the United States mail
properly addressed and postage prepaid. If such notice is sent other than by the
United States mail, such notice shall be effective when actually received by the
party being noticed.
(b) Assignment. This Agreement and the rights granted hereunder may not be
assigned in whole or in part by Optionee except by will or the laws of descent
and distribution, and the Options are exercisable during Optionee's lifetime
only by the Optionee. This Agreement may be assigned by the Company without the
consent of the Optionee.
(c) Further Assurances. Both parties hereto shall execute and deliver such
other
4
<PAGE>
instruments and do such other acts as may be necessary to carry out the intent
and purposes of this Agreement.
(d) Gender. Whenever the context may require, any pronouns used herein
shall include the corresponding masculine, feminine or neuter forms and the
singular form of nouns and pronouns shall include the plural and vice versa.
(e) Captions. The captions contained in this Agreement are inserted only as
a matter of convenience and in no way define, limit, extend or prescribe the
scope of this Agreement or the intent of any of the provisions hereof.
(f) Completeness and Modification. This Agreement constitutes the entire
understanding between the parties hereto superseding all prior and
contemporaneous agreements or understandings among the parties hereto concerning
the grant of stock options to the Optionee. This Agreement shall not terminated,
except in accordance with its terms, or amended in writing executed by all of
the parties hereto.
(g) Waiver. The waiver of a breach of any term or condition of this
Agreement shall not be deemed to constitute the waiver of any other breach of
the same or any other term or condition.
(h) Severability. The invalidity or enforceability, in whole or in part, of
any covenant, promise or undertaking, or any section, subsection, paragraph,
sentence, clause phrase or word or of any provision of this Agreement shall not
affect the validity or enforceability of the remaining portions thereof.
(i) Construction. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(j) Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the heirs, successors, estate and personal representatives of the
Optionee and upon the successors and assigns of the Company.
5
<PAGE>
(k) Litigation-Attorney' Fees. In connection with any litigation arising
out of the enforcement of this Agreement or for its interpretation, the
prevailing party shall be entitled to recover its costs, including reasonable
attorneys' fees, at the trial and all appellate levels form the other party
hereto, who was an adverse party to such litigation.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year set forth in the first paragraph of this Agreement above.
BEV-TYME, INC.
By: /s/ Robert Sipper
---------------------------
Robert Sipper
President
6
<PAGE>
EXHIBIT 4.19
<PAGE>
STOCK OPTION AGREEMENT
THIS AGREEMENT dated as of the 9th day of August, 1996, (the "Grant Date")
is made and entered into by and between Bev-Tyme, Inc., a Delaware corporation
with its principal offices located at 134 Morgan Avenue, Brooklyn, New York (the
"Company"), and William Swedelson (the "Optionee").
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company has approved the granting to
the Optionee of options to purchase certain shares of the Company's Series C
Convertible Preferred Stock, par value $.0001 per share (" Series C Preferred
Stock"), and certain shares of the Company's Common Stock, par value $.0001 per
share ("Common Stock"); and
WHEREAS, the Optionee desires to accept the grant of such options, subject
to the terms and conditions of this Agreement.
NOW, THEREFORE, the Company and the Optionee hereby agree as follows:
Section 1. Grant of Options. Subject to the provisions of this Agreement,
the Company hereby grants to the Optionee options (the "Options") to purchase
from the Company at any time during the period commencing on the date hereof
through and including August 9, 2001 (the "Termination Date") (unless terminated
prior to such date pursuant to Section 2 below), Ninety Thousand (90,000) shares
of Series C Preferred Stock (the "Preferred Option Shares") at an exercise price
of $1.00 per share (the "Preferred Exercise Price"), and One Hundred Thousand
(100,000) shares of Common Stock (the "Common Option Shares") at an exercise
price of $.25 per share (the "Common Exercise Price").
Section 2. Termination of Options. To the extent not exercised, the Options
shall
<PAGE>
terminate either on the Termination Date or, in the event that the Optionholder
ceases to be employed by the Company, for any reason whatsoever, then this
Option Agreement shall terminate 90 days following the date of such termination,
or resignation, as the case may be, and the Optionholder shall have no further
rights under this Option Agreement.
Section 3. Corporate Events. In the event of a proposed liquidation of the
Company, a proposed sale of all or substantially all of its assets or its Common
Stock, a proposed merger or consolidation, or a proposed separation or
reorganization, the Board of Directors may declare that the Options shall
terminate as of a date to be fixed by the Board of Directors; provided however,
that not less than thirty (30) days preceding the date of such termination, the
Optionee may exercise the Options in whole or in part. However, nothing set
forth herein shall (i) extend the term set for purchasing the Option Shares or
(ii) give the Optionee any rights or privileges as a stockholder of the Company
prior to Optionee's exercise of any of the Option Shares.
Section 4. Exercise of Options. The Options may be exercised in whole or in
part in accordance with the provisions of this Agreement by the Optionee's
tendering the Exercise Price (or a proportionate part thereof if the Options are
partially exercised) in immediately available funds or other consideration
reasonably acceptable to the Board of Directors of the Company. The Company
shall cooperate to the extent reasonably possible with the Optionee in an
exercise pursuant to which all or part of the Optionee Shares will be sold
simultaneously with the exercise of the Options with the broker-dealer
participating in such sale being irrevocably instructed to remit the proceeds
from the exercise of the Options to the Company upon settlement of the sale of
the underlying Option Shares.
The Optionee may exercise part or all of the Options by tender to the
Company of a
2
<PAGE>
written notice of exercise together with advice of the delivery of an order to a
broker to sell part or all of the Option Shares, subject to such exercise notice
and an irrevocable order to such broker to deliver to the Company (or its
transfer agent) sufficient proceeds from the sale of such Option Shares to pay
the exercise price and any withholding taxes. All documentation and procedures
to be followed in connection with such a "cashless exercise" shall be approved
in advance by the Company, which approval shall be expeditiously provided and
not unreasonably withheld.
Section 5. Shares Certificates. Upon receipt of payment in full of the
Exercise Price, and after taking such steps as it deems necessary to satisfy any
withholding tax obligations imposed upon it by any level of government, the
Company will cause one or more stock certificates evidencing the Optionee's
ownership of the Option Shares so purchased by the Optionee to be issued to the
Optionee.
