EXHIBIT 4.7
OVERHILL FARMS, INC.
2002 EMPLOYEE STOCK OPTION PLAN
STOCK OPTION AGREEMENT
Unless otherwise defined herein, the terms defined in the 2002 Employee
Stock Option Plan of Overhill Farms, Inc. ("PLAN") shall have the same defined
meanings in this Stock Option Agreement ("OPTION AGREEMENT").
I. NOTICE OF GRANT
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NAME:
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ADDRESS:
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The undersigned Optionee has been granted an Option to purchase Common
Stock of the Company, subject to the terms and conditions of the Plan and this
Option Agreement, as follows:
Grant Number
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Date of Grant
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Exercise Price per Share
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Total Number of Shares
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Total Exercise Price
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Type of Option: ___ Incentive Stock Option
___ Nonqualified Stock Option
Term/Expiration Date:
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Vesting Schedule:
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Subject to the terms and conditions of the Plan, this Option shall vest
and become exercisable according to the following schedule:
[insert vesting schedule].
Termination Period:
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Any unexercised portion of this Option shall automatically and without
notice terminate and become null and void, after the earliest to occur of the
following:
(a) six (6) months following the death or Disability of the
Optionee;
(b) thirty (30) days following the date on which the Optionee
ceases to be an Eligible Person for any reason other than death,
Disability, or termination for Cause; or
(c) immediately upon the termination of an Optionee as an Eligible
Person for Cause.
In no event, however, shall the periods described above extend beyond
the Term/Expiration Date provided above or beyond the expiration of ten (10)
years from the Date of Grant.
II. AGREEMENT
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1. GRANT OF OPTION. The Committee (or the Disinterested Committee, if
applicable) hereby grants to the Optionee named in the Notice of Grant (the
"OPTIONEE"), an option (this "OPTION") to purchase the number of Shares set
forth in the Notice of Grant, at the exercise price per Share set forth in the
Notice of Grant (the "EXERCISE PRICE"), and subject to the terms and conditions
of the Plan, which is incorporated herein by reference, and this Option
Agreement. Subject to Section 18 of the Plan, in the event of a conflict between
the terms and conditions of the Plan and this Option Agreement, the terms and
conditions of the Plan shall prevail.
If designated in the Notice of Grant as an Incentive Stock Option
("ISO"), this Option is intended to qualify as an Incentive Stock Option as
defined in Section 422 of the Code. Nevertheless, to the extent that it exceeds
the $100,000 rule of Code Section 422(d), this Option shall be treated as a
Nonqualified Stock Option ("NSO").
2. EXERCISE OF OPTION.
(a) RIGHT TO EXERCISE. This Option shall vest and become
exercisable during its term in accordance with the Vesting Schedule set out in
the Notice of Grant and with the applicable provisions of the Plan and this
Option Agreement.
(b) METHOD OF EXERCISE. This Option shall be exercisable by
delivery of an exercise notice in the form attached as EXHIBIT A (the "EXERCISE
NOTICE"), which shall state the election to exercise this Option, the number of
Shares with respect to which this Option is being exercised ("EXERCISED
SHARES"), and such other representations and agreements as may be required by
the Company. The Exercise Notice shall be accompanied by payment of the
aggregate Exercise Price as to all Exercised Shares. This Option shall be deemed
to be exercised when (i) the Company has received a fully executed Exercise
Notice, (ii) full payment of the aggregate Exercise Price for the Exercised
Shares has been made, and (iii) arrangements that are satisfactory to the
Committee (or the Disinterested Committee, if applicable) in its sole discretion
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have been made for the Optionee's payment to the Company of the amount, if any,
that the Committee (or the Disinterested Committee, if applicable) determines to
be necessary for the Company or a Subsidiary to withhold in accordance with
applicable federal or state income tax withholding requirements.
No Shares shall be issued pursuant to the exercise of an Option
unless the issuance and the exercise complies with all applicable laws, as
determined by the Committee (or the Disinterested Committee, if applicable) in
its sole discretion. Assuming such compliance, for income tax purposes the
Shares shall be considered transferred to the Optionee on the date on which the
Option is exercised with respect to the Shares.
