Exhibit 3.25
THIS OPTION HAS BEEN ISSUED PURSUANT TO EXEMPTIONS FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND THE
QUALIFICATION REQUIREMENTS OF APPLICABLE STATE SECURITIES LAWS (THE "LAWS"). IT
IS UNLAWFUL TO EXERCISE, SELL, PLEDGE OR OTHERWISE DISPOSE OF THIS OPTION, OR
ANY INTEREST THEREIN, OR RECEIVE ANY CONSIDERATION THEREFOR, IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND QUALIFICATION UNDER THE
LAWS, UNLESS EXEMPTIONS FROM SUCH REGISTRATION AND QUALIFICATION REQUIREMENTS
ARE AVAILABLE.
THIS OPTION MAY BE EXERCISED ONLY IN ACCORDANCE WITH THE TERMS OF THIS STOCK
OPTION AGREEMENT.
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FOOD EXTRUSION, INC.
DIRECTORS STOCK OPTION AGREEMENT
Food Extrusion, Inc., a Nevada corporation (the "Company"),
hereby grants to _________________ (the "Optionee"), an option (the "Option") to
purchase up to ________ shares ("Shares") of Common Stock, par value $.001, of
the Company (the "Common Stock") at an exercise price (the "Exercise Price")
equal to $_______ per share, which is equal to the fair market value of the
Company's Common Stock on the date of grant, in all respects subject to the
terms, definitions and provisions of this Directors Stock Option Agreement (the
"Agreement").
1. Nature of the Option. The Option is intended to be a
nonstatutory option and not an incentive stock option within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code").
2. Payment of Exercise Price.
(a) Method of Payment. Payment of the Exercise Price
for shares purchased upon exercise of the Option shall be made (i) by delivery
to the Company of cash or a check to the order of the Company in an amount equal
to the purchase price of such shares; (ii) subject to the consent of the
Company, by delivery to the Company of shares of Common Stock of the Company
then owned by the Optionee having a fair market value equal in amount to the
purchase price of such shares in accordance with Section 2(b); (iii) by any
other means approved by the Board of Directors and which is consistent with
applicable laws and regulations (including, without limitation, the provisions
of Rule 16b-3 under the Securities Exchange Act of 1934 and Regulation T
promulgated by the Federal Reserve Board); or (iv) by any combination of such
methods of payment.
(b) Method of Payment--Public Market. In the event
there exists a public market for the Company's Common Stock on the date of
exercise, payment of the exercise price may be made by surrender of shares of
the Company's Common Stock. In this case payment shall be made as follows:
(i) Optionee shall deliver to the Secretary
of the Company a written notice which shall set forth the portion of the
purchase price the Optionee wishes to pay with Common Stock, and the number of
shares of such Common Stock the Optionee intends to surrender pursuant to the
exercise of this Option, which shall be determined by dividing the
aforementioned portion of the purchase price by the average of the last reported
bid and asked prices per share of Common Stock of the Company, as reported in
The Wall Street Journal (or, if not so reported, as otherwise reported by the
National Association of Securities Dealers Automated Quotation (NASDAQ) System
or, in the event the Common Stock is listed on a national securities exchange,
or on the NASDAQ National Market System, NASDAQ Small-Cap Market or any
successor national market system, the closing price of Common Stock of the
Company on such exchange as reported in The Wall Street Journal), for the day on
which the notice of exercise is sent or delivered;
(ii) Fractional shares shall be disregarded
and the Optionee shall pay in cash an amount equal to such fraction multiplied
by the price determined under subparagraph (i) above;
(iii) The written notice shall be
accompanied by a duly endorsed blank stock power with respect to the number of
Shares set forth in the notice, and the certificate(s) representing said Shares
shall be delivered to the Company at its principal offices within three (3)
working days from the date of the notice of exercise;
(iv) The Optionee hereby authorizes and
directs the Secretary of the Company to transfer so many of the Shares
represented by such certificate(s) as are necessary to pay the purchase price in
accordance with the provisions herein;
(v) If any such transfer of Shares requires
the consent of the California Commissioner of Corporations or of some other
agency under the securities laws of any other state, or an opinion of counsel
for the Company or Optionee that such transfer may be effected under applicable
Federal and state securities laws, the time periods specified herein shall be
extended for such periods as the necessary request for consent to transfer is
pending before said Commissioner or other agency, or until counsel renders such
an opinion, as the case may be. All parties agree to cooperate in making such
request for transfer, or in obtaining such opinion of counsel, and no transfer
shall be effected without such consent or opinion if required by law; and
(vi) Notwithstanding any other provision
herein, the Optionee shall only be permitted to pay the purchase price with
shares of the Company's Common Stock owned by him as of the exercise date in the
manner and within the time periods allowed under Rule 16b-3 promulgated under
the Securities Exchange Act of 1934 as such regulation is presently constituted,
as it is amended from time to time, and as it is interpreted now or hereafter by
the Securities and Exchange Commission and any such shares shall have been held
by the Optionee for not less than six (6) months.