Section 6. Restrictions. The Options and the Option Shares have not been
registered under the Securities Act of 1933, as amended (the "Act"). Optionee
understands that, unless registered with the Securities and Exchange Commission
for sale to the public, all Option Shares acquired upon the exercise of the
Options shall be "restricted securities" as that term is defined in Rule 144
promulgated under the Act. The certificate representing the Option Shares shall
bear an appropriate legend restricting their transfer. Such Option Shares cannot
be sold, transferred, assigned or otherwise hypothecated without registration
under the Act or unless a valid exemption from registration is then available
under applicable federal and state securities laws and the Optionee has
furnished the Company with an opinion of counsel satisfactory in form and
substance to the Company's counsel that such registration is not required.
3
<PAGE>
Section 7. Default of Optionee. Should the Optionee at any time breach any
provision of this Agreement, the Options granted hereunder shall be deemed null
and void. The provision shall be in addition and not in lieu of any other
remedies which the Company may have at law and/or in equity.
Section 8. Share Adjustments. If there is any change in the number of
shares of Common Stock on account of the declaration of stock dividends,
recapitalization resulting in stock splits, or combinations or exchanges of
shares of Common Stock, or otherwise, the number of Option Shares available for
purchase by the exercise of the Options, and the Exercise Price, shall be
proportionately adjusted by the Company.
Section 9. Miscellaneous Provisions.
(a) Notices. Unless otherwise specifically provided herein, all notices to
be given hereunder shall be in writing and sent to the parties by certified
mail, return receipt requested, which shall be addressed to each party's
respective address, as set forth in the first paragraph of this Agreement, or to
such other address as such party shall give to the other party hereto by a
notice given in accordance with this Section and, except as otherwise provided
in this Agreement, shall be effective when deposited in the United States mail
properly addressed and postage prepaid. If such notice is sent other than by the
United States mail, such notice shall be effective when actually received by the
party being noticed.
(b) Assignment. This Agreement and the rights granted hereunder may not be
assigned in whole or in part by Optionee except by will or the laws of descent
and distribution, and the Options are exercisable during Optionee's lifetime
only by the Optionee. This Agreement may be assigned by the Company without the
consent of the Optionee.
(c) Further Assurances. Both parties hereto shall execute and deliver such
other
4
<PAGE>
instruments and do such other acts as may be necessary to carry out the intent
and purposes of this Agreement.
(d) Gender. Whenever the context may require, any pronouns used herein
shall include the corresponding masculine, feminine or neuter forms and the
singular form of nouns and pronouns shall include the plural and vice versa.
(e) Captions. The captions contained in this Agreement are inserted only as
a matter of convenience and in no way define, limit, extend or prescribe the
scope of this Agreement or the intent of any of the provisions hereof.
(f) Completeness and Modification. This Agreement constitutes the entire
understanding between the parties hereto superseding all prior and
contemporaneous agreements or understandings among the parties hereto concerning
the grant of stock options to the Optionee. This Agreement shall not terminated,
except in accordance with its terms, or amended in writing executed by all of
the parties hereto.
(g) Waiver. The waiver of a breach of any term or condition of this
Agreement shall not be deemed to constitute the waiver of any other breach of
the same or any other term or condition.
(h) Severability. The invalidity or enforceability, in whole or in part, of
any covenant, promise or undertaking, or any section, subsection, paragraph,
sentence, clause phrase or word or of any provision of this Agreement shall not
affect the validity or enforceability of the remaining portions thereof.
(i) Construction. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(j) Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the heirs, successors, estate and personal representatives of the
Optionee and upon the successors and assigns of the Company.
5
<PAGE>
(k) Litigation-Attorney' Fees. In connection with any litigation arising
out of the enforcement of this Agreement or for its interpretation, the
prevailing party shall be entitled to recover its costs, including reasonable
attorneys' fees, at the trial and all appellate levels form the other party
hereto, who was an adverse party to such litigation.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year set forth in the first paragraph of this Agreement above.
BEV-TYME, INC.
By: /s/ Robert Sipper
---------------------------
Robert Sipper
President
6
<PAGE>
EXHIBIT 4.20
<PAGE>
STOCK OPTION AGREEMENT
THIS AGREEMENT dated as of the 9th day of August, 1996, (the "Grant Date")
is made and entered into by and between Bev-Tyme, Inc., a Delaware corporation
with its principal offices located at 134 Morgan Avenue, Brooklyn, New York (the
"Company"), and Bruce Logan (the "Optionee").
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company has approved the granting to
the Optionee of options to purchase certain shares of the Company's Series C
Convertible Preferred Stock, par value $.0001 per share (" Series C Preferred
Stock"), and certain shares of the Company's Common Stock, par value $.0001 per
share ("Common Stock"); and
WHEREAS, the Optionee desires to accept the grant of such options, subject
to the terms and conditions of this Agreement.
NOW, THEREFORE, the Company and the Optionee hereby agree as follows:
Section 1. Grant of Options. Subject to the provisions of this Agreement,
the Company hereby grants to the Optionee options (the "Options") to purchase
from the Company at any time during the period commencing on the date hereof
through and including August 9, 2001 (the "Termination Date") (unless terminated
prior to such date pursuant to Section 2 below), Ninety Thousand (90,000) shares
of Series C Preferred Stock (the "Preferred Option Shares") at an exercise price
of $1.00 per share (the "Preferred Exercise Price"), and One Hundred Thousand
(100,000) shares of Common Stock (the "Common Option Shares") at an exercise
price of $.25 per share (the "Common Exercise Price").
Section 2. Termination of Options. To the extent not exercised, the Options
shall
<PAGE>
terminate either on the Termination Date or, in the event that the Optionholder
ceases to be employed by the Company, for any reason whatsoever, then this
Option Agreement shall terminate 90 days following the date of such termination,
or resignation, as the case may be, and the Optionholder shall have no further
rights under this Option Agreement.
Section 3. Corporate Events. In the event of a proposed liquidation of the
Company, a proposed sale of all or substantially all of its assets or its Common
Stock, a proposed merger or consolidation, or a proposed separation or
reorganization, the Board of Directors may declare that the Options shall
terminate as of a date to be fixed by the Board of Directors; provided however,
that not less than thirty (30) days preceding the date of such termination, the
Optionee may exercise the Options in whole or in part. However, nothing set
forth herein shall (i) extend the term set for purchasing the Option Shares or
(ii) give the Optionee any rights or privileges as a stockholder of the Company
prior to Optionee's exercise of any of the Option Shares.
Section 4. Exercise of Options. The Options may be exercised in whole or in
part in accordance with the provisions of this Agreement by the Optionee's
tendering the Exercise Price (or a proportionate part thereof if the Options are
partially exercised) in immediately available funds or other consideration
reasonably acceptable to the Board of Directors of the Company. The Company
shall cooperate to the extent reasonably possible with the Optionee in an
exercise pursuant to which all or part of the Optionee Shares will be sold
simultaneously with the exercise of the Options with the broker-dealer
participating in such sale being irrevocably instructed to remit the proceeds
from the exercise of the Options to the Company upon settlement of the sale of
the underlying Option Shares.
