<PAGE>
As filed with the Securities and Exchange Commission on September , 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.)
800 Sheffield Avenue, Brooklyn, NY 11207
---------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
STOCK OPTION AGREEMENTS DATED SEPTEMBER 2, 1997, TO PURCHASE AN AGGREGATE OF
1,200,000 SHARES OF SERIES C CONVERTIBLE PREFERRED STOCK AND THE SHARES OF
COMMON STOCK ISSUABLE UPON THE CONVERSION THEREOF.
STOCK OPTION AGREEMENT DATED SEPTEMBER 5, 1997, TO PURCHASE 200,000 SHARES OF
SERIES C CONVERTIBLE PREFERRED STOCK AND THE SHARES OF COMMON STOCK ISSUABLE
UPON THE CONVERSION THEREOF.
STOCK OPTION AGREEMENT DATED SEPTEMBER 10, 1997, TO PURCHASE 200,000 SHARES OF
SERIES C CONVERTIBLE PREFERRED STOCK AND THE SHARES OF COMMON STOCK ISSUABLE
UPON THE CONVERSION THEREOF.
CONSULTING AGREEMENT DATED SEPTEMBER 2, 1997 TO PURCHASE 200,000 SHARES OF
SERIES C CONVERTIBLE PREFERRED STOCK AND THE SHARES OF COMMON STOCK
ISSUABLE UPON THE CONVERSION THEROF.
(Full title of the plan)
Alfred Sipper
President
Bev-Tyme, Inc.
800 Sheffield Avenue
Brooklyn, NY 11207
---------------------------------------
(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 1,600,000 $ .25 $ 400,000 $ 121.20
Preferred Stock, par value
$.0001 per share
Series C Convertible 200,000 $ .10 $ 20,000 $ 6.06
Preferred Stock, par value
$.0001 per share
TOTAL 1,800,000 --- $ 420,000 $ 127.26
</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 and Consulting Agreement 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) Quarterly Report on Form 10-QSB for the period ended March 31,
1997.
(2) Annual Report on Form 10-KSB for the year ended December 31,
1996.
(3) The description of the Series C Convertible Preferred Stock,
par value $.0001 per share ("Series C Preferred 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.
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 Alfred
Sipper, President and Chief Executive Officer, Bev-Tyme, Inc., 800 Sheffield
Avenue, Brooklyn, NY 11207, telephone (718) 894-4300.
3
<PAGE>
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 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.
4
<PAGE>
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:
<TABLE>
<CAPTION>
Exhibit No. Document
- ----------- --------
<S> <C>
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).
5.1 Opinion of Bernstein & Wasserman, LLP.
10.1 Stock Option Agreement dated as of September 2, 1997 between the Corporation and Robert J.
Sipper.
10.2 Stock Option Agreement dated as of September 2, 1997 between the Corporation and Alfred Sipper.
10.3 Stock Option Agreement dated as of September 2, 1997 between the Corporation and William
Swedelson.
10.4 Stock Option Agreement dated as of September 2, 1997 between the Corporation and Bruce Logan.
10.5 Stock Option Agreement dated as of September 2, 1997 between the Corporation and Robert Forst.
10.6 Stock Option Agreement dated as of September 2, 1997 between the Corporation and Hyacinth Steer.
10.7 Stock Option Agreement dated as of September 5, 1997 between the Corporation and Hartley T.
Bernstein.
10.8 Stock Option Agreement dated as of September 10, 1997 between the Corporation and Bernstein &
Wasserman, LLP.
10.9 Consulting Agreement dated September 2, 1997 between the Corporation and Hartley T. Bernstein.
23.1 Consent of Bernstein & Wasserman, LLP (included in Exhibit 5.1)
23.2 Consent of Moore Stephens, P.C.
</TABLE>
5
<PAGE>
Item 9. Undertakings
A. The undersigned registrant hereby undertakes:
(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
6
<PAGE>
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
7
<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 10th day of September, 1997.
BEV-TYME, INC.
