1995 Stock Option Plan - Buffalo Wild Wings Inc.
FIRST AMENDED AND RESTATED
BUFFALO WILD WINGS, INC.
1995 STOCK OPTION PLAN
SECTION 1.
DEFINITIONS
As used herein, the following terms shall have the meanings indicated
below:
(a) "Affiliates" shall mean a Parent or Subsidiary of the Company.
(b) "Committee" shall mean a Committee of two or more directors who shall
be appointed by and serve at the pleasure of the Board. In the event the
Company's securities are registered pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended, each of the members of the
Committee shall be a "Non-Employee Director" within the meaning of Rule
16b-3, or any successor provision, as then in effect, of the General Rules
and Regulations under the Securities Exchange Act of 1934 as amended.
(c) The "Company" shall mean Buffalo Wild Wings, Inc., a Minnesota
corporation.
(d) "Fair Market Value" shall mean (i) if such stock is reported in the
national market system or is listed upon an established stock exchange or
exchanges, the reported closing price of such stock in such national market
system or on such stock exchange or exchanges on the date the option is
granted or, if no sale of such stock shall have occurred on that date, on
the next preceding day on which there was a sale of stock; (ii) if such
stock is not so reported in the national market system or listed upon an
established stock exchange, the average of the closing "bid" and "asked"
prices quoted by a recognized specialist in the Common Stock of the Company
on the date the option is granted, or if there are no quoted "bid" and
"asked" prices on such date, on the next preceding date for which there are
such quotes; or (iii) if such stock is not publicly traded as of the date
the option is granted, the per share value as determined by the Board, or
the Committee, in its sole discretion by applying principles of valuation
with respect to all such options.
(e) The "Internal Revenue Code" is the Internal Revenue Code of 1986, as
amended from time to time.
(f) "Option Stock" shall mean Common Stock of the Company (subject to
adjustment as described in Section 12) reserved for options pursuant to
this Plan.
(g) The "Optionee" means an employee of the Company or any Subsidiary to
whom an incentive stock option has been granted pursuant to Section 9, or a
consultant or
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advisor to or director, employee or officer of the Company or any
Subsidiary to whom a nonqualified stock option has been granted pursuant to
Section 10.
(h) "Parent" shall mean any corporation which owns, directly or indirectly
in an unbroken chain, fifty percent (50%) or more of the total voting power
of the Company's outstanding stock.
(i) The "Plan" means the bw-3, Inc. 1995 Stock Option Plan, formerly known
as the JMS Associates, Inc. 1995 Stock Option Plan, as amended from time to
time, including the form of Option Agreements as they may be modified by
the Board from time to time.
(j) A "Subsidiary" shall mean any corporation of which fifty percent (50%)
or more of the total voting power of outstanding stock is owned, directly
or indirectly in an unbroken chain, by the Company.
SECTION 2.
PURPOSE
The purpose of the Plan is to promote the success of the Company and its
Subsidiaries by facilitating the employment and retention of competent personnel
and by furnishing incentive to officers, directors, employees, consultants and
advisors, upon whose efforts the success of the Company and its Subsidiaries
will depend to a large degree.
It is the intention of the Company to carry out the Plan through the
granting of stock options which will qualify as "Incentive Stock Options" under
the provisions of Section 422 of the Internal Revenue Code, and through the
granting of "Nonqualified Stock Options" pursuant to Section 10 of this Plan.
Adoption of this Plan shall be and is expressly subject to the condition of
approval by the shareholders of the Company within twelve (12) months before or
after the adoption of the Plan by the Board of Directors.
SECTION 3.
EFFECTIVE DATE OF PLAN
The Plan became effective as of its date of adoption by the Board of
Directors of the Company on April 18, 1995.
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SECTION 4.
ADMINISTRATION
The Plan shall be administered by the Board of Directors of the Company
(the "Board") or, to the extent empowered by the Board, by a Stock Option
Committee (the "Committee") and as defined in Section 1(f) of this Plan, which
may be appointed by the Board from time to time (the Board and Committee are
sometimes hereinafter referred to as the "Administrator"). The Administrator
shall have all of the powers vested in it under the provisions of the Plan,
including but not limited to exclusive authority (where applicable and within
the limitations described herein) to determine, in its sole discretion, whether
an incentive stock option or nonqualified stock option shall be granted, the
individuals to whom, and the time or times at which, options shall be granted,
the number of shares subject to each option and the option price and terms and
conditions of each option. The Administrator shall have full power and
authority to administer and interpret the Plan, to make and amend rules,
regulations and guidelines for administering the Plan, to prescribe the form and
conditions of the respective stock option agreements (which may vary from
Optionee to Optionee) evidencing each option and to make all other
determinations necessary or advisable for the administration of the Plan. The
Administrator's interpretation of the Plan and all actions taken and
determinations made by the Administrator pursuant to the power vested in it
hereunder, shall be conclusive and binding on all parties concerned. No member
of the Board or the Committee shall be liable for any action taken or
determination made in good faith in connection with the administration of the
Plan.