The Optionee may exercise part or all of the Options by tender to the
Company of a
2
<PAGE>
written notice of exercise together with advice of the delivery of an order to a
broker to sell part or all of the Option Shares, subject to such exercise notice
and an irrevocable order to such broker to deliver to the Company (or its
transfer agent) sufficient proceeds from the sale of such Option Shares to pay
the exercise price and any withholding taxes. All documentation and procedures
to be followed in connection with such a "cashless exercise" shall be approved
in advance by the Company, which approval shall be expeditiously provided and
not unreasonably withheld.
Section 5. Shares Certificates. Upon receipt of payment in full of the
Exercise Price, and after taking such steps as it deems necessary to satisfy any
withholding tax obligations imposed upon it by any level of government, the
Company will cause one or more stock certificates evidencing the Optionee's
ownership of the Option Shares so purchased by the Optionee to be issued to the
Optionee.
Section 6. Restrictions. The Options and the Option Shares have not been
registered under the Securities Act of 1933, as amended (the "Act"). Optionee
understands that, unless registered with the Securities and Exchange Commission
for sale to the public, all Option Shares acquired upon the exercise of the
Options shall be "restricted securities" as that term is defined in Rule 144
promulgated under the Act. The certificate representing the Option Shares shall
bear an appropriate legend restricting their transfer. Such Option Shares cannot
be sold, transferred, assigned or otherwise hypothecated without registration
under the Act or unless a valid exemption from registration is then available
under applicable federal and state securities laws and the Optionee has
furnished the Company with an opinion of counsel satisfactory in form and
substance to the Company's counsel that such registration is not required.
3
<PAGE>
Section 7. Default of Optionee. Should the Optionee at any time breach any
provision of this Agreement, the Options granted hereunder shall be deemed null
and void. The provision shall be in addition and not in lieu of any other
remedies which the Company may have at law and/or in equity.
Section 8. Share Adjustments. If there is any change in the number of
shares of Common Stock on account of the declaration of stock dividends,
recapitalization resulting in stock splits, or combinations or exchanges of
shares of Common Stock, or otherwise, the number of Option Shares available for
purchase by the exercise of the Options, and the Exercise Price, shall be
proportionately adjusted by the Company.
Section 9. Miscellaneous Provisions.
(a) Notices. Unless otherwise specifically provided herein, all notices to
be given hereunder shall be in writing and sent to the parties by certified
mail, return receipt requested, which shall be addressed to each party's
respective address, as set forth in the first paragraph of this Agreement, or to
such other address as such party shall give to the other party hereto by a
notice given in accordance with this Section and, except as otherwise provided
in this Agreement, shall be effective when deposited in the United States mail
properly addressed and postage prepaid. If such notice is sent other than by the
United States mail, such notice shall be effective when actually received by the
party being noticed.
(b) Assignment. This Agreement and the rights granted hereunder may not be
assigned in whole or in part by Optionee except by will or the laws of descent
and distribution, and the Options are exercisable during Optionee's lifetime
only by the Optionee. This Agreement may be assigned by the Company without the
consent of the Optionee.
(c) Further Assurances. Both parties hereto shall execute and deliver such
other
4
<PAGE>
instruments and do such other acts as may be necessary to carry out the intent
and purposes of this Agreement.
(d) Gender. Whenever the context may require, any pronouns used herein
shall include the corresponding masculine, feminine or neuter forms and the
singular form of nouns and pronouns shall include the plural and vice versa.
(e) Captions. The captions contained in this Agreement are inserted only as
a matter of convenience and in no way define, limit, extend or prescribe the
scope of this Agreement or the intent of any of the provisions hereof.
(f) Completeness and Modification. This Agreement constitutes the entire
understanding between the parties hereto superseding all prior and
contemporaneous agreements or understandings among the parties hereto concerning
the grant of stock options to the Optionee. This Agreement shall not terminated,
except in accordance with its terms, or amended in writing executed by all of
the parties hereto.
(g) Waiver. The waiver of a breach of any term or condition of this
Agreement shall not be deemed to constitute the waiver of any other breach of
the same or any other term or condition.
(h) Severability. The invalidity or enforceability, in whole or in part, of
any covenant, promise or undertaking, or any section, subsection, paragraph,
sentence, clause phrase or word or of any provision of this Agreement shall not
affect the validity or enforceability of the remaining portions thereof.
(i) Construction. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(j) Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the heirs, successors, estate and personal representatives of the
Optionee and upon the successors and assigns of the Company.
5
<PAGE>
(k) Litigation-Attorney' Fees. In connection with any litigation arising
out of the enforcement of this Agreement or for its interpretation, the
prevailing party shall be entitled to recover its costs, including reasonable
attorneys' fees, at the trial and all appellate levels form the other party
hereto, who was an adverse party to such litigation.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year set forth in the first paragraph of this Agreement above.
BEV-TYME, INC.
By: /s/ Robert Sipper
----------------------------
Robert Sipper
President
6
<PAGE>
EXHIBIT 4.21
<PAGE>
STOCK OPTION AGREEMENT
THIS AGREEMENT dated as of the 9th day of August, 1996, (the "Grant Date")
is made and entered into by and between Bev-Tyme, Inc., a Delaware corporation
with its principal offices located at 134 Morgan Avenue, Brooklyn, New York (the
"Company"), and Hartley Bernstein (the "Optionee").
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company has approved the granting to
the Optionee of options to purchase certain shares of the Company's Series C
Convertible Preferred Stock, par value $.0001 per share (" Series C Preferred
Stock"), and certain shares of the Company's Common Stock, par value $.0001 per
share ("Common Stock"); and
WHEREAS, the Optionee desires to accept the grant of such options, subject
to the terms and conditions of this Agreement.
NOW, THEREFORE, the Company and the Optionee hereby agree as follows:
Section 1. Grant of Options. Subject to the provisions of this Agreement,
the Company hereby grants to the Optionee options (the "Options") to purchase
from the Company at any time during the period commencing on the date hereof
through and including August 9, 2001 (the "Termination Date") (unless terminated
prior to such date pursuant to Section 2 below), Ninety Thousand (90,000) shares
of Series C Preferred Stock (the "Preferred Option Shares") at an exercise price
of $1.00 per share (the "Preferred Exercise Price"), and One Hundred Thousand
(100,000) shares of Common Stock (the "Common Option Shares") at an exercise
price of $.25 per share (the "Common Exercise Price").