By: /s/ Alfred Sipper
--------------------------------------
Alfred Sipper
President, Chief Executive Officer,
Chief Financial Officer and Director
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Alfred 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.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Alfred Sipper President, Chief Executive September 10, 1997
- ------------------------------------ Officer, Chief Financial
Alfred Sipper Officer and Director
/s/ William Swedelson Director September 10, 1997
- ------------------------------------
William Swedelson
Director September , 1997
- ------------------------------------
Bruce Logan
</TABLE>
8
<PAGE>
BEV-TYME, INC.
EXHIBITS
TO
REGISTRATION STATEMENT ON FORM S-8
<PAGE>
INDEX TO EXHIBITS
-----------------
<TABLE>
<CAPTION>
Exhibit No. Document
- ----------- --------
<S> <C>
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).
5.1 Opinion of Bernstein & Wasserman, LLP.
10.1 Stock Option Agreement dated as of September 2, 1997 between the Corporation and Robert J.
Sipper.
10.2 Stock Option Agreement dated as of September 2, 1997 between the Corporation and Alfred Sipper.
10.3 Stock Option Agreement dated as of September 2, 1997 between the Corporation and William
Swedelson.
10.4 Stock Option Agreement dated as of September 2, 1997 between the Corporation and Bruce Logan.
10.5 Stock Option Agreement dated as of September 2, 1997 between the Corporation and Robert Forst.
10.6 Stock Option Agreement dated as of September 2, 1997 between the Corporation and Hyacinth Steer.
10.7 Stock Option Agreement dated as of September 5, 1997 between the Corporation and Hartley T.
Bernstein.
10.8 Stock Option Agreement dated as of September 10, 1997 between the Corporation and Bernstein &
Wasserman, LLP.
10.9 Consulting Agreement dated September 2, 1997 between the Corporation and Hartley T. Bernstein.
23.1 Consent of Bernstein & Wasserman, LLP (included in Exhibit 5.1)
23.2 Consent of Moore Stephens, P.C.
</TABLE>
10
<PAGE>
September 11, 1997
Bev-Tyme, Inc.
800 Sheffield Avenue
Brooklyn, New York 11207
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 1,800,000 shares of the
Company's Series C Convertible Preferred Stock, $.0001 par value ("Preferred
Stock").
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 September 2, 1997 between the Company and Robert
J. Sipper, William Swedelson, Bruce Logan, Hyacinth Steer, Robert Forst, and
Alfred Sipper, a Stock Option Agreement dated September 5, 1997 between the
Company and Hartley T. Bernstein; a Stock Option Agreement dated September 10,
1997 between the Company and Bernstein & Wasserman, LLP; and a Consulting
Agreement dated September 2, 1997 between the Company and Hartley T. Bernstein
and corporate proceedings of the Company relating to the issuance of the
Preferred 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
Preferred Stock when
<PAGE>
issued in accordance with the terms of the Stock Option Agreements and the
Consulting Agreement will be duly and validly authorized 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>
STOCK OPTION AGREEMENT
THIS AGREEMENT dated as of the 2nd day of September, 1997, (the "Grant
Date") is made and entered into by and between Bev-Tyme, Inc., a Delaware
corporation with its principal offices located at 800 Sheffield 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 the option to purchase certain shares of the
Company's Series C Convertible Preferred Stock, par value $.0001 per share
("Series C Preferred Stock"); and
WHEREAS, the Optionee desires to accept the grant of such option,
subject to the terms and conditions of this Agreement.
NOW, THEREFORE, the Company and the Optionee hereby agree as follows:
Section 1. Grant of Option. Subject to the provisions of this
Agreement, the Company hereby grants to the Optionee an option (the "Option") to
purchase from the Company at any time during the period commencing on the date
hereof through and including September 2, 2002 (the "Termination Date") Two
Hundred Thousand (200,000) shares of Series C Preferred Stock (the "Option
Shares") at an exercise price of $.25 per share (the "Exercise Price").