In the event the Board appoints a Committee as provided hereunder, any
action of the Committee with respect to the administration of the Plan shall be
taken pursuant to a majority vote of the Committee members or pursuant to the
written resolution of all Committee members.
SECTION 5.
PARTICIPANTS
The Administrator shall from time to time, at its discretion and without
approval of the shareholders, designate those employees, directors, officers,
directors, consultants, and advisors of the Company or of any subsidiary to whom
nonqualified stock options shall be granted under this Plan; provided, however,
that consultants or advisors shall not be eligible to receive stock options
hereunder unless such consultant or advisor renders bona fide services to the
Company or Subsidiary and such services are not in connection with the offer or
sale of securities in a capital raising transaction. The Administrator shall,
from time to time, at its discretion and without approval of the shareholders,
designate those employees of the Company or any Subsidiary to whom incentive
stock options shall be granted under this Plan. The Administrator may grant
additional incentive stock options or nonqualified stock options under this Plan
to some or all participants then holding options or may grant options solely or
partially to new participants. In designating participants, the Administrator
shall also determine the number of shares to be optioned to each such
participant. The Board may from time to time designate individuals as being
ineligible to participate in the Plan.
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SECTION 6.
STOCK
The Stock to be optioned under this Plan shall consist of authorized but
unissued shares of Common Stock. Two Hundred Fifty Thousand (250,000) shares of
Common Stock shall be reserved and available for options under the Plan, subject
to adjustment as provided in Section 12 of the Plan. In the event that any
outstanding option granted under this Plan for any reason expires or is
terminated prior to the exercise thereof, the shares of Common Stock allocable
to the unexercised portion of such option shall continue to be reserved for
options under the Plan and may be optioned hereunder.
SECTION 7.
DURATION OF PLAN
Incentive stock options may be granted pursuant to the Plan from time to
time during a period of ten (10) years from April 18, 1995, the date the Plan
was approved by the Board of Directors. Nonqualified stock options may be
granted pursuant to the Plan from time to time after the date the Plan is
adopted by the Board of Directors and until the Plan is discontinued or
terminated by the Board.
SECTION 8.
PAYMENT
Subject to the approval of the Administrator, Optionees may pay for shares
upon exercise of options granted pursuant to this Plan with cash, certified
check, Common Stock of the Company valued at such stock's then Fair Market
Value, or such other form of payment as may be authorized by the Administrator.
The Administrator may, in its sole discretion, limit the forms of payment
available to the Optionee and may exercise such discretion any time prior to the
termination of the option granted to the Optionee or upon any exercise of the
Option by the Optionee. With respect to payment in the form of Common Stock of
the Company, the Administrator may adopt such rules as it deems necessary to
assure compliance with Rule 16b-3, or any successor provision, as then in
effect, of the General Rules and Regulations under the Securities Exchange Act
of 1934, if applicable.
SECTION 9.
TERMS AND CONDITIONS OF INCENTIVE STOCK OPTIONS
Each incentive stock option granted pursuant to the Plan shall be evidenced
by a written stock option agreement (the "Option Agreement"). The Option
Agreement shall be in such form
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as may be approved from time to time by the Administrator and may vary from
Optionee to Optionee; provided, however, that each Optionee and each Option
Agreement shall comply with and be subject to the following terms and
conditions:
(a) NUMBER OF SHARES AND OPTION PRICE. The Option Agreement shall state
the total number of shares covered by the incentive stock option. The
option price per share shall not be less than one hundred percent (100%) of
the Fair Market Value of the Common Stock per share on the date the
Administrator grants the option; provided, however, that, if an Optionee
owns stock possessing more than ten percent (10%) of the total combined
voting power of all classes of stock of the Company or of its Parent or any
Subsidiary, the option price per share of an incentive stock option granted
to such Optionee shall not be less than one hundred ten percent (110%) of
the Fair Market Value of the Common Stock per share on the date of the
grant of the option.