Section 2. Termination of Options. To the extent not exercised, the Options
shall
<PAGE>
terminate either on the Termination Date or, in the event that the Optionholder
ceases to be employed by the Company, for any reason whatsoever, then this
Option Agreement shall terminate 90 days following the date of such termination,
or resignation, as the case may be, and the Optionholder shall have no further
rights under this Option Agreement.
Section 3. Corporate Events. In the event of a proposed liquidation of the
Company, a proposed sale of all or substantially all of its assets or its Common
Stock, a proposed merger or consolidation, or a proposed separation or
reorganization, the Board of Directors may declare that the Options shall
terminate as of a date to be fixed by the Board of Directors; provided however,
that not less than thirty (30) days preceding the date of such termination, the
Optionee may exercise the Options in whole or in part. However, nothing set
forth herein shall (i) extend the term set for purchasing the Option Shares or
(ii) give the Optionee any rights or privileges as a stockholder of the Company
prior to Optionee's exercise of any of the Option Shares.
Section 4. Exercise of Options. The Options may be exercised in whole or in
part in accordance with the provisions of this Agreement by the Optionee's
tendering the Exercise Price (or a proportionate part thereof if the Options are
partially exercised) in immediately available funds or other consideration
reasonably acceptable to the Board of Directors of the Company. The Company
shall cooperate to the extent reasonably possible with the Optionee in an
exercise pursuant to which all or part of the Optionee Shares will be sold
simultaneously with the exercise of the Options with the broker-dealer
participating in such sale being irrevocably instructed to remit the proceeds
from the exercise of the Options to the Company upon settlement of the sale of
the underlying Option Shares.
The Optionee may exercise part or all of the Options by tender to the
Company of a
2
<PAGE>
written notice of exercise together with advice of the delivery of an order to a
broker to sell part or all of the Option Shares, subject to such exercise notice
and an irrevocable order to such broker to deliver to the Company (or its
transfer agent) sufficient proceeds from the sale of such Option Shares to pay
the exercise price and any withholding taxes. All documentation and procedures
to be followed in connection with such a "cashless exercise" shall be approved
in advance by the Company, which approval shall be expeditiously provided and
not unreasonably withheld.
Section 5. Shares Certificates. Upon receipt of payment in full of the
Exercise Price, and after taking such steps as it deems necessary to satisfy any
withholding tax obligations imposed upon it by any level of government, the
Company will cause one or more stock certificates evidencing the Optionee's
ownership of the Option Shares so purchased by the Optionee to be issued to the
Optionee.
Section 6. Restrictions. The Options and the Option Shares have not been
registered under the Securities Act of 1933, as amended (the "Act"). Optionee
understands that, unless registered with the Securities and Exchange Commission
for sale to the public, all Option Shares acquired upon the exercise of the
Options shall be "restricted securities" as that term is defined in Rule 144
promulgated under the Act. The certificate representing the Option Shares shall
bear an appropriate legend restricting their transfer. Such Option Shares cannot
be sold, transferred, assigned or otherwise hypothecated without registration
under the Act or unless a valid exemption from registration is then available
under applicable federal and state securities laws and the Optionee has
furnished the Company with an opinion of counsel satisfactory in form and
substance to the Company's counsel that such registration is not required.
3
<PAGE>
Section 7. Default of Optionee. Should the Optionee at any time breach any
provision of this Agreement, the Options granted hereunder shall be deemed null
and void. The provision shall be in addition and not in lieu of any other
remedies which the Company may have at law and/or in equity.
Section 8. Share Adjustments. If there is any change in the number of
shares of Common Stock on account of the declaration of stock dividends,
recapitalization resulting in stock splits, or combinations or exchanges of
shares of Common Stock, or otherwise, the number of Option Shares available for
purchase by the exercise of the Options, and the Exercise Price, shall be
proportionately adjusted by the Company.
Section 9. Miscellaneous Provisions.
(a) Notices. Unless otherwise specifically provided herein, all notices to
be given hereunder shall be in writing and sent to the parties by certified
mail, return receipt requested, which shall be addressed to each party's
respective address, as set forth in the first paragraph of this Agreement, or to
such other address as such party shall give to the other party hereto by a
notice given in accordance with this Section and, except as otherwise provided
in this Agreement, shall be effective when deposited in the United States mail
properly addressed and postage prepaid. If such notice is sent other than by the
United States mail, such notice shall be effective when actually received by the
party being noticed.
(b) Assignment. This Agreement and the rights granted hereunder may not be
assigned in whole or in part by Optionee except by will or the laws of descent
and distribution, and the Options are exercisable during Optionee's lifetime
only by the Optionee. This Agreement may be assigned by the Company without the
consent of the Optionee.
(c) Further Assurances. Both parties hereto shall execute and deliver such
other
4
<PAGE>
instruments and do such other acts as may be necessary to carry out the intent
and purposes of this Agreement.
(d) Gender. Whenever the context may require, any pronouns used herein
shall include the corresponding masculine, feminine or neuter forms and the
singular form of nouns and pronouns shall include the plural and vice versa.
(e) Captions. The captions contained in this Agreement are inserted only as
a matter of convenience and in no way define, limit, extend or prescribe the
scope of this Agreement or the intent of any of the provisions hereof.
(f) Completeness and Modification. This Agreement constitutes the entire
understanding between the parties hereto superseding all prior and
contemporaneous agreements or understandings among the parties hereto concerning
the grant of stock options to the Optionee. This Agreement shall not terminated,
except in accordance with its terms, or amended in writing executed by all of
the parties hereto.
(g) Waiver. The waiver of a breach of any term or condition of this
Agreement shall not be deemed to constitute the waiver of any other breach of
the same or any other term or condition.
(h) Severability. The invalidity or enforceability, in whole or in part, of
any covenant, promise or undertaking, or any section, subsection, paragraph,
sentence, clause phrase or word or of any provision of this Agreement shall not
affect the validity or enforceability of the remaining portions thereof.
(i) Construction. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(j) Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the heirs, successors, estate and personal representatives of the
Optionee and upon the successors and assigns of the Company.
5
<PAGE>
(k) Litigation-Attorney' Fees. In connection with any litigation arising
out of the enforcement of this Agreement or for its interpretation, the
prevailing party shall be entitled to recover its costs, including reasonable
attorneys' fees, at the trial and all appellate levels form the other party
hereto, who was an adverse party to such litigation.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year set forth in the first paragraph of this Agreement above.
BEV-TYME, INC.