3. Exercise of Option. The Option shall vest and become
exercisable during its term, subject to the provisions of Section 5 below, as
follows:
(a) Vesting and Right to Exercise.
(i) The Option hereby granted shall vest and
become exercisable in its entirety on the Grant Date.
(ii) In the event of the Optionee's death,
disability or other termination of employment prior to exercise, the
exercisability of the Option shall be governed by Section 5, below.
(iii) The Option may be exercised in whole
or in part but may not be exercised as to fractional shares.
(b) Method of Exercise. In order to exercise any
portion of the Option, the Optionee shall execute and deliver to the Chief
Financial Officer of the Company, the Notice of Exercise of Stock Option in the
form attached hereto as Exhibit A, together with the Consent of Spouse. The
Notice of Exercise must be accompanied by payment in full of the aggregate
purchase price for the Shares to be purchased in the type of consideration set
forth in Section 2. The Notice of Exercise may be delivered to the Company at
any time. The certificate(s) for the Shares as to which the Option has been
exercised shall be registered in the name of Optionee or his designee.
(c) Restrictions on Exercise. The Option may not be
exercised if the issuance of the Shares upon such exercise or the method of
payment of consideration for such Shares would constitute a violation of any
applicable Federal or state securities law or any other law or regulation. As a
condition to the exercise of the Option, the Company may require the Optionee to
make any representation or warranty to the Company at the time of exercise of
the Option as in the opinion of legal counsel for the Company may be required by
any applicable law or regulation, including the execution and delivery of an
appropriate representation statement. The stock certificate(s) for the Shares
issued upon exercise of the Option may bear appropriate legends restricting
transfer.
(d) Delivery of Certificates. The Company shall
deliver the certificate(s) for the Shares issued upon exercise of the Option to
the Director as soon as is practicable; provided, however, that if any law or
regulation requires the Company to take any action with respect to such shares
before the issuance thereof, including, without limitation, actions taken
pursuant to Section 6 below, then the date of delivery of such Shares shall be
extended for a period necessary to take such action.
4. Non-Transferability of Option. The Option may be exercised
during the lifetime of the Optionee only by the Optionee and may not be
transferred in any manner other than by will or by the laws of descent and
distribution. The terms of the Option shall be binding upon the executors,
administrators, heirs and successors of the Optionee.
5. Term of the Option. Except as otherwise provided in this
Agreement, to the extent not previously exercised, the right to exercise the
Option shall terminate on the tenth (10th) anniversary of the Date of Grant.
Notwithstanding the foregoing, if an Optionee ceases to serve as a Director for
any reason, except death and disability, he or she may, but only within ninety
(90) days after the date he or she ceases to be a Director of the Company,
exercise his or her Option to the extent that he or she was entitled to exercise
it at the date of such termination, and in the case of the Optionee's death or
disability, the Optionee (or the Administrator or Executor or other
Representative of the Director's Estate) may, but only within one (1) year after
the date he or she ceases to be a Director of the Company due to death or
disability, exercise his or her Option to the extent that he or she was entitled
to exercise it at the date of such termination; provided, however that in no
event may the Option be exercised after its ten (10) year term has expired. To
the extent that the Optionee was not entitled to exercise an Option at the date
of such termination, or if he or she does not exercise such Option (which he or
she was entitled to exercise) within the time specified herein, the Option shall
terminate.
6. Adjustments Upon Changes in Capitalization; Other
Adjustments. Subject to any required action by the shareholders of the Company,
the number of Shares and the Exercise Price shall be proportionately adjusted
for any increase or decrease in the number of issued shares of common stock
resulting from a stock split, reverse stock split, combination,
reclassification, the payment of a stock dividend on the common stock or any
other increase or decrease in the number of shares of Common Stock of the
Company effected without receipt of consideration by the Company; provided,
however, that conversion of any convertible securities of the Company shall not
be deemed to have been "effected without receipt of consideration." Such
adjustment shall be made by the Board, whose determination in that respect shall
be final, binding and conclusive. Except as expressly provided herein, no issue
by the Company of shares of stock of any class, or securities convertible into
shares of stock of any class, shall affect, and no adjustment by reason thereof
shall be made with respect to, the number of Shares subject to, or the Exercise
Price of, this Option.
The Board may, if it so determines in the exercise of its sole
discretion, also make provision for adjusting the number of Shares, as well as
the Exercise Price, in the event that the Company effects one or more
reorganizations, recapitalizations, rights offerings, or other increases or
reductions of shares of its outstanding common stock, and in the event of the
Company being consolidated with or merged into any other corporation; provided,
however, that in no event shall the Optionee be adversely affected by such
adjustment.
The Board may, if it so determines in the exercise of its sole
discretion, also make provision for changing, modifying, amending or adjusting
any of the terms of this Option solely in order for the Company to perfect a
significant financing.
7. Rights of Shareholder. Optionee shall have no rights as a
shareholder with respect to the Shares until the date of the issuance or the
transfer to the Optionee of the certificate(s) for such Shares and only after
the Exercise Price for such Shares has been paid in full.