(b) TERM AND EXERCISABILITY OF INCENTIVE STOCK OPTION. The term during
which any incentive stock option granted under the Plan may be exercised
shall be established in each case by the Administrator, but in no event
shall any incentive stock option be exercisable during a term of more than
ten (10) years after the date on which it is granted; provided, however,
that if an Optionee owns stock possessing more than 10% of the total
combined voting power of all classes of stock of the Company or of its
Parent or any Subsidiary, then in no event shall any incentive stock option
be exercisable during a term of more than five years after the date on
which it is granted. The Option Agreement shall state when the incentive
stock option becomes exercisable and shall also state the maximum term
during which the option may be exercised. In the event an incentive stock
option is exercisable immediately, the manner of exercise of the option in
the event it is not exercised in full immediately shall be specified in the
Option Agreement. The Administrator may accelerate the exercise date of
any incentive stock option granted hereunder which is not immediately
exercisable as of the date of grant.
(c) OTHER PROVISIONS. The Option Agreement authorized under this Section
9 shall contain such other provisions as the Administrator shall deem
advisable. Any such Option Agreement shall contain such limitations and
restrictions upon the exercise of the option as shall be necessary to
ensure that such option will be considered an "Incentive Stock Option" as
defined in Section 422 of the Internal Revenue Code or to conform to any
change therein.
SECTION 10.
TERMS AND CONDITIONS OF NONQUALIFIED STOCK OPTIONS
Each nonqualified stock option granted pursuant to the Plan shall be
evidenced by a written Option Agreement. The Option Agreement shall be in such
form as may be approved from time to time by the Administrator, and may vary
from Optionee to Optionee; provided,
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however, that each Optionee and each Option Agreement shall comply with and be
subject to the following terms and conditions:
(a) NUMBER OF SHARES AND OPTION PRICE. The Option Agreement shall state
the total number of shares covered by the nonqualified stock option. unless
otherwise determined by the Administrator, the option price per share shall
be equal to one hundred percent (100%) of the Fair Market Value of the
Common Stock per share on the date the Administrator grants the option.
(b) TERM AND EXERCISABILITY OF NONQUALIFIED STOCK OPTION. The term during
which any nonqualified stock option granted under the Plan may be exercised
shall be established in each case by the Administrator. The Option
Agreement shall state when the nonqualified stock option becomes
exercisable and shall also state the maximum term during which the option
may be exercised. In the event a nonqualified stock option is exercisable
immediately, the manner of exercise of the option in the event it is not
exercised in full immediately shall be specified in the stock option
agreement. The Administrator may accelerate the exercise date of any
nonqualified stock option granted hereunder which is not immediately
exercisable as of the date of grant.
(c) WITHHOLDING. The Company shall be entitled to withhold and deduct
from future wages of the Optionee all legally required amounts necessary to
satisfy any and all federal, state and local withholding and employment-
related taxes attributable to the Optionee's exercise of a nonqualified
stock option. In the event the Optionee is required under the Option
Agreement to pay to the Company, or make arrangements satisfactory to the
Company respecting payment of, any federal, state, local or other taxes
required by law to be withheld with respect to the option's exercise, the
Administrator may, in its discretion and pursuant to such rules as it may
adopt, permit the Optionee to satisfy such obligation, in whole or in part,
by electing to have the Company withhold shares of Common Stock otherwise
issuable to Optionee as a result of the option's exercise equal to the
amount required to be withheld for tax purposes. Any stock elected to be
withheld shall be valued at its "Fair Market Value," as of the date the
amount of tax to be withheld is determined under applicable tax law. The
Optionee's election to have shares withheld for this purpose shall be made
on or before the date the option is exercised, or if later, the date that
the amount of tax to be withheld is determined under applicable tax law.
Such election shall also comply with such rules as may be adopted by the
Administrator to assure compliance with Rule 16b-3, as then in effect, of
the General Rules-and Regulations under the Securities Exchange Act of
1934, if applicable.
(d) OTHER PROVISIONS. The Option Agreement authorized under this Section
10 shall contain such other provisions as the Administrator shall deem
advisable.
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SECTION 11.
TRANSFER 'OF OPTION
No incentive stock option shall be transferable, in whole or in part, by
the Optionee other than by will or by the laws of descent and distribution and,
during the Optionee's lifetime, the option may be exercised only by the
Optionee. If the Optionee shall attempt any transfer of any incentive stock
option granted under the Plan during the Optionee's lifetime, such transfer
shall be void and the incentive stock option, to the extent not fully exercised,
shall terminate.
The Administrator may, in its sole discretion, permit the Optionee to
transfer any or all nonqualified stock options to any member of the Optionee's
"immediate family" as such term is defined in Rule 16a-1(e) promulgated under
the Securities Exchange Act of 1934, or any successor provision, or to one or
more trusts whose beneficiaries are members of such Optionee's "immediate
family" or partnerships in which such family members are the only partners;
provided, however, that the Optionee receives no consideration for the transfer
and such transferred nonqualified stock option shall continue to be subject to
the same terms and conditions as were applicable to such -nonqualified stock
option immediately prior to its transfer.