By: /s/ Robert Sipper
----------------------------
Robert Sipper
President
6
<PAGE>
EXHIBIT 4.22
<PAGE>
STOCK OPTION AGREEMENT
THIS AGREEMENT dated as of the 9th day of August, 1996, (the "Grant Date")
is made and entered into by and between Bev-Tyme, Inc., a Delaware corporation
with its principal offices located at 134 Morgan Avenue, Brooklyn, New York (the
"Company"), and Hyacinth Steer (the "Optionee").
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company has approved the granting to
the Optionee of options to purchase certain shares of the Company's Series C
Convertible Preferred Stock, par value $.0001 per share (" Series C Preferred
Stock"), and certain shares of the Company's Common Stock, par value $.0001 per
share ("Common Stock"); and
WHEREAS, the Optionee desires to accept the grant of such options, subject
to the terms and conditions of this Agreement.
NOW, THEREFORE, the Company and the Optionee hereby agree as follows:
Section 1. Grant of Options. Subject to the provisions of this Agreement,
the Company hereby grants to the Optionee options (the "Options") to purchase
from the Company at any time during the period commencing on the date hereof
through and including August 9, 2001 (the "Termination Date") (unless terminated
prior to such date pursuant to Section 2 below), Ninety Thousand (90,000) shares
of Series C Preferred Stock (the "Preferred Option Shares") at an exercise price
of $1.00 per share (the "Preferred Exercise Price"), and One Hundred Thousand
(100,000) shares of Common Stock (the "Common Option Shares") at an exercise
price of $.25 per share (the "Common Exercise Price").
Section 2. Termination of Options. To the extent not exercised, the Options
shall
<PAGE>
terminate either on the Termination Date or, in the event that the Optionholder
ceases to be employed by the Company, for any reason whatsoever, then this
Option Agreement shall terminate 90 days following the date of such termination,
or resignation, as the case may be, and the Optionholder shall have no further
rights under this Option Agreement.
Section 3. Corporate Events. In the event of a proposed liquidation of the
Company, a proposed sale of all or substantially all of its assets or its Common
Stock, a proposed merger or consolidation, or a proposed separation or
reorganization, the Board of Directors may declare that the Options shall
terminate as of a date to be fixed by the Board of Directors; provided however,
that not less than thirty (30) days preceding the date of such termination, the
Optionee may exercise the Options in whole or in part. However, nothing set
forth herein shall (i) extend the term set for purchasing the Option Shares or
(ii) give the Optionee any rights or privileges as a stockholder of the Company
prior to Optionee's exercise of any of the Option Shares.
Section 4. Exercise of Options. The Options may be exercised in whole or in
part in accordance with the provisions of this Agreement by the Optionee's
tendering the Exercise Price (or a proportionate part thereof if the Options are
partially exercised) in immediately available funds or other consideration
reasonably acceptable to the Board of Directors of the Company. The Company
shall cooperate to the extent reasonably possible with the Optionee in an
exercise pursuant to which all or part of the Optionee Shares will be sold
simultaneously with the exercise of the Options with the broker-dealer
participating in such sale being irrevocably instructed to remit the proceeds
from the exercise of the Options to the Company upon settlement of the sale of
the underlying Option Shares.
The Optionee may exercise part or all of the Options by tender to the
Company of a
2
<PAGE>
written notice of exercise together with advice of the delivery of an order to a
broker to sell part or all of the Option Shares, subject to such exercise notice
and an irrevocable order to such broker to deliver to the Company (or its
transfer agent) sufficient proceeds from the sale of such Option Shares to pay
the exercise price and any withholding taxes. All documentation and procedures
to be followed in connection with such a "cashless exercise" shall be approved
in advance by the Company, which approval shall be expeditiously provided and
not unreasonably withheld.
Section 5. Shares Certificates. Upon receipt of payment in full of the
Exercise Price, and after taking such steps as it deems necessary to satisfy any
withholding tax obligations imposed upon it by any level of government, the
Company will cause one or more stock certificates evidencing the Optionee's
ownership of the Option Shares so purchased by the Optionee to be issued to the
Optionee.
Section 6. Restrictions. The Options and the Option Shares have not been
registered under the Securities Act of 1933, as amended (the "Act"). Optionee
understands that, unless registered with the Securities and Exchange Commission
for sale to the public, all Option Shares acquired upon the exercise of the
Options shall be "restricted securities" as that term is defined in Rule 144
promulgated under the Act. The certificate representing the Option Shares shall
bear an appropriate legend restricting their transfer. Such Option Shares cannot
be sold, transferred, assigned or otherwise hypothecated without registration
under the Act or unless a valid exemption from registration is then available
under applicable federal and state securities laws and the Optionee has
furnished the Company with an opinion of counsel satisfactory in form and
substance to the Company's counsel that such registration is not required.
3
<PAGE>
Section 7. Default of Optionee. Should the Optionee at any time breach any
provision of this Agreement, the Options granted hereunder shall be deemed null
and void. The provision shall be in addition and not in lieu of any other
remedies which the Company may have at law and/or in equity.
Section 8. Share Adjustments. If there is any change in the number of
shares of Common Stock on account of the declaration of stock dividends,
recapitalization resulting in stock splits, or combinations or exchanges of
shares of Common Stock, or otherwise, the number of Option Shares available for
purchase by the exercise of the Options, and the Exercise Price, shall be
proportionately adjusted by the Company.
Section 9. Miscellaneous Provisions.
(a) Notices. Unless otherwise specifically provided herein, all notices to
be given hereunder shall be in writing and sent to the parties by certified
mail, return receipt requested, which shall be addressed to each party's
respective address, as set forth in the first paragraph of this Agreement, or to
such other address as such party shall give to the other party hereto by a
notice given in accordance with this Section and, except as otherwise provided
in this Agreement, shall be effective when deposited in the United States mail
properly addressed and postage prepaid. If such notice is sent other than by the
United States mail, such notice shall be effective when actually received by the
party being noticed.
(b) Assignment. This Agreement and the rights granted hereunder may not be
assigned in whole or in part by Optionee except by will or the laws of descent
and distribution, and the Options are exercisable during Optionee's lifetime
only by the Optionee. This Agreement may be assigned by the Company without the
consent of the Optionee.
(c) Further Assurances. Both parties hereto shall execute and deliver such
other
4
<PAGE>
instruments and do such other acts as may be necessary to carry out the intent
and purposes of this Agreement.
(d) Gender. Whenever the context may require, any pronouns used herein
shall include the corresponding masculine, feminine or neuter forms and the
singular form of nouns and pronouns shall include the plural and vice versa.
(e) Captions. The captions contained in this Agreement are inserted only as
a matter of convenience and in no way define, limit, extend or prescribe the
scope of this Agreement or the intent of any of the provisions hereof.