Section 2. Termination of Options. To the extent not exercised, the
Option shall terminate on the Termination Date.
<PAGE>
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 Option 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 Option 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 Option. The Option 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 Option is
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 this Option with the broker-dealer
participating in such sale being irrevocably instructed to remit the proceeds
from the exercise of the Option to the Company upon settlement of the sale of
the underlying Option Shares.
The Optionee may exercise part or all of the Option by tender to the
Company of a 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
2
<PAGE>
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 Option and the Option Shares have not been
registered under the Securities Act of 1933, as amended (the "Act"). Optionees
understands that, unless registered with the Securities and Exchange Commission
for sale to the public, all Option Shares acquired upon the exercise of the
Option 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.
Section 7. Default of Optionee. Should the Optionee at any time breach
any provision of this Agreement, the Option granted hereunder shall be 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.
3
<PAGE>
Section 8. Share Adjustments. If there is any change in the number of
shares of Series C Preferred Stock on account of the declaration of stock
dividends, recapitalization resulting in stock splits, or combinations or
exchanges of shares of Series C Preferred Stock, or otherwise, the number of
Option Shares available for purchase by the exercise of the Option, 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 Option is 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 instruments and do such other acts as may be necessary to carry out
the intent and purposes of this Agreement.
4
<PAGE>
(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.
5
<PAGE>
(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.
(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/ Alfred Sipper
---------------------------
Alfred Sipper
President
/s/ Robert Sipper
---------------------------
Robert Sipper
6
<PAGE>
STOCK OPTION AGREEMENT
THIS AGREEMENT dated as of the 2nd day of September, 1997, (the "Grant
Date") is made and entered into by and between Bev-Tyme, Inc., a Delaware
corporation with its principal offices located at 800 Sheffield Avenue,
Brooklyn, New York (the "Company"), and Fred 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 the option to purchase certain shares of the
Company's Series C Convertible Preferred Stock, par value $.0001 per share
("Series C Preferred Stock"); and
WHEREAS, the Optionee desires to accept the grant of such option,
subject to the terms and conditions of this Agreement.
NOW, THEREFORE, the Company and the Optionee hereby agree as follows:
Section 1. Grant of Option. Subject to the provisions of this
Agreement, the Company hereby grants to the Optionee an option (the "Option") to
purchase from the Company at any time during the period commencing on the date
hereof through and including September 2, 2002 (the "Termination Date") Two
Hundred Thousand (200,000) shares of Series C Preferred Stock (the "Option
Shares") at an exercise price of $.25 per share (the "Exercise Price").
Section 2. Termination of Options. To the extent not exercised, the
Option shall terminate on the Termination Date or thirty days following the date
on which the Optionee is no longer employed by the Company (or a subsidiary
thereof), whichever is sooner.
<PAGE>
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 Option 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 Option 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 Option. The Option 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 Option is
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 this Option with the broker-dealer
participating in such sale being irrevocably instructed to remit the proceeds
from the exercise of the Option to the Company upon settlement of the sale of
the underlying Option Shares.
The Optionee may exercise part or all of the Option by tender to the
Company of a 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
2
<PAGE>
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 Option and the Option Shares have not been
registered under the Securities Act of 1933, as amended (the "Act"). Optionees
understands that, unless registered with the Securities and Exchange Commission
for sale to the public, all Option Shares acquired upon the exercise of the
Option 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.
Section 7. Default of Optionee. Should the Optionee at any time breach
any provision of this Agreement, the Option granted hereunder shall be 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.
3
<PAGE>
Section 8. Share Adjustments. If there is any change in the number of
shares of Series C Preferred Stock on account of the declaration of stock
dividends, recapitalization resulting in stock splits, or combinations or
exchanges of shares of Series C Preferred Stock, or otherwise, the number of
Option Shares available for purchase by the exercise of the Option, 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 Option is 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 instruments and do such other acts as may be necessary to carry out
the intent and purposes of this Agreement.
4
<PAGE>
(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.
5
<PAGE>
(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.