3. OPTIONEE'S REPRESENTATIONS. If the issuance of the Shares is not
registered under the Securities Act of 1933 ("Securities Act") at the time this
Option is exercised, then the Optionee shall, if requested by the Company,
deliver to the Company his or her Investment Representation Statement in the
form attached hereto as EXHIBIT B.
4. METHOD OF PAYMENT. Payment of the aggregate Exercise Price shall be
by any of the following, or a combination thereof, at the election of the
Optionee:
(a) cash;
(b) certified or cashier's check payable to the order of the
Company;
(c) other Shares which have a Fair Market Value on the date of
surrender equal to the aggregate Exercise Price of the Shares as to
which this Option will be exercised; or
(d) any other consideration and method of payment for the issuance
of Shares to the extent permitted by applicable laws and authorized by
the Committee (or the Disinterested Committee, if applicable).
5. RESTRICTIONS ON EXERCISE. This Option may not be exercised until
such time as the Plan has been approved by the stockholders of the Company, or
if the issuance of the Shares upon exercise or the method of payment of
consideration for the Shares would constitute a violation of any applicable law.
6. NON-TRANSFERABILITY OF OPTION. This Option may not be transferred in
any manner otherwise than by will or by the laws of descent or distribution and
may be exercised during the lifetime of Optionee only by Optionee or his
guardian or legal representative. The terms of the Plan and this Option
Agreement shall be binding upon the executors, administrators, heirs, successors
and assigns of the Optionee.
7. TERM OF OPTION. This Option may be exercised only within the term
set out in the Notice of Grant, and may be exercised during such term only in
accordance with the Plan and the terms of this Option Agreement.
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8. TAX OBLIGATIONS.
(a) WITHHOLDING TAXES. The Optionee agrees to make appropriate
arrangements with the Company (or the Subsidiary employing or retaining
Optionee) for the satisfaction of all federal, state, local and foreign
income and employment tax withholding requirements applicable to the
Option exercise. The Optionee acknowledges and agrees that the Company
may refuse to honor the exercise and refuse to deliver Shares if the
withholding amounts are not delivered at the time of exercise.
(b) NOTICE OF DISQUALIFYING DISPOSITION OF ISO SHARES. If this
Option is an ISO, and if the Optionee sells or otherwise disposes of
any of the Shares acquired pursuant to the ISO on or before the later
of (i) the date two (2) years after the Date of Grant, or (ii) the date
one (1) year after the date of exercise, the Optionee shall immediately
notify the Company in writing of the disposition. The Optionee agrees
that the Optionee may be subject to income tax withholding by the
Company on the compensation income recognized by the Optionee.
9. ENTIRE AGREEMENT. The Plan is incorporated herein by reference. The
Plan and this Option Agreement constitute the entire agreement of the parties
with respect to the subject matter hereof and supersede in their entirety all
prior undertakings and agreements of the Company and the Optionee with respect
to the subject matter hereof, and may not be modified adversely to the
Optionee's interest except by means of a writing signed by the Company and the
Optionee.
10. GOVERNING LAW. The corporate laws of the State of Nevada shall
govern all issues concerning the relative rights of the Company and its security
holders under this Stock Option Agreement. All other questions and obligations
under this Option Agreement shall be construed and enforced in accordance with
the internal laws of the State of California, without giving effect to any
choice of law or conflict of law provision or rule (whether of the State of
California or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of California. In any action,
dispute, litigation or other proceeding concerning this Option Agreement
(including arbitration), exclusive jurisdiction shall be with the courts of
California, with the County of Los Angeles being the sole venue for the bringing
of the action or proceeding.
11. NO GUARANTEE OF CONTINUED SERVICE. THE OPTIONEE ACKNOWLEDGES AND
AGREES THAT THE VESTING OF SHARES PURSUANT TO THE VESTING SCHEDULE HEREOF