(f) Completeness and Modification. This Agreement constitutes the entire
understanding between the parties hereto superseding all prior and
contemporaneous agreements or understandings among the parties hereto concerning
the grant of stock options to the Optionee. This Agreement shall not terminated,
except in accordance with its terms, or amended in writing executed by all of
the parties hereto.
(g) Waiver. The waiver of a breach of any term or condition of this
Agreement shall not be deemed to constitute the waiver of any other breach of
the same or any other term or condition.
(h) Severability. The invalidity or enforceability, in whole or in part, of
any covenant, promise or undertaking, or any section, subsection, paragraph,
sentence, clause phrase or word or of any provision of this Agreement shall not
affect the validity or enforceability of the remaining portions thereof.
(i) Construction. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(j) Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the heirs, successors, estate and personal representatives of the
Optionee and upon the successors and assigns of the Company.
5
<PAGE>
(k) Litigation-Attorney' Fees. In connection with any litigation arising
out of the enforcement of this Agreement or for its interpretation, the
prevailing party shall be entitled to recover its costs, including reasonable
attorneys' fees, at the trial and all appellate levels form the other party
hereto, who was an adverse party to such litigation.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year set forth in the first paragraph of this Agreement above.
BEV-TYME, INC.
By: /s/ Robert Sipper
----------------------------
Robert Sipper
President
6
<PAGE>
EXHIBIT 4.23
<PAGE>
STOCK OPTION AGREEMENT
THIS AGREEMENT dated as of the 9th day of August, 1996, (the "Grant Date")
is made and entered into by and between Bev-Tyme, Inc., a Delaware corporation
with its principal offices located at 134 Morgan Avenue, Brooklyn, New York (the
"Company"), and Robert Forst (the "Optionee").
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company has approved the granting to
the Optionee of options to purchase certain shares of the Company's Series C
Convertible Preferred Stock, par value $.0001 per share (" Series C Preferred
Stock"), and certain shares of the Company's Common Stock, par value $.0001 per
share ("Common Stock"); and
WHEREAS, the Optionee desires to accept the grant of such options, subject
to the terms and conditions of this Agreement.
NOW, THEREFORE, the Company and the Optionee hereby agree as follows:
Section 1. Grant of Options. Subject to the provisions of this Agreement,
the Company hereby grants to the Optionee options (the "Options") to purchase
from the Company at any time during the period commencing on the date hereof
through and including August 9, 2001 (the "Termination Date") (unless terminated
prior to such date pursuant to Section 2 below), Ninety Thousand (90,000) shares
of Series C Preferred Stock (the "Preferred Option Shares") at an exercise price
of $1.00 per share (the "Preferred Exercise Price"), and One Hundred Thousand
(100,000) shares of Common Stock (the "Common Option Shares") at an exercise
price of $.25 per share (the "Common Exercise Price").
Section 2. Termination of Options. To the extent not exercised, the Options
shall
<PAGE>
terminate either on the Termination Date or, in the event that the Optionholder
ceases to be employed by the Company, for any reason whatsoever, then this
Option Agreement shall terminate 90 days following the date of such termination,
or resignation, as the case may be, and the Optionholder shall have no further
rights under this Option Agreement.
Section 3. Corporate Events. In the event of a proposed liquidation of the
Company, a proposed sale of all or substantially all of its assets or its Common
Stock, a proposed merger or consolidation, or a proposed separation or
reorganization, the Board of Directors may declare that the Options shall
terminate as of a date to be fixed by the Board of Directors; provided however,
that not less than thirty (30) days preceding the date of such termination, the
Optionee may exercise the Options in whole or in part. However, nothing set
forth herein shall (i) extend the term set for purchasing the Option Shares or
(ii) give the Optionee any rights or privileges as a stockholder of the Company
prior to Optionee's exercise of any of the Option Shares.
Section 4. Exercise of Options. The Options may be exercised in whole or in
part in accordance with the provisions of this Agreement by the Optionee's
tendering the Exercise Price (or a proportionate part thereof if the Options are
partially exercised) in immediately available funds or other consideration
reasonably acceptable to the Board of Directors of the Company. The Company
shall cooperate to the extent reasonably possible with the Optionee in an
exercise pursuant to which all or part of the Optionee Shares will be sold
simultaneously with the exercise of the Options with the broker-dealer
participating in such sale being irrevocably instructed to remit the proceeds
from the exercise of the Options to the Company upon settlement of the sale of
the underlying Option Shares.
The Optionee may exercise part or all of the Options by tender to the
Company of a
2
<PAGE>
written notice of exercise together with advice of the delivery of an order to a
broker to sell part or all of the Option Shares, subject to such exercise notice
and an irrevocable order to such broker to deliver to the Company (or its
transfer agent) sufficient proceeds from the sale of such Option Shares to pay
the exercise price and any withholding taxes. All documentation and procedures
to be followed in connection with such a "cashless exercise" shall be approved
in advance by the Company, which approval shall be expeditiously provided and
not unreasonably withheld.
Section 5. Shares Certificates. Upon receipt of payment in full of the
Exercise Price, and after taking such steps as it deems necessary to satisfy any
withholding tax obligations imposed upon it by any level of government, the
Company will cause one or more stock certificates evidencing the Optionee's
ownership of the Option Shares so purchased by the Optionee to be issued to the
Optionee.
Section 6. Restrictions. The Options and the Option Shares have not been
registered under the Securities Act of 1933, as amended (the "Act"). Optionee
understands that, unless registered with the Securities and Exchange Commission
for sale to the public, all Option Shares acquired upon the exercise of the
Options shall be "restricted securities" as that term is defined in Rule 144
promulgated under the Act. The certificate representing the Option Shares shall
bear an appropriate legend restricting their transfer. Such Option Shares cannot
be sold, transferred, assigned or otherwise hypothecated without registration
under the Act or unless a valid exemption from registration is then available
under applicable federal and state securities laws and the Optionee has
furnished the Company with an opinion of counsel satisfactory in form and
substance to the Company's counsel that such registration is not required.
3
<PAGE>
Section 7. Default of Optionee. Should the Optionee at any time breach any
provision of this Agreement, the Options granted hereunder shall be deemed null
and void. The provision shall be in addition and not in lieu of any other
remedies which the Company may have at law and/or in equity.
Section 8. Share Adjustments. If there is any change in the number of
shares of Common Stock on account of the declaration of stock dividends,
recapitalization resulting in stock splits, or combinations or exchanges of
shares of Common Stock, or otherwise, the number of Option Shares available for
purchase by the exercise of the Options, and the Exercise Price, shall be
proportionately adjusted by the Company.