(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/ Alfred Sipper
--------------------------
Alfred Sipper
President
/s/ Fred Sipper
--------------------------
Fred Sipper
6
<PAGE>
STOCK OPTION AGREEMENT
THIS AGREEMENT dated as of the 2nd day of September, 1997, (the "Grant
Date") is made and entered into by and between Bev-Tyme, Inc., a Delaware
corporation with its principal offices located at 800 Sheffield 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 the option to purchase certain shares of the
Company's Series C Convertible Preferred Stock, par value $.0001 per share
("Series C Preferred Stock"); and
WHEREAS, the Optionee desires to accept the grant of such option,
subject to the terms and conditions of this Agreement.
NOW, THEREFORE, the Company and the Optionee hereby agree as follows:
Section 1. Grant of Option. Subject to the provisions of this
Agreement, the Company hereby grants to the Optionee an option (the "Option") to
purchase from the Company at any time during the period commencing on the date
hereof through and including September 2, 2002 (the "Termination Date") Two
Hundred Thousand (200,000) shares of Series C Preferred Stock (the "Option
Shares") at an exercise price of $.25 per share (the "Exercise Price").
Section 2. Termination of Options. To the extent not exercised, the
Option shall terminate on the Termination Date or thirty days following the date
on which the Optionee is no longer employed by the Company (or a subsidiary
thereof), whichever is sooner.
<PAGE>
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 Option 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 Option 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 Option. The Option 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 Option is
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 this Option with the broker-dealer
participating in such sale being irrevocably instructed to remit the proceeds
from the exercise of the Option to the Company upon settlement of the sale of
the underlying Option Shares.
The Optionee may exercise part or all of the Option by tender to the
Company of a 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
2
<PAGE>
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 Option and the Option Shares have not been
registered under the Securities Act of 1933, as amended (the "Act"). Optionees
understands that, unless registered with the Securities and Exchange Commission
for sale to the public, all Option Shares acquired upon the exercise of the
Option 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.
Section 7. Default of Optionee. Should the Optionee at any time breach
any provision of this Agreement, the Option granted hereunder shall be 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.
3
<PAGE>
Section 8. Share Adjustments. If there is any change in the number of
shares of Series C Preferred Stock on account of the declaration of stock
dividends, recapitalization resulting in stock splits, or combinations or
exchanges of shares of Series C Preferred Stock, or otherwise, the number of
Option Shares available for purchase by the exercise of the Option, 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 Option is 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 instruments and do such other acts as may be necessary to carry out
the intent and purposes of this Agreement.
4
<PAGE>
(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.
5
<PAGE>
(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.
(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/ Alfred Sipper
-----------------------------
Alfred Sipper
President
/s/ William Swedelson
-----------------------------
William Swedelson
6
<PAGE>
STOCK OPTION AGREEMENT
THIS AGREEMENT dated as of the 2nd day of September, 1997, (the "Grant
Date") is made and entered into by and between Bev-Tyme, Inc., a Delaware
corporation with its principal offices located at 800 Sheffield 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 the option to purchase certain shares of the
Company's Series C Convertible Preferred Stock, par value $.0001 per share
("Series C Preferred Stock"); and
WHEREAS, the Optionee desires to accept the grant of such option,
subject to the terms and conditions of this Agreement.
NOW, THEREFORE, the Company and the Optionee hereby agree as follows:
Section 1. Grant of Option. Subject to the provisions of this
Agreement, the Company hereby grants to the Optionee an option (the "Option") to
purchase from the Company at any time during the period commencing on the date
hereof through and including September 2, 2002 (the "Termination Date") Two
Hundred Thousand (200,000) shares of Series C Preferred Stock (the "Option
Shares") at an exercise price of $.25 per share (the "Exercise Price").
Section 2. Termination of Options. To the extent not exercised, the
Option shall terminate on the Termination Date or thirty days following the date
on which the Optionee is no longer employed by the Company (or a subsidiary
thereof), whichever is sooner.
