EXHIBIT 10.15
OPTION: E-1
FOUNDERS FOOD & XXXXXXX LTD.
NONQUALIFIED STOCK OPTION AGREEMENT
PURSUANT TO 1997 STOCK OPTION PLAN
This AGREEMENT is dated this 14th day of December, 1999, and is entered
into by and between Founders Food & Xxxxxxx Ltd., a Minnesota corporation (the
"Company"), and Xxxxxx X. Xxxxxxxxx (the "Optionee"). Unless otherwise defined
herein, certain capitalized terms shall have the meaning set forth in the
Company's 1997 Stock Option Plan.
W I T N E S S E T H :
1. NATURE OF THE OPTION. This Option does not constitute an Incentive
Stock Option as defined in Section 422 of the Code.
2. GRANT OF OPTION. Pursuant to the provisions of the Plan, the Company
has granted to the Optionee on December 14, 1999, subject to the terms and
conditions of the Plan and subject further to the terms and conditions herein
set forth, the right and option to purchase from the Company all or a part of an
aggregate of 20,000 shares of Stock (the "Shares") at the purchase price of
$4.00 per share, such option to be exercised as hereinafter provided.
3. TERMS AND CONDITIONS. It is understood and agreed that the option
evidenced hereby is subject to the following terms and conditions:
(a) EXPIRATION DATE. The option shall expire five years after the date of
grant specified in Section 2.
(b) EXERCISE OF OPTION. Subject to the other terms of this Agreement
regarding the exercisability of this option, this Option shall be exercisable
cumulatively, to the extent of 50 percent of the Shares (10,000 Shares) on
December 14, 2000, and an additional 50 percent of the Shares (10,000 Shares) on
December 14, 2001, all as more completely described in Exhibit A; provided,
however, that the partial exercise of the option shall, in no event, be for less
than 25% of the number of shares for which options have been granted to the
Optionee, unless such purchase would entirely exhaust the outstanding options
then held by such Optionee.
Any exercise shall be accompanied by a written notice to the Company
specifying the number of shares of Stock as to which the option is being
exercised. Notation of any partial exercise shall be made by the Company on
Schedule I hereto.
(c) PAYMENT OF PURCHASE PRICE UPON EXERCISE. At the time of any exercise,
the purchase price of the Shares as to which this option is exercised shall be
paid in cash to the Company, unless the Board shall permit payment of the
purchase price in another manner permitted by Section 7.4 of the Plan.
(d) TRANSFERABILITY. This option shall not be transferable other than by
will or by the laws of descent and distribution or pursuant to a qualified
domestic relations order. During the lifetime of the Optionee, this option
shall be exercisable only by the Optionee or by the Optionee's guardian or legal
representative.
(e) NO RIGHTS AS SHAREHOLDER. The Optionee shall have no rights as a
shareholder of the Company with respect to any shares of Stock subject to this
option prior to the date of issuance to him of a certificate for such shares.
(f) COMPLIANCE WITH LAW AND REGULATIONS. This option and the obligation
of the Company to sell and deliver shares hereunder shall be subject to all
applicable federal and state laws, rules and regulations and to such approvals
by any government or regulatory agency as may be required. The Company shall
not be required to issue or deliver any certificates for shares of Stock prior
to (i) the listing of such shares on any stock exchange on which the Stock may
then be listed, and (ii) the completion of any registration or qualification of
such shares under any federal or state law, or any rule or regulation of any
government body which the Company shall, in its sole discretion, determine to be
necessary or advisable. Moreover, this option may not be exercised if its
exercise or the receipt of shares of Stock pursuant thereto would be contrary to
applicable law.
(g) PROVISION FOR PAYMENT OF WITHHOLDING TAXES. Optionee understands
that, upon exercise of this Option, Optionee will recognize income for tax
purposes in an amount equal to the excess of the then fair market value of the
shares over the exercise price. The Company may be required to withhold tax
from Optionee's current compensation with respect to such income; to the extent
that Optionee's current compensation is insufficient to satisfy the withholding
tax liability, the Company will require the Optionee to make a cash payment to
cover such liability as a condition of exercise of this Option.