Section 9. Miscellaneous Provisions.
(a) Notices. Unless otherwise specifically provided herein, all notices to
be given hereunder shall be in writing and sent to the parties by certified
mail, return receipt requested, which shall be addressed to each party's
respective address, as set forth in the first paragraph of this Agreement, or to
such other address as such party shall give to the other party hereto by a
notice given in accordance with this Section and, except as otherwise provided
in this Agreement, shall be effective when deposited in the United States mail
properly addressed and postage prepaid. If such notice is sent other than by the
United States mail, such notice shall be effective when actually received by the
party being noticed.
(b) Assignment. This Agreement and the rights granted hereunder may not be
assigned in whole or in part by Optionee except by will or the laws of descent
and distribution, and the Options are exercisable during Optionee's lifetime
only by the Optionee. This Agreement may be assigned by the Company without the
consent of the Optionee.
(c) Further Assurances. Both parties hereto shall execute and deliver such
other
4
<PAGE>
instruments and do such other acts as may be necessary to carry out the intent
and purposes of this Agreement.
(d) Gender. Whenever the context may require, any pronouns used herein
shall include the corresponding masculine, feminine or neuter forms and the
singular form of nouns and pronouns shall include the plural and vice versa.
(e) Captions. The captions contained in this Agreement are inserted only as
a matter of convenience and in no way define, limit, extend or prescribe the
scope of this Agreement or the intent of any of the provisions hereof.
(f) Completeness and Modification. This Agreement constitutes the entire
understanding between the parties hereto superseding all prior and
contemporaneous agreements or understandings among the parties hereto concerning
the grant of stock options to the Optionee. This Agreement shall not terminated,
except in accordance with its terms, or amended in writing executed by all of
the parties hereto.
(g) Waiver. The waiver of a breach of any term or condition of this
Agreement shall not be deemed to constitute the waiver of any other breach of
the same or any other term or condition.
(h) Severability. The invalidity or enforceability, in whole or in part, of
any covenant, promise or undertaking, or any section, subsection, paragraph,
sentence, clause phrase or word or of any provision of this Agreement shall not
affect the validity or enforceability of the remaining portions thereof.
(i) Construction. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(j) Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the heirs, successors, estate and personal representatives of the
Optionee and upon the successors and assigns of the Company.
5
<PAGE>
(k) Litigation-Attorney' Fees. In connection with any litigation arising
out of the enforcement of this Agreement or for its interpretation, the
prevailing party shall be entitled to recover its costs, including reasonable
attorneys' fees, at the trial and all appellate levels form the other party
hereto, who was an adverse party to such litigation.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year set forth in the first paragraph of this Agreement above.
BEV-TYME, INC.
By: /s/ Robert Sipper
----------------------------
Robert Sipper
President
6
<PAGE>
EXHIBIT 4.24
<PAGE>
STOCK OPTION AGREEMENT
THIS AGREEMENT dated as of the 9th day of August, 1996, (the "Grant Date")
is made and entered into by and between Bev-Tyme, Inc., a Delaware corporation
with its principal offices located at 134 Morgan Avenue, Brooklyn, New York (the
"Company"), and Alfred Sipper (the "Optionee").
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company has approved the granting to
the Optionee of options to purchase certain shares of the Company's Series C
Convertible Preferred Stock, par value $.0001 per share (" Series C Preferred
Stock"), and certain shares of the Company's Common Stock, par value $.0001 per
share ("Common Stock"); and
WHEREAS, the Optionee desires to accept the grant of such options, subject
to the terms and conditions of this Agreement.
NOW, THEREFORE, the Company and the Optionee hereby agree as follows:
Section 1. Grant of Options. Subject to the provisions of this Agreement,
the Company hereby grants to the Optionee options (the "Options") to purchase
from the Company at any time during the period commencing on the date hereof
through and including August 9, 2001 (the "Termination Date") (unless terminated
prior to such date pursuant to Section 2 below), Ninety Thousand (90,000) shares
of Series C Preferred Stock (the "Preferred Option Shares") at an exercise price
of $1.00 per share (the "Preferred Exercise Price"), and One Hundred Thousand
(100,000) shares of Common Stock (the "Common Option Shares") at an exercise
price of $.25 per share (the "Common Exercise Price").
Section 2. Termination of Options. To the extent not exercised, the Options
shall
<PAGE>
terminate either on the Termination Date or, in the event that the Optionholder
ceases to be employed by the Company, for any reason whatsoever, then this
Option Agreement shall terminate 90 days following the date of such termination,
or resignation, as the case may be, and the Optionholder shall have no further
rights under this Option Agreement.
Section 3. Corporate Events. In the event of a proposed liquidation of the
Company, a proposed sale of all or substantially all of its assets or its Common
Stock, a proposed merger or consolidation, or a proposed separation or
reorganization, the Board of Directors may declare that the Options shall
terminate as of a date to be fixed by the Board of Directors; provided however,
that not less than thirty (30) days preceding the date of such termination, the
Optionee may exercise the Options in whole or in part. However, nothing set
forth herein shall (i) extend the term set for purchasing the Option Shares or
(ii) give the Optionee any rights or privileges as a stockholder of the Company
prior to Optionee's exercise of any of the Option Shares.
Section 4. Exercise of Options. The Options may be exercised in whole or in
part in accordance with the provisions of this Agreement by the Optionee's
tendering the Exercise Price (or a proportionate part thereof if the Options are
partially exercised) in immediately available funds or other consideration
reasonably acceptable to the Board of Directors of the Company. The Company
shall cooperate to the extent reasonably possible with the Optionee in an
exercise pursuant to which all or part of the Optionee Shares will be sold
simultaneously with the exercise of the Options with the broker-dealer
participating in such sale being irrevocably instructed to remit the proceeds
from the exercise of the Options to the Company upon settlement of the sale of
the underlying Option Shares.
The Optionee may exercise part or all of the Options by tender to the
Company of a
2
<PAGE>
written notice of exercise together with advice of the delivery of an order to a
broker to sell part or all of the Option Shares, subject to such exercise notice
and an irrevocable order to such broker to deliver to the Company (or its
transfer agent) sufficient proceeds from the sale of such Option Shares to pay
the exercise price and any withholding taxes. All documentation and procedures
to be followed in connection with such a "cashless exercise" shall be approved
in advance by the Company, which approval shall be expeditiously provided and
not unreasonably withheld.
Section 5. Shares Certificates. Upon receipt of payment in full of the
Exercise Price, and after taking such steps as it deems necessary to satisfy any
withholding tax obligations imposed upon it by any level of government, the
Company will cause one or more stock certificates evidencing the Optionee's
ownership of the Option Shares so purchased by the Optionee to be issued to the
Optionee.
