EXHIBIT 10.23
Option No.___________
No. of Shares________
GARDENBURGER, INC.
NONSTATUTORY STOCK OPTION
AND
NONSTATUTORY STOCK OPTION AGREEMENT
This Nonstatutory Stock Option is granted and this
Nonstatutory Stock Option Agreement (the "Agreement") is executed by and between
Gardenburger, Inc., an Oregon corporation (the "Company"), and ____________ (the
"Optionee"), effective ________, 199___.
RECITALS
A. The Company has duly adopted that certain GARDENBURGER, INC., 1992
FIRST AMENDED AND RESTATED COMBINATION STOCK OPTION PLAN, a copy of which is
attached hereto as Exhibit A (the "Plan").
B. The Plan authorizes a committee appointed by the Board of Directors
of the Company (the "Administrative Committee") to grant nonstatutory stock
options (referred to in the Plan as "Non-ISOs") to employees, officers,
directors, agents, consultants and independent contractors of the Company.
C. The Administrative Committee has selected the Optionee to receive a
nonstatutory stock option under the Plan.
NOW, THEREFORE, THE COMPANY AND THE OPTIONEE COVENANT AND AGREE AS FOLLOWS:
1. Number of Shares Subject to Option and Option Price. The Company
hereby grants to the Optionee a nonstatutory stock option (the "Option") to
purchase from the Company ________ shares of the no par value common stock of
the Company (the "Common Stock") at an exercise price of $______ per share. The
Option is exercisable upon the terms and conditions contained herein.
2. Additional Terms of the Option. Subject to the provisions of
Paragraph 3 below, the Option shall have the following terms:
2.1 The effective date of the grant of the Option shall be the date
first set forth above.
2.2 The Option shall vest as follows:
Cumulative Date Percentage Vested
___________, ____ _______%
___________, ____ _______%
___________, ____ _______%
___________, ____ _______%
___________, ____ _______%
2.3 The Option shall expire on ___________, _____ (the "Expiration
Date").
2.4 To the extent vested, the Option may be exercised in whole or
in part at any time and from time to time prior to the Expiration Date.
2.5 The Option must be exercised, if at all, as to a whole number
of shares.
3. Incorporation By Reference of the terms and Conditions of the Plan.
The terms and conditions of this Option shall be subject to all of the terms and
conditions of the Plan, which terms and conditions are expressly incorporated by
reference into this Agreement to the same extent and with the same effect as if
such terms and conditions were set forth herein. In the event of a conflict or
inconsistency between the terms and conditions set forth in this Agreement and
the terms and conditions of the Plan, those of the Plan shall control.
4. Exercise of the Option; Delivery of Certificates.
4.1 The Option may be exercised only in accordance with the
terms and conditions of Section 9 of the Plan and by (1) delivery to the Company
of a Notice of Exercise substantially in the form of Exhibit B attached hereto
specifying the number of shares of Common Stock for which the exercise is to be
effective, (2) tendering full payment of the Option Price for such shares, and
(3) tendering to the Company, or otherwise making arrangements satisfactory to
the Company, of any amounts that the Company determines must be withheld for
federal and state income tax purposes as the result of the exercise of the
Option and the issuance of shares hereunder.
4.2 Within a reasonable time after its receipt of the
Optionee's Notice of Exercise, the Company shall deliver to the Optionee a
certificate for the shares of Common Stock for which exercise of the Option was
effective.
5. Transferability of the Option. The Option is transferable only in
accordance with Section 10 of the Plan.
6. Warranties and Representations of the Optionee. By executing this
Agreement, the Optionee accepts the Option and agrees to be bound by all of the
terms of this Agreement and the Plan. In addition, the Optionee acknowledges
that exercise of the Option and the sale of the shares of Common Stock acquired
upon exercise thereof may have tax implications for which the Optionee should
seek individual above by his or her own tax counselor or advisor.
7. Indemnification by the Optionee. The Optionee agrees to indemnify
and hold the Company harmless from any loss or damage, including attorney's fees
or other legal expenses, incurred in the defense or payment of any such claim
against the Company resulting from a breach by the Optionee of the
representations, warranties or provisions contained in this Agreement.
8. No Right to Continued Relationship. Nothing herein shall confer upon
the Optionee the right to continue as an officer or employee of or with the
Company, nor affect any right which the Company may have to terminate its
relationship with the Optionee.
9. Rights as Shareholders. The Optionee shall have no rights as a
shareholder of the Company on account of the Option nor on account of shares of
Common Stock subject hereto until such time as the Company shall have issued and
delivered stock certificates to the Optionee.
10. Further Assurances. From time to time and upon request by the
Company, the Optionee agrees to execute such additional documents as the Company
may reasonably require in order to effect the purposes of the Plan and this
Agreement.
11. Binding Effect. This Agreement shall be binding upon the Optionee
and the Optionee's heirs, successors and assigns, including the Qualified
Successor of the Optionee (as that term is defined in Section 10.2 of the Plan).
12. Waivers/Modifications. No waivers, alterations or modifications of
this Agreement shall be valid unless in writing and duly executed by the party
against whom enforcement of such waiver, alteration or modification is sought.
The failure of any party to enforce any of its rights against the other party
for breach of any of the terms of this Agreement shall not be construed a waiver
of such rights as to any continued or subsequent breach.
13. Governing Law. This Agreement shall be governed by the laws of the
State of Oregon.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
GARDENBURGER, INC.: OPTIONEE:
By:
------------------------------- ---------------------------
Stock Option Plan Administrator Signature
EXHIBIT B
NOTICE OF EXERCISE OF NONSTATUTORY OPTION
UNDER THE GARDENBURGER, INC.,
1992 FIRST AMENDED AND RESTATED COMBINATION STOCK OPTION PLAN
I, _________________, hereby exercise the option to purchase ________shares of
no par value common stock (the "Shares"), of Gardenburger, Inc. (the "Company"),
granted to me pursuant to the terms and conditions of the GARDENBURGER, INC.,
1992 FIRST AMENDED AND RESTATED COMBINATION STOCK OPTION PLAN (the "Plan") and
the Nonstatutory Stock Option and Nonstatutory Stock Option Agreement dated
__________, 199_, bearing Option No. ___ (the "Option").
Accompanying this Notice is: [select one]
/ / cash, certified or cashier's check in the amount of $________;,
/ / _____ shares of the Company's Common Stock valued at $_______
(their fair market value as of the date of this Notice); or
/ / I hereby request that this Option be exercised through a cashless
transaction and have provided the name and address of my broker below.
I understand that if I elect a cashless transaction, the Company will
request and authorize its stock transfer agent to issue the
certificate(s) in the name of my broker to facilitate the completion of
the transaction.
Optionee acknowledges that, absent an agreement with the Company as to an
alternative source for the payment of any federal and state withholding taxes
owing with respect to this exercise, the Company shall be entitled to withhold
from any amounts tendered by the Optionee such amounts as the Company shall
determine necessary to satisfy any such withholding obligations.
______________________ Date: __________________
(Optionee's Signature)
Optionee's Name:_____________________________
Optionee's Address: _________________________
_________________________
_________________________
Broker's Name:_____________________________
Broker's Address: _________________________
_________________________
_________________________
RECEIPT OF STOCK CERTIFICATE
I hereby acknowledge receipt of Stock Certificate No.___ from the
Company on _________, 199_, representing ___ shares of the Company's common
stock acquired upon exercise of the Option bearing Option No.___________.
_______________________ Date: ___________
(Optionee's Signature)