<PAGE>
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 Option 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 Option 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 Option. The Option 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 Option is
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 this Option with the broker-dealer
participating in such sale being irrevocably instructed to remit the proceeds
from the exercise of the Option to the Company upon settlement of the sale of
the underlying Option Shares.
The Optionee may exercise part or all of the Option by tender to the
Company of a 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
2
<PAGE>
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 Option and the Option Shares have not been
registered under the Securities Act of 1933, as amended (the "Act"). Optionees
understands that, unless registered with the Securities and Exchange Commission
for sale to the public, all Option Shares acquired upon the exercise of the
Option 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.
Section 7. Default of Optionee. Should the Optionee at any time breach
any provision of this Agreement, the Option granted hereunder shall be 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.
3
<PAGE>
Section 8. Share Adjustments. If there is any change in the number of
shares of Series C Preferred Stock on account of the declaration of stock
dividends, recapitalization resulting in stock splits, or combinations or
exchanges of shares of Series C Preferred Stock, or otherwise, the number of
Option Shares available for purchase by the exercise of the Option, 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 Option is 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 instruments and do such other acts as may be necessary to carry out
the intent and purposes of this Agreement.
4
<PAGE>
(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.
5
<PAGE>
(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.
(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/ Alfred Sipper
---------------------------
Alfred Sipper
President
/s/ Bruce Logan
---------------------------
Bruce Logan
6
<PAGE>
STOCK OPTION AGREEMENT
THIS AGREEMENT dated as of the 2nd day of September, 1997, (the "Grant
Date") is made and entered into by and between Bev-Tyme, Inc., a Delaware
corporation with its principal offices located at 800 Sheffield 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 the option to purchase certain shares of the
Company's Series C Convertible Preferred Stock, par value $.0001 per share
("Series C Preferred Stock") pursuant to the terms of that certain consulting
agreement dated the date hereof by and between the Company and the Optionee; and
WHEREAS, the Optionee desires to accept the grant of such option,
subject to the terms and conditions of this Agreement.
NOW, THEREFORE, the Company and the Optionee hereby agree as follows:
Section 1. Grant of Option. Subject to the provisions of this
Agreement, the Company hereby grants to the Optionee an option (the "Option") to
purchase from the Company at any time during the period commencing on the date
hereof through and including September 2, 2002 (the "Termination Date") Two
Hundred Thousand (200,000) shares of Series C Preferred Stock (the "Option
Shares") at an exercise price of $.25 per share (the "Exercise Price").
<PAGE>
Section 2. Termination of Options. To the extent not exercised, the
Option shall terminate on the Termination Date or thirty days following the date
on which the Optionee is no longer engaged as a consultant by the Company (or a
subsidiary thereof), whichever is sooner.
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 Option 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 Option 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 Option. The Option 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 Option is
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 this Option with the broker-dealer
participating in such sale being irrevocably instructed to remit the proceeds
from the exercise of the Option to the Company upon settlement of the sale of
the underlying Option Shares.
The Optionee may exercise part or all of the Option by tender to the
Company of a written notice of exercise together with advice of the delivery of
an order to a broker to sell part
2
<PAGE>
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 Option and the Option Shares have not been
registered under the Securities Act of 1933, as amended (the "Act"). Optionees
understands that, unless registered with the Securities and Exchange Commission
for sale to the public, all Option Shares acquired upon the exercise of the
Option 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 Option granted hereunder shall be 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 Series C Preferred Stock on account of the declaration of stock
dividends, recapitalization resulting in stock splits, or combinations or
exchanges of shares of Series C Preferred Stock, or otherwise, the number of
Option Shares available for purchase by the exercise of the Option, 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 Option is exercisable during Optionee's
lifetime only by the Optionee. This Agreement may be assigned by the Company
without the consent of the Optionee.
4
<PAGE>
(c) Further Assurances. Both parties hereto shall execute and deliver
such other 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.
5
<PAGE>
(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.