Section 6. Restrictions. The Options and the Option Shares have not been
registered under the Securities Act of 1933, as amended (the "Act"). Optionee
understands that, unless registered with the Securities and Exchange Commission
for sale to the public, all Option Shares acquired upon the exercise of the
Options shall be "restricted securities" as that term is defined in Rule 144
promulgated under the Act. The certificate representing the Option Shares shall
bear an appropriate legend restricting their transfer. Such Option Shares cannot
be sold, transferred, assigned or otherwise hypothecated without registration
under the Act or unless a valid exemption from registration is then available
under applicable federal and state securities laws and the Optionee has
furnished the Company with an opinion of counsel satisfactory in form and
substance to the Company's counsel that such registration is not required.
3
<PAGE>
Section 7. Default of Optionee. Should the Optionee at any time breach any
provision of this Agreement, the Options granted hereunder shall be deemed null
and void. The provision shall be in addition and not in lieu of any other
remedies which the Company may have at law and/or in equity.
Section 8. Share Adjustments. If there is any change in the number of
shares of Common Stock on account of the declaration of stock dividends,
recapitalization resulting in stock splits, or combinations or exchanges of
shares of Common Stock, or otherwise, the number of Option Shares available for
purchase by the exercise of the Options, and the Exercise Price, shall be
proportionately adjusted by the Company.
Section 9. Miscellaneous Provisions.
(a) Notices. Unless otherwise specifically provided herein, all notices to
be given hereunder shall be in writing and sent to the parties by certified
mail, return receipt requested, which shall be addressed to each party's
respective address, as set forth in the first paragraph of this Agreement, or to
such other address as such party shall give to the other party hereto by a
notice given in accordance with this Section and, except as otherwise provided
in this Agreement, shall be effective when deposited in the United States mail
properly addressed and postage prepaid. If such notice is sent other than by the
United States mail, such notice shall be effective when actually received by the
party being noticed.
(b) Assignment. This Agreement and the rights granted hereunder may not be
assigned in whole or in part by Optionee except by will or the laws of descent
and distribution, and the Options are exercisable during Optionee's lifetime
only by the Optionee. This Agreement may be assigned by the Company without the
consent of the Optionee.
(c) Further Assurances. Both parties hereto shall execute and deliver such
other
4
<PAGE>
instruments and do such other acts as may be necessary to carry out the intent
and purposes of this Agreement.
(d) Gender. Whenever the context may require, any pronouns used herein
shall include the corresponding masculine, feminine or neuter forms and the
singular form of nouns and pronouns shall include the plural and vice versa.
(e) Captions. The captions contained in this Agreement are inserted only as
a matter of convenience and in no way define, limit, extend or prescribe the
scope of this Agreement or the intent of any of the provisions hereof.
(f) Completeness and Modification. This Agreement constitutes the entire
understanding between the parties hereto superseding all prior and
contemporaneous agreements or understandings among the parties hereto concerning
the grant of stock options to the Optionee. This Agreement shall not terminated,
except in accordance with its terms, or amended in writing executed by all of
the parties hereto.
(g) Waiver. The waiver of a breach of any term or condition of this
Agreement shall not be deemed to constitute the waiver of any other breach of
the same or any other term or condition.
(h) Severability. The invalidity or enforceability, in whole or in part, of
any covenant, promise or undertaking, or any section, subsection, paragraph,
sentence, clause phrase or word or of any provision of this Agreement shall not
affect the validity or enforceability of the remaining portions thereof.
(i) Construction. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(j) Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the heirs, successors, estate and personal representatives of the
Optionee and upon the successors and assigns of the Company.
5
<PAGE>
(k) Litigation-Attorney' Fees. In connection with any litigation arising
out of the enforcement of this Agreement or for its interpretation, the
prevailing party shall be entitled to recover its costs, including reasonable
attorneys' fees, at the trial and all appellate levels form the other party
hereto, who was an adverse party to such litigation.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year set forth in the first paragraph of this Agreement above.
BEV-TYME, INC.
By: /s/ Robert Sipper
----------------------------
Robert Sipper
President
6
<PAGE>
EXHIBIT 5.0
<PAGE>
[LETTERHEAD OF BERNSTEIN AND WASSERMAN]
April 24, 1997
Bev-Tyme, Inc.
134 Morgan Avenue
Brooklyn, New York 11237
Ladies and Gentlemen:
We have acted as counsel for Bev-Tyme, Inc., a Delaware corporation
("Company"), in connection with a Registration Statement on Form S-8
("Registration Statement") being filed contemporaneously herewith by the Company
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Securities Act"), covering an aggregate of 630,000 shares of the
Company's Series C Convertible Preferred Stock, $.0001 par value ("Preferred
Stock"), and an aggregate of 700,000 shares of the Company's Common Stock,
$.0001 par value ("Common Stock") (collectively the "Shares").
In that connection, we have examined the Certificate of Incorporation, as
amended, and the By-Laws of the Company, the Registration Statement, the Stock
Option Agreements dated August 9, 1996 between the Company and Robert J. Sipper,
William Swedelson, Bruce Logan, Hartley Bernstein, Hyacinth Steer, Robert Forst,
and Alfred Sipper, corporate proceedings of the Company relating to the issuance
of the Preferred Stock and the Common Stock, and such other instruments and
documents as we have deemed relevant under the circumstances.
In making the aforesaid examinations, we have assumed the genuineness of
all signatures and the conformity to original documents of all copies furnished
to us as original or photostatic copies. We have also assumed that the corporate
records of the Company include all corporate proceedings taken by the Company to
date.
Based upon and subject to the foregoing, we are of the opinion that the
Shares when issued in accordance with the terms of the Stock Option Agreements
will be duly and validly authorized
<PAGE>
and issued and fully paid and non-assessable.
We hereby consent to the use of this opinion as herein set forth as an
exhibit to the Registration Statement.
Very truly yours,
/s/ Bernstein & Wasserman, LLP
BERNSTEIN & WASSERMAN, LLP
<PAGE>
EXHIBIT 24.1
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement
of Bev-Tyme, Inc. on Form S-8 of our report dated March 26, 1997 on our audits
of the consolidated financial statements as of December 31, 1996, and for each
of the two years in the period ended December 31, 1996, which report was
included in the Annual Report on Form 10-KSB.
/s/ Moore Stephens, P.C.
MOORE STEPHENS, P.C.
Certified Public Accountants
Cranford, New Jersey
April 24, 1997