SECTION 12.
RECAPITALIZATION, SALE, MERGER, EXCHANGE
CONSOLIDATION OR LIOUIDATION
In the event of an increase or decrease in the number of shares of Common
Stock resulting from a subdivision or consolidation of shares or the payment of
a stock dividend or any other increase or decrease in the number of shares of
Common Stock effected without receipt of consideration by the Company, the
number of shares of Common Stock covered by each outstanding option and the
price per share thereof shall be equitably adjusted by the Board of Directors to
reflect such change. Additional shares which may be credited pursuant to such
adjustment shall be subject to the same restrictions as are applicable to the
shares with respect to which the adjustment relates.
Unless otherwise provided in the stock option agreement, in the event of
the sale by the Company of substantially all of its assets and the consequent
discontinuance of its business, or in the event of a merger, consolidation,
exchange, reorganization, reclassification, extraordinary dividend, divestiture
(including a spin-off) or liquidation of the Company (collectively referred to
as a "transaction"), the Board may provide for one or more of the following:
(a) the equitable acceleration of the exercisability of any outstanding
options hereunder;
(b) the complete termination of this Plan and cancellation of outstanding
options not exercised prior to a date specified by the Board (which date
shall give Optionees a
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reasonable period of time in which to exercise the options prior the
effectiveness of such transaction);
(c) that Optionees holding outstanding incentive or nonqualified options
shall receive, with respect to each share of Option Stock subject to such
options, as of the effective date of any such transaction, cash in an
amount equal to the excess of the Fair Market Value of such option stock on
the date immediately preceding the effective date of such transaction over
the option price per share of such options; provided that the Board may, in
lieu of such cash payment, distribute to such Optionees shares of stock of
the Company or shares of stock of any corporation succeeding the company by
reason of such transaction, such shares having a value equal to the cash
payment herein; or
(d) the continuance of the Plan with respect to the exercise of options
which were outstanding as of the date of adoption by the Board of such plan
for such transaction and provide to Optionees holding such options the
right to exercise their respective options as to an equivalent number of
shares of stock of the corporation succeeding the Company by reason of such
transaction.
The Board may restrict the rights of or the applicability of this Section 12 to
the extent necessary to comply with Section 16(b) of the Securities Exchange Act
of 1934, the Internal Revenue Code or any other applicable law or regulation.
The grant of an option pursuant to the Plan shall not limit in any way the right
or power of the Company to make adjustments, reclassifications, reorganizations
or changes of its capital or business structure or to merge, exchange or
consolidate or to dissolve, liquidate, sell or transfer all or any part of its
business or assets.
SECTION 13.
INVESTMENT PURPOSE
No shares of Common Stock shall be issued pursuant to the Plan unless and
until there has been compliance, in the opinion of Company's counsel, with all
applicable legal requirements, including without limitation, those relating to
securities laws and stock exchange listing requirements. As a condition to the
issuance of Common Stock to Optionee, the Administrator may require Optionee to
(a) represent that the shares of Common Stock are being acquired for investment
and not resale and to make such other representations as the Administrator shall
deem necessary or appropriate to qualify the issuance of the shares as exempt
from the Securities Act of 1933 and any other applicable securities laws, and
(b) represent that Optionee shall not dispose of the shares of Common Stock in
violation of the Securities Act of 1933 or any other applicable securities laws.
Company reserves the right to place a legend on any stock certificate issued
upon exercise of an option granted pursuant to the Plan to assure compliance
with this Section 13.
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SECTION 14.
RIGHTS AS A SHAREHOLDER
An Optionee (or the Optionee's successor or successors) shall have no
rights as a shareholder with respect to any shares covered by an option until
the date of the issuance of a stock certificate evidencing such shares (except
as otherwise provided in Section 12 above). No adjustment shall be made for
dividends (ordinary or extraordinary, whether in cash, securities or other
property), distributions or other rights for which the record date is prior to
the date such stock certificate is actually issued (except as otherwise provided
in Section 12).
SECTION 15.
AMENDMENT OF THE PLAN
The Board of Directors of the Company may from time to time, insofar as
permitted by law, suspend or discontinue the Plan or revise or amend it in any
respect; provided, however, that no such revision or amendment shall impair the
terms and conditions of any option which is outstanding on the date of such
revision or amendment to the material detriment of the Optionee without the
consent of the Optionee. Notwithstanding the foregoing, no such revision or
amendment shall, (i) increase the number of shares subject to the Plan except as
provided in Section 12 hereof, (ii) change the designation of the class of
employees eligible to receive options, (iii) decrease the price at which options
may be granted, or (iv) increase the benefits accruing to Optionees under the
Plan, unless such revision or amendment is approved by the shareholders of the
Company. Furthermore, the Plan may not, without the approval of the
shareholders, be amended in any manner that will cause incentive stock options
to fail to meet the requirements of "Incentive Stock Options" as defined in
Section 422 of the Internal Revenue Code.