(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/ Alfred Sipper
----------------------------
Alfred Sipper
President
/s/ Robert Forst
----------------------------
Robert Forst
6
<PAGE>
STOCK OPTION AGREEMENT
THIS AGREEMENT dated as of the 2nd day of September, 1997, (the "Grant
Date") is made and entered into by and between Bev-Tyme, Inc., a Delaware
corporation with its principal offices located at 800 Sheffield 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 the option to purchase certain shares of the
Company's Series C Convertible Preferred Stock, par value $.0001 per share
("Series C Preferred Stock"); and
WHEREAS, the Optionee desires to accept the grant of such option,
subject to the terms and conditions of this Agreement.
NOW, THEREFORE, the Company and the Optionee hereby agree as follows:
Section 1. Grant of Option. Subject to the provisions of this
Agreement, the Company hereby grants to the Optionee an option (the "Option") to
purchase from the Company at any time during the period commencing on the date
hereof through and including September 2, 2002 (the "Termination Date") Two
Hundred Thousand (200,000) shares of Series C Preferred Stock (the "Option
Shares") at an exercise price of $.25 per share (the "Exercise Price").
Section 2. Termination of Options. To the extent not exercised, the
Option shall terminate on the Termination Date or thirty days following the date
on which the Optionee is no longer employed by the Company (or a subsidiary
thereof), whichever is sooner.
<PAGE>
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 Option 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 Option 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 Option. The Option 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 Option is
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 this Option with the broker-dealer
participating in such sale being irrevocably instructed to remit the proceeds
from the exercise of the Option to the Company upon settlement of the sale of
the underlying Option Shares.
The Optionee may exercise part or all of the Option by tender to the
Company of a 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
2
<PAGE>
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 Option and the Option Shares have not been
registered under the Securities Act of 1933, as amended (the "Act"). Optionees
understands that, unless registered with the Securities and Exchange Commission
for sale to the public, all Option Shares acquired upon the exercise of the
Option 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.
Section 7. Default of Optionee. Should the Optionee at any time breach
any provision of this Agreement, the Option granted hereunder shall be 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.
3
<PAGE>
Section 8. Share Adjustments. If there is any change in the number of
shares of Series C Preferred Stock on account of the declaration of stock
dividends, recapitalization resulting in stock splits, or combinations or
exchanges of shares of Series C Preferred Stock, or otherwise, the number of
Option Shares available for purchase by the exercise of the Option, 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 Option is 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 instruments and do such other acts as may be necessary to carry out
the intent and purposes of this Agreement.
4
<PAGE>
(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.
5
<PAGE>
(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.
(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/ Alfred Sipper
----------------------------
Alfred Sipper
President
/s/ Hyacinth Steer
----------------------------
Hyacinth Steer
6
<PAGE>
STOCK OPTION AGREEMENT
THIS AGREEMENT dated as of the 5th day of September, 1997, (the "Grant
Date") is made and entered into by and between Bev-Tyme, Inc., a Delaware
corporation with its principal offices located at 800 Sheffield Avenue,
Brooklyn, New York (the "Company"), and Hartley Bernstein (the "Optionee").
W I T N E S S E T H:
WHEREAS, the Optionee desires to surrender and exchange options
previously granted to him by the Company on August 9, 1996, to purchase Ninety
Thousand (90,000) shares of the Company's Series C Preferred Stock ("Series C
Preferred Stock") with an exercise price of $1.00 per share and One Hundred
Thousand (100,000) shares of the Company's Common Stock, par value $.0001 per
share ("Common Stock") with an exercise price of $.25 per share, in exchange for
the issuance of options to purchase Two Hundred Thousand (200,000) shares of
Series C Preferred Stock with an exercise price of $.25 per share; and
WHEREAS, the Board of Directors has approved such exchange of 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 September 5, 2002 (the "Termination Date") (unless
terminated prior to such date pursuant to Section 2 below), Two Hundred Thousand
(200,000) shares of Series C Preferred Stock (the "Preferred Option Shares") at
an exercise price of $.25 per share (the "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.