4. TERMINATION OF RELATIONSHIP FOR MISCONDUCT. If the Board reasonably
believes that the Optionee has committed an act of misconduct, it may suspend
the Optionee's right to exercise this option pending a determination by the
Board. If the Board determines that the Optionee has committed an act of
embezzlement, fraud, dishonesty, nonpayment of an obligation owed to the
Company, breach of fiduciary duty or deliberate disregard of the Company's rules
resulting in loss, damage or injury to the Company, or if the Optionee makes an
unauthorized disclosure of any Company trade secret or confidential information,
engages in any conduct constituting unfair competition with respect to the
Company, or induces any party to breach a contract with the Company, neither the
Optionee nor the Optionee's estate shall be entitled to exercise any option
whatsoever. In making such determination, the Board shall act fairly and shall
give the Optionee an opportunity to appear and present evidence on the
Optionee's behalf at a hearing before the Board.
5. INVESTMENT REPRESENTATION. The Board may require the Optionee to
furnish to the Company, prior to the issuance of any shares upon the exercise of
all or any part of this option, an agreement (in the form attached hereto as
Exhibit B) in which the Optionee represents that the shares acquired by him upon
exercise are being acquired for investment and not with a view to the sale or
distribution thereof.
6. OPTIONEE BOUND BY PLAN. The Optionee hereby acknowledges receipt of a
copy of the Plan and agrees to be bound by all the terms and provisions thereof.
7. NOTICES. Any notice hereunder to the Company shall be addressed to it
at its principal executive offices, located at 0000 Xxxxx Xxxx Xxxx, Xx. Xxxxx
Xxxx, Xxxxxxxxx 00000, Attention: Chief Executive Officer; and any notice
hereunder to the Optionee shall be addressed to him at the address set forth
below; subject to the right of either party to designate at any time hereunder
in writing some other address.
8. COUNTERPARTS. This Agreement may be executed in two counterparts each
of which shall constitute one and the same instrument.
2
IN WITNESS WHEREOF, Founders Food & Xxxxxxx Ltd. has caused this Agreement
to be executed by its Chief Executive Officer and the Optionee has executed this
Agreement, both as of the day and year first above written.
FOUNDERS FOOD & XXXXXXX LTD.
By: /s/ XXXXXX X. XXXXXXXXX
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Xxxxxx X. Xxxxxxxxx
Chief Executive Officer
/s/ XXXXXX X. XXXXXXXXX
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Optionee (signature)
Name and address of Optionee
(type or print):
XXXXXX X. XXXXXXXXX
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0000 XXXXX XXXX XXXX
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XX. XXXXX XXXX, XXXXXXXXX 00000
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EXHIBIT A
OPTION AND VESTING DATA
Name of Optionee : Xxxxxx X. Xxxxxxxxx
Number of Shares Subject to Option : 20,000 shares
Date of Grant : December 14, 1999
OPTION VESTING SCHEDULE
NO. OF SHARES
DATE EXERCISABLE
December 14, 2000 10,000
December 14, 2001 20,000
The above vesting schedule assumes a ongoing relationship with the Company.
Your rights to exercise the unvested portion of your option will cease upon
termination of relationship with the Company. Reference is made to the Plan and
to relevant sections of the Agreement between you and the Company for your
rights to exercise the vested portion of your option in the event of termination
of your relationship with the Company during lifetime or upon death. The above
vesting schedule is in all respects subject to the terms of those documents.
A-1
EXHIBIT B
INVESTMENT REPRESENTATION STATEMENT
PURCHASER : Xxxxxx X. Xxxxxxxxx
ISSUER : Founders Food & Xxxxxxx Ltd.
SECURITY : Common Stock
AMOUNT : ___________ Shares
DATE : _________________
In connection with the purchase of the common stock ("Securities") of
Founders Food & Xxxxxxx Ltd. (the "Company"), the undersigned represents to the
Company the following:
(a) I am aware of the Company's business affairs and financial
condition, and have acquired sufficient information about the Company to reach
an informed and knowledgeable decision to acquire the Securities. I am
purchasing the Securities for my own account for investment purposes only and
not with a view to, or for the resale in connection with, any "distribution"
thereof for purposes of the Securities Act of 1933, as amended (the "Securities
Act").