SECTION 16.
NO OBLIGATION TO EXERCISE OPTION
The granting of an option shall impose no obligation upon the Optionee to
exercise such option. Further, the granting of an option hereunder shall not
impose upon the Company or any Subsidiary any obligation to retain the Optionee
in its employ for any period.
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BUFFALO WILD WINGS, INC.
INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT, made this _____ day of ________, 1998, by and between
BUFFALO WILD WINGS, INC., a Minnesota corporation (the "Company"), and
________________ (the "Optionee").
WITNESSETH:
WHEREAS, the Optionee on the date hereof is an employee of the Company or a
Subsidiary of the Company; and
WHEREAS, to induce the Optionee to continue in its employ and to further
the Optionee's efforts in its behalf, the Company desires to grant to the
Optionee an incentive stock option to purchase shares of its Common Stock;
WHEREAS, the Company's Board of Directors has adopted a stock option plan
providing for the grant of incentive stock options known as the "bw-3, Inc. 1995
Stock Option Plan" (hereinafter referred to as the "Plan"); and
WHEREAS, on the date hereof, the Company's Board of Directors authorized
the grant of this incentive stock to the Optionee;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the Company and the Optionee hereby agree as follows:
1. GRANT OF OPTION. The Company hereby grants to the Optionee, on the
date of this Agreement, ("Date of Grant") the option to purchase ______________
shares of Common Stock of the Company (the "Option Stock") subject to the terms
and conditions herein contained, and subject only to adjustment in such number
of shares as provided in Section 12 of the Plan. To the extent permitted under
Section 422(d) of the Internal Revenue Code, the option granted herein is
intended by the parties to be, and shall be treated as, an incentive stock
option as such term is defined under Section 422 of the Internal Revenue Code.
2. OPTION PRICE. During the term of this option, the purchase price for
the shares of Option Stock granted herein is _______ per share, subject only to
adjustment of such price as provided in Section 12 of the Plan.
3. TERM OF OPTION. The term during which this option may be exercised
expires at the close of business on _______, unless terminated earlier under the
provisions of Paragraphs 10, 11 or 12 below. This option shall not be
exercisable during the first year after the Date of Grant. Thereafter, on each
succeeding anniversary of the Date of Grant, this Option shall become
exercisable to the extent of twenty-five percent (25%) of the aggregate number
of shares specified in paragraph 1, until the earlier of: (i) the time the
option shall have become exercisable to the extent of one hundred percent (100%)
of the total number of shares granted, and (ii) the
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termination of the option as provided herein. Once the option becomes
exercisable to the extent of one hundred percent (100%) of the aggregate number
of shares specified in Paragraph 1, the Optionee may continue to exercise this
option under the terms and conditions of this Agreement until the termination of
the option as provided herein. If Optionee does not purchase upon an exercise
of this option the full number of shares which Option is then entitled to
purchase, Optionee may purchase upon any subsequent exercise prior to this
option's termination such previously unpurchased shares in addition to those
Optionee is otherwise entitled to purchase. If this option has been granted
prior to approval of the Plan by the Company's shareholders, this option shall
not be exercisable until such approval is obtained.
4. PERSONAL EXERCISE BY OPTIONEE. This option shall, during the lifetime
of the Optionee, be exercisable only by said Optionee and shall not be
transferable by the Optionee, in whole or in part, other than by will or by the
laws of descent and distribution.
5. MANNER OF EXERCISE OF OPTION. This option is to be exercised by the
Optionee (or by the Optionee's successor or successors) by giving written notice
to the Company of an election to exercise such option. Such notice shall
specify the number of shares to be purchased hereunder and shall specify a date
(not more than 30 calendar days and not less than 10 calendar days from the date
of delivery of the notice to the Company) on which the Optionee shall deliver
payment of the full purchase price for the shares being purchased and the
Company shall deliver certificates to the Optionee representing the shares so
purchased. Such notice shall be delivered to the Company at its principal place
of business. An option shall be considered exercised at the time the Company
receives such notice. Upon receipt of such notice and subject to the provisions
of Paragraph 9 below, the Company shall, on the date specified in such notice
and upon payment by the Optionee of the required purchase price, deliver to the
Optionee certificates for the shares so purchased. Payment for shares of Option
Stock may be made in the form of cash, certified check, Common Stock of the
Company, or any combination thereof. Any stock so tendered as part of such
payment shall be valued at its then "fair market value" as provided in the Plan.