2
<PAGE>
The Optionee may exercise part or all of the Options by tender to the
Company of a 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
3
<PAGE>
substance to the Company's counsel that such registration is not required.
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.
4
<PAGE>
(c) Further Assurances. Both parties hereto shall execute and deliver
such other 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.
5
<PAGE>
(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.
(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/ Alfred Sipper
----------------------------
Alfred Sipper
President
/s/ Hartley T. Bernstein
----------------------------
Hartley T. Bernstein
6
<PAGE>
STOCK OPTION AGREEMENT
THIS AGREEMENT dated as of the 10th day of September, 1997, (the "Grant
Date") is made and entered into by and between Bev-Tyme, Inc., a Delaware
corporation with its principal offices located at 800 Sheffield Avenue,
Brooklyn, New York (the "Company"), and Bernstein & Wasserman, LLP (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 the option to purchase certain shares of the
Company's Series C Convertible Preferred Stock, par value $.0001 per share
("Series C Preferred Stock") in lieu of payment for legal services rendered; and
WHEREAS, the Optionee desires to accept the grant of such option,
subject to the terms and conditions of this Agreement.
NOW, THEREFORE, the Company and the Optionee hereby agree as follows:
Section 1. Grant of Option. Subject to the provisions of this
Agreement, the Company hereby grants to the Optionee an option (the "Option") to
purchase from the Company at any time during the period commencing on the date
hereof through and including September 10, 2002 (the "Termination Date") Two
Hundred Thousand (200,000) shares of Series C Preferred Stock (the "Option
Shares") at an exercise price of $.10 per share (the "Exercise Price").
Section 2. Termination of Options. To the extent not exercised, the
Option shall terminate on the Termination Date.
<PAGE>
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 Option 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 Option 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 Option. The Option 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 Option is
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 this Option with the broker-dealer
participating in such sale being irrevocably instructed to remit the proceeds
from the exercise of the Option to the Company upon settlement of the sale of
the underlying Option Shares.
The Optionee may exercise part or all of the Option by tender to the
Company of a 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
2
<PAGE>
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 Option and the Option Shares have not been
registered under the Securities Act of 1933, as amended (the "Act"). Optionees
understands that, unless registered with the Securities and Exchange Commission
for sale to the public, all Option Shares acquired upon the exercise of the
Option 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.
Section 7. Default of Optionee. Should the Optionee at any time breach
any provision of this Agreement, the Option granted hereunder shall be 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.
3
<PAGE>
Section 8. Share Adjustments. If there is any change in the number of
shares of Series C Preferred Stock on account of the declaration of stock
dividends, recapitalization resulting in stock splits, or combinations or
exchanges of shares of Series C Preferred Stock, or otherwise, the number of
Option Shares available for purchase by the exercise of the Option, 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. 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 instruments and do such other acts as may be necessary to carry out
the intent and purposes of this Agreement.
4
<PAGE>
(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.
5
<PAGE>
(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.
(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/ Alfred Sipper
-----------------------------
Alfred Sipper
President
BERNSTEIN & WASSERMAN, LLP
By: /s/ Hartley T. Bernstein
-----------------------------
Hartley T. Bernstein
6
<PAGE>
BEV-TYME, INC.
800 SHEFFIELD AVENUE
BROOKLYN, NY 11207
September 2, 1997
Hartley T. Bernstein
950 Third Avenue
New York, NY 10022
Re: Consulting Agreement
Dear Mr. Bernstein:
This Agreement is to confirm our understanding with respect to the
rendering by you (the "Consultant") of certain consulting services to Bev-Tyme,
Inc. ("BTI"), upon the terms and conditions set forth below.
1. Payment by BTI. As full and total consideration for the services
provided by you to BTI, BTI hereby issues to you the option (the "Option") to
purchase 200,000 shares of BTI's Series C Preferred Stock for a period of five
(5) years at any time commencing on the date hereof at an exercise price of $.25
per share. A form of the Option is attached hereto as Exhibit A. In addition,
BTI agrees to register such shares for sale to the public as soon as
practicable. This Agreement may be terminated at any time by providing the other
party hereto with 90 days prior written notice.