(b) I understand that the Securities have not been registered under
the Securities Act in reliance upon a specific exemption therefrom, which
exemption depends upon, among other things, the bona fide nature of my
investment intent as expressed herein. In this connection, I understand that,
in the view of the Securities and Exchange Commission (the "SEC"), the statutory
basis for such exemption may be unavailable if my representation was predicated
solely upon a present intention to hold the Securities for the minimum capital
gains period specified under tax statutes, for a deferred sale, for or until an
increase or decrease in the market price of the Securities, or for a period of
one year or any other fixed period in the future.
(c) I further understand that the Securities must be held
indefinitely unless subsequently registered under the Securities Act or unless
an exemption from registration is otherwise available. Moreover, I understand
that the Company is under no obligation to register the Securities. In
addition, I understand that the certificate evidencing the Securities will be
imprinted with a legend which prohibits the transfer of the Securities unless
they are registered or such registration is not required in the opinion of
counsel for the Company.
(d) I am familiar with the provisions of Rule 701 and Rule 144, each
promulgated under the Securities Act by the SEC, which, in substance, permit
limited public resale of "restricted securities" acquired, directly or
indirectly, from the issuer thereof, in a non-public offering subject to the
satisfaction of certain conditions. Rule 701 provides that if the issuer
qualifies under Rule 701 at the time of issuance of the Securities, such
issuance will be exempt from registration under the Securities Act. In the
event the Company later becomes subject to the reporting requirements of Section
13 or 15(d) of the Securities Exchange Act of 1934, as amended, ninety (90) days
thereafter the securities exempt under Rule 701 may be resold, subject to the
satisfaction of certain of the conditions specified by Rule 144, including among
other things: (1) the sale being made through a broker in an unsolicited
"broker's transaction" or in transactions directly with a market maker (as said
term is defined under the Securities Exchange Act of 1934, as amended); and, in
the case of an affiliate of the Company, (2) the availability of certain public
information about the Company, and the amount of securities being sold during
any three month period not exceeding the limitations specified in paragraph (e)
of Rule 144, if applicable. Notwithstanding this paragraph (d), I acknowledge
and agree to the restrictions set forth in paragraph (e) hereof.
B-1
In the event that the Company does not qualify under Rule 701 at the time
of issuance of the Securities, then the Securities may be resold in certain
limited circumstances subject to the provisions of Rule 144, which requires
among other things: (1) the availability of certain public information about
the Company, (2) the resale occurring not less than one year after the party has
purchased, and made full payment for, within the meaning of Rule 144, the
securities to be sold; and, in the case of an affiliate, or of a non-affiliate
who has held the securities less than two years, (3) the sale being made through
a broker in an unsolicited "broker's transaction" or in transactions directly
with a market maker (as said term is defined under the Securities Exchange Act
of 1934, as amended) and the amount of securities being sold during any three
month period not exceeding the specified limitations stated therein, if
applicable.
(e) I further understand that in the event all of the applicable
requirements of Rule 144 or Rule 701 are not satisfied, registration under the
Securities Act, compliance with Regulation A, or some other registration
exemption will be required; and that, notwithstanding the fact that Rule 144 and
Rule 701 are not exclusive, the Staff of the SEC has expressed its opinion that
persons proposing to sell private placement securities other than in a
registered offering and otherwise than pursuant to Rule 144 or Rule 701 will
have a substantial burden of proof in establishing that an exemption from
registration is available for such offers or sales, and that such persons and
their respective brokers who participate in such transactions do so at their own
risk.
Dated: Signature of Purchaser:
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Xxxxxx X. Xxxxxxxxx
X-0
SCHEDULE I - NOTATIONS AS TO PARTIAL EXERCISE
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Number of Balance of
Date of Purchased Shares on Authorized Notation
Exercise Shares Option Signature Date
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I-1