6. RIGHTS AS A SHAREHOLDER. The Optionee or a transferee of this option
shall have no rights as a shareholder with respect to any shares covered by this
option until the date of the issuance of a stock certificate for such shares.
No adjustment shall be made for dividends (ordinary or extraordinary, whether in
cash, securities or other property), distributions or other rights for which the
record date is prior to the date such stock certificate is issued, except as
provided in Section 12 of the Plan.
7. STOCK OPTION PLAN. The option evidenced by this Agreement is granted
pursuant to the Plan, a copy of which Plan is attached hereto or has been made
available to the Optionee and is hereby made a part of this Agreement. This
Agreement is subject to and in all respects limited and conditioned as provided
in the Plan. The Plan governs this option and the Optionee, and in the event of
any question as to the construction of this Agreement or of a conflict between
the Plan and this Agreement, the Plan shall govern, except as the Plan otherwise
provides.
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8. WITHHOLDING TAXES ON DISQUALIFYING DISPOSITION BY OPTIONEE. In the
event of a disqualifying disposition of Option Stock by Optionee, Optionee
hereby agrees to inform the Company of such disposition. Upon notice of a
disqualifying disposition or upon independently learning of such a disposition,
the Company shall withhold from whatever payments are due Optionee appropriate
state and federal income taxes as required by law. In the event the Company is
unable to withhold such taxes, for whatever reason, Optionee hereby agrees to
pay to the Company an amount equal to the amount the Company would otherwise be
required to withhold under state or federal law.
9. INVESTMENT PURPOSE. The Company requires as a condition to the grant
and exercise of this option that any stock acquired pursuant to this option be
acquired for only investment if, in the opinion of counsel for the Company, such
is required or deemed advisable under securities laws or any other applicable
law, regulation or rule of any government or governmental agency. In this
regard, if requested by the Company, the Optionee, prior to the acquisition of
any shares pursuant to this option, shall execute an investment letter to the
effect that the Optionee is acquiring shares pursuant to the option for
investment purposes only and not with the intention of making any distribution
of such shares and will not dispose of the shares in violation of the applicable
federal and state securities laws.
10. TERMINATION OF EMPLOYMENT (OTHER THAN DISABILITY OR DEATH). If
Optionee ceases to be an employee of the Company or any Subsidiary for any
reason (including without limitation, termination of employment as a result of
the reorganization, sale or liquidation by the Company or the Subsidiary which
employs Optionee where Optionee does not thereafter continue as an employee of
the Company or other Subsidiary), other than because of disability or death,
this Option shall completely terminate on the earlier of (I) the close of
business on the three month anniversary date of such termination of employment,
and (ii) the expiration date of this Option stated in Paragraph 3 above. In
such period following such termination of employment, this Option shall be
exercisable only to the extent the Option was exercisable on the date of the
Optionee's termination of employment but had not previously been exercised. To
the extent this Option was not exercisable upon such termination of employment,
or if the Optionee does not exercise the Option within the term specified in
this Paragraph, all rights of the Optionee under this Option shall be forfeited.
11. DEATH OF OPTIONEE. If the Optionee dies (I) while in the employ of
the Company or any Subsidiary, or (ii) within the period of three months after
the termination of his/her employment with the Company or any Subsidiary as
provided in Paragraph 10, or (iii) within one year after termination of
employment because of disability as provided in Paragraph 12, this option shall
terminate on the earlier of (I) the close of business on the one year
anniversary date of the Optionee's death, and (ii) this option's originally
stated expiration date. In such period following the Optionee's death, this
option may be exercised only by the person or persons to whom the Optionee's
rights under this option shall have passed by the Optionee's will or by the laws
of descent and distribution, and only to the extent the option was exercisable
on the date of death but had not previously been exercised.
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12. TERMINATION OF EMPLOYMENT BY REASON OF DISABILITY. If Optionee ceases
to be an employee of the Company or any Subsidiary before the original stated
expiration of this option and such termination of employment is due to
disability (as defined in Section 22 (3)(3) of the Internal Revenue Code of
1986, as amended),; this option shall terminate on the earlier of (I) one year
after the date of such termination of employment due to disability and (ii) this
option's originally stated expiration date. In such period following such
termination of employment due to disability, this option shall be exercisable
only to the extent that it was exercisable on the date of termination of
employment due to disability but had not previously been exercised.