8. Amendment. Except as set forth in Section 6, this Agreement
may not be amended without the written consent of the Optionee.
9. Income Tax Withholding. The Optionee authorizes the Company
to withhold, in accordance with applicable law from any compensation payable to
him or her, any taxes required to be withheld by Federal, state or local laws as
a result of the exercise of this Option. Furthermore, in the event of any
determination that the Company has failed to withhold a sum sufficient to pay
all withholding taxes due in connection with the exercise of this Option, the
Optionee agrees to pay the Company the amount of such deficiency in cash within
five (5) days after receiving a written demand from the Company to do so,
whether or not Optionee is an employee or director of the Company at that time.
10. Investment Representations; Legends.
(a) Representations. The Optionee represents,
warrants and covenants that:
(i) Any shares purchased upon exercise of
this Option shall be acquired for the Optionee's account for investment only,
and not with a view to, or for sale in connection with, any distribution of the
shares in violation of the Securities Act of 1933 (the "Securities Act"), or any
rule or regulation under the Securities Act.
(ii) The Optionee has had such opportunity
as he or she has deemed adequate to obtain from representatives of the Company
such information as is necessary to permit the Optionee to evaluate the merits
and risks of his or her investment in the Company.
(iii) The Optionee is able to bear the
economic risk of holding such shares acquired pursuant to the exercise of this
option for an indefinite period.
(iv) The Optionee understands that the
Shares acquired pursuant to the exercise of this option are not registered under
the Securities Act and are "restricted securities" within the meaning of Rule
144 under the Securities Act and may not be transferred, sold or otherwise
disposed of in the absence of an effective registration statement with respect
to the Shares filed and made effective under the Securities Act of 1933, or an
opinion of counsel satisfactory to the Company to the effect that registration
under such Act is not required.
By making payment upon exercise of this option, the Optionee shall be deemed to
have reaffirmed, as of the date of such payment, the representations made in
this Section 10.
(b) Legends of Stock Certificate. All stock
certificates representing shares of Common Stock issued to the Optionee upon
exercise of this option shall have affixed thereto legend(s) substantially in
the following forms, in addition to any other legends required by applicable
state law:
"THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT
BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO THE
SHARES EVIDENCED BY THIS CERTIFICATE, FILED AND MADE EFFECTIVE
UNDER THE SECURITIES ACT OF 1933, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY TO THE EFFECT THAT REGISTRATION
UNDER SUCH ACT IS NOT REQUIRED."
DATE OF GRANT: _________________
FOOD EXTRUSION INCORPORATED
By:
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[corporate seal] Xxxxx X. Xxxxx, Chief Executive Officer
By:
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Xxxxx X. Xxxxxxxx, Vice President
& Chief Financial Officer
The Optionee acknowledges receipt of the Directors Stock
Option Agreement attached hereto and represents that he or she is familiar with
the terms and provisions thereof, and hereby accepts the Option subject to all
of the terms and provisions thereof. The Optionee hereby agrees to accept as
binding, conclusive and final all decisions or interpretations of the Board of
Directors of Food Extrusion, Inc. upon any questions arising under such
Agreement.
Dated:
OPTIONEE:
CONSENT OF SPOUSE
I, ___________________________, spouse of the Optionee who
executed the Directors Stock Option Agreement attached hereto, hereby agree that
my spouse's interest in the shares of Common Stock of Food Extrusion, Inc.
subject to said Agreement shall be irrevocably bound by the Agreement's terms. I
agree to accept as binding, conclusive and final all decisions or
interpretations of the Board of Directors of Food Extrusion, Incorporated upon
any questions arising under such Agreement. I further agree that my community
property interest in such Shares, if any, shall similarly be bound by said
Agreement and that such consent is binding upon my executors, administrators,
heirs and assigns. I agree to execute and deliver such documents as may be
necessary to carry out the intent of said Agreement and this consent.
Dated:
Signature
Print Name
EXHIBIT A
TO: Food Extrusion, Inc.
0000 Xxxx'x Xxxxxx Xxxxx
Xx Xxxxxx Xxxxx, Xxxxxxxxxx 00000
SUBJECT: NOTICE OF EXERCISE OF STOCK OPTION
With respect to the stock option granted to the undersigned by
Food Extrusion, Inc. (the "Company") on ______________, 1997, to purchase an
aggregate of ________________ shares of the Company's Common Stock, this is
official notice that the undersigned hereby elects to exercise such option to
purchase shares as follows:
NUMBER OF SHARES:
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DATE OF PURCHASE:
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MODE OF PAYMENT:
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(Certified check or cash)
The shares should be issued as follows:
NAME:
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ADDRESS:
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Signed:
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Dated:
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Please send this notice of exercise to:
Food Extrusion, Inc.
0000 Xxxx'x Xxxxxx Xxxxx
Xx Xxxxxx Xxxxx, Xxxxxxxxxx 00000