2. Term of Agreement. The agreement shall be for a term of two (2)
years.
3. Consultant's Obligations. From time to time the Consultant agrees to
provide BTI with such consulting services as requested by BTI in connection with
acquisitions, divestitures, joint ventures and other strategic business
initiatives. In addition, the Consultant agrees to surrender for cancellation
options previously issued to him to purchase 75,000 shares of BTI's Series C
Preferred Stock exercisable at $2.00 per share.
4. Confidential Information Consultant acknowledges that all
information, documents, customer lists, patents, trademarks, copyrights,
materials, specifications, business strategies or any other ideas which directly
relate to the business of BTI (referred to herein as "Confidential Information")
whether prepared or generated by Consultant, or BTI pursuant to this Agreement
or otherwise in the possession or knowledge of Consultant prior to the date
hereof or coming into possession or knowledge of Consultant during the term of
this Agreement shall be the exclusive, confidential property of BTI, except to
the extent expressly authorized in writing by BTI for dissemination. From the
date of this Agreement through and including the twenty-fourth month following
the termination of this Agreement or any extension thereof (the "Restricted
Period"), Consultant shall not disclose any of such Confidential Information to
any third party without the prior written consent of BTI and shall take all
reasonable steps and actions necessary to maintain the confidentiality of such
Confidential Information.
<PAGE>
5. Status as Independent Contractor. Consultant's engagement pursuant
to this Agreement shall be as independent contractor and not as an employee,
officer or other agent of BTI. Neither party to this Agreement shall represent
or hold itself out to be the employer or employee of the other. Consultant
further acknowledges that the compensation provided herein is a gross amount of
compensation and that BTI will not withhold from such compensation any amounts
respective income taxes, social security payments or any other payroll taxes.
All such income taxes and payments shall be made or provided for by Consultant
and BTI shall have no responsibility or duties regarding such matters.
6. Miscellaneous. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York, without regard to
principles of conflicts of law, and the parties irrevocably agree to submit any
controversy or claim arising out of or relating to this Agreement to binding
arbitration conducted in the State of New York, City of New York, in accordance
with the rules of the American Arbitration Association in New York City. This
Agreement may be executed simultaneously in counterparts, each of which will be
deemed to be an original but all of which together will constitute one and the
same instrument. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect. This Agreement
contains the entire understanding of the parties hereto with respect to its
subject matter. This Agreement may be amended only by a written instrument duly
executed by the parties.
If this Agreement accurately reflects your understanding of our
agreement, kindly sign the enclosed copy of this letter on the space provided
below and return it to me at your earliest convenience.
Very truly yours,
BEV-TYME, INC.
/s/ Alfred Sipper
--------------------------
Alfred Sipper
President
Agreed to and Accepted as of
the Date First Written Above:
/s/ Hartley T. Bernstein
- -----------------------------
Hartley Bernstein
<PAGE>
Exhibit 23.2
------------
CONSENT OF CERTIFIED PUBLIC ACCOUNTANTS
To the Board of Directors and Stockholders of
Bev-Tyme, Inc. and Subsidiaries
We hereby consent to incorporation by reference in the Registration
Statement of Form S-8 of Bev-Tyme, Inc. and Subsidiaries of our report dated
March 26, 1997, relating to the consolidated financial statements of Bev-Tyme,
Inc. and Subsidiaries included in the Annual Report (Form 10-KSB) for the year
ended December 31, 1996.
Our report dated March 26, 1997, contains an explanatory paragraph
that states that the Company's recurring losses and use of cash for operations
raise substantial doubt about its ability to continue as a going concern. The
consolidated financial statements do not include any adjustments that might
result from the outcome of this uncertainty.
/s/ Moore Stephens, P.C.
----------------------------
MOORE STEPHENS, P.C.
Certified Public Accountants
Cranford, New Jersey
September 11, 1997