13. RECAPITALIZATION, SALES, MERGERS, EXCHANGES, CONSOLIDATIONS,
LIQUIDATION. In the event of a stock dividend or stock split, the number of
shares of Option Stock and option exercise price shall be adjusted as provided
in Section 12 of the Plan. Similarly, in the event of a sale, merger, exchange,
consolidation or liquidation of the Company, this option shall be adjusted as
provided in Section 12 of the Plan.
14. SCOPE OF AGREEMENT. This Agreement shall bind and inure to the
benefit of the Company and its successors and assigns and the Optionee and any
successor or successors of the Optionee permitted by Paragraph 4 above.
IN WITNESS WHEREOF, the Company and the Optionee have executed this
Agreement in the manner appropriate to each, as of the day and year first above
written.
BUFFALO WILD WINGS, INC.
By
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President
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Optionee
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<PAGE>
BUFFALO WILD WINGS, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, made this ____ day of ___________ by and between BUFFALO
WILD WINGS, INC., a Minnesota corporation (the "Company"), and (the
"Optionee");
WITNESSETH:
WHEREAS, the Optionee on the date hereof is a director of the Company; and
WHEREAS, to induce the Optionee to further the Optionee's efforts in its
behalf, the Company desires to grant to the Optionee a nonqualified stock option
to purchase shares of its Common Stock;
WHEREAS, the Company's Board of Directors has adopted a stock option plan
providing for the grant of nonqualified stock options known as the "First
Amended and Restated bw-3, Inc. 1995 Stock Option Plan" (hereinafter referred to
as the "Plan"); and
WHEREAS, on the date hereof, the Company's Board of Directors authorized
the grant of this nonqualified stock option to the Optionee;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the Company and the Optionee hereby agree as follows:
1. GRANT OF OPTION. The Company hereby grants to the Optionee, on the
date of this Agreement, the option to purchase shares of
Common Stock of the Company (the "Option Stock") subject to the terms and
conditions herein contained, and subject only to adjustment in such number of
shares as provided in Section 12 of the Plan. The parties intend that the
option granted herein shall not be, and shall not be treated as, an incentive
stock option as such term is defined under Section 422 of the Internal Revenue
Code.
2. OPTION PRICE. During the term of this option, the purchase price for
the shares of Option Stock granted herein is ____ per share, subject only to
adjustment of such price as provided in Section 12 of the Plan.
3. TERM OF OPTION. The term during which this option may be exercised
expires at the close of business on , unless terminated earlier under
the provisions of Paragraphs 10, 11 or 12 below. This option shall not be
excercisable until the anniversary date of the execution of this Agreement or
until the date of the next Shareholders' meeting for the election of directors,
whichever occurs first. Upon such date, and thereafter, until this option
expires or is terminated as provided herein, this option shall be exercisable to
the extent of one hundred (100%) of the aggregate number of shares specified in
paragraph 1. If Optionee does not purchase upon an exercise of this option the
full number of shares which Optionee is then
<PAGE>
entitled to purchase, Optionee may purchase upon any subsequent exercise prior
to this option's termination such previously unpurchased shares in addition to
those Optionee is otherwise entitled to purchase. If this option has been
granted prior to approval of the Plan by the Company's shareholders, this option
shall not be exercisable until such approval is obtained.
4. PERSONAL EXERCISE BY OPTIONEE. This option shall, during the lifetime
of the Optionee, be exercisable only by said Optionee and shall not be
transferable by the Optionee, in whole or in part, other than by will or by the
laws of descent and distribution.
5. MANNER OF EXERCISE OF OPTION. This option is to be exercised by the
Optionee (or by the Optionee's successor or successors) by giving written notice
to the Company of an election to exercise such option. Such notice shall
specify the number of shares to be purchased hereunder and shall specify a date
(not more than 30 calendar days and not less than 10 calendar days from the date
of delivery of the notice to the Company) on which the Optionee shall deliver
payment of the full purchase price for the shares being purchased and the
Company shall deliver certificates to the Optionee representing the shares so
purchased. Such notice shall be delivered to the Company at its principal place
of business. An option shall be considered exercised at the time the Company
receives such notice. Upon receipt of such notice and subject to the provisions
of Paragraph 9 below, the Company shall, on the date specified in such notice
and upon payment by the Optionee of the required purchase price, deliver to the
Optionee certificates for the shares so purchased. Payment for shares of Option
Stock may be made in the form of cash, certified check, Common Stock of the
Company, or any combination thereof. Any stock so tendered as part of such
payment shall be valued at its then "fair market value" as provided in the Plan.
6. RIGHTS AS A SHAREHOLDER. The Optionee or a transferee of this option
shall have no rights as a shareholder with respect to any shares covered by this
option until the date of the issuance of a stock certificate for such shares.
No adjustment shall be made for dividends (ordinary or extraordinary, whether in
cash, securities or other property), distributions or other rights for which the
record date is prior to the date such stock certificate is issued, except as
provided in Section 12 of the Plan.
7. STOCK OPTION PLAN. The option evidenced by this Agreement is granted
pursuant to the Plan, a copy of which Plan is attached hereto or has been made
available to the Optionee and is hereby made a part of this Agreement. This
Agreement is subject to and in all respects limited and conditioned as provided
in the Plan. The Plan governs this option and the Optionee, and in the event of
any question as to the construction of this Agreement or of a conflict between
the Plan and this Agreement, the Plan shall govern, except as the Plan otherwise
provides.
8. WITHHOLDING TAXES. In order to permit the Company to receive a tax
deduction in connection with the exercise of this option, the Optionee agrees
that as a condition to any exercise of this option, the Optionee will also pay
to the Company, or make arrangements satisfaction, to the Company regarding
payment of any federal, state, local or other taxes required by law to be
withheld with respect to the option's exercise.
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<PAGE>
9. INVESTMENT PURPOSE. The Company requires as a condition to the grant
and exercise of this option that any stock acquired pursuant to this option be
acquired for only investment if, in the opinion of counsel for the Company, such
is required or deemed advisable under securities laws or any other applicable
law, regulation or rule of any government or governmental agency. In this
regard, if required by the Company, the Optionee, prior to the acquisition of
any shares pursuant to this option, shall execute an investment letter to the
effect that the Optionee is acquiring shares pursuant to the option for
investment purposes only and not with the intention of making any distribution
of such shares and will not dispose of the shares in violation of the applicable
federal and state securities laws.
10. TERMINATION OF EMPLOYMENT (OTHER THAN DISABILITY OR DEATH). If
Optionee ceases to be a director of the Company or any Subsidiary for any reason
(including without limitation, termination as a director as a result of the
reorganization, sale or liquidation by the Company or the Subsidiary or which
Optionee is a director where Optionee does not thereafter continue as a director
of the Company or another Subsidiary), other than because of disability or
death, this option shall completely terminate on the earlier of (i) the close of
business on the three month anniversary date of such termination as a director,
and (ii) the expiration date of this option stated in Paragraph 3 above. In
such period following such termination as a director, this option shall be
exercisable only to the extent the option was exercisable on the date of the
Optionee's termination as a director but had not previously been exercised. To
the extent this option was not exercisable upon such termination as a director,
or if the Optionee does not exercise the option within the term specified in
this paragraph, all rights of the Optionee under this option shall be forfeited.
11. DEATH OF OPTIONEE. If the Optionee dies (i) while a director of the
Company or any Subsidiary, or (ii) within the period of three months after the
termination as a director with the Company or any Subsidiary as provided in
Paragraph 10, or (iii) within one year after the termination as a director
because of disability as provided in Paragraph 12, this option shall terminate
on the earlier of (i) the close of business on the one year anniversary date of
the Optionee's death, and (ii) this option's originally stated expiration date.
In such period following the Optionee's death, this option may be exercised only
by the person or persons to whom the Optionee's rights under this option shall
have passed by the Optionee's will or by the laws of descent and distribution,
and only to the extent the option was exercisable on the date of death but had
not previously been exercised.
12. TERMINATION OF EMPLOYMENT BY REASON OF DISABILITY. If Optionee ceases
to be a director of the Company or any Subsidiary before the original stated
expiration of this option and such termination as a director is due to
disability (as defined in Section 22(e)(3) of the Internal Revenue Code of 1986,
as amended), this option shall terminate on the earlier of (i) one year after
the date of such termination as a director due to disability and (ii) this
option's originally stated expiration date. In such period following such
termination as a director, this option shall be exercisable only to the extent
that it was exercisable on the date of termination of employment due to
disability but had not previously been exercised.
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<PAGE>
13. RECAPITALIZATION, SALES, MERGERS, EXCHANGES, CONSOLIDATIONS,
LIQUIDATION. In the event of a stock dividend or stock split, the number of
shares of Option Stock and option exercise price shall be adjusted as provided
in Section 12 of the Plan. Similarly, in the event of a sale, merger, exchange,
consolidation or liquidation of the Company, this option shall be adjusted as
provided in Section 12 of the Plan.
14. SCOPE OF AGREEMENT. This Agreement shall bind and inure to the
benefit of the Company and its successors and assigns and the Optionee and any
successor or successors of the Optionee permitted by Paragraph 4 above.
BUFFALO WILD WINGS, INC.
By
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President
---------------------------------------------
Optionee
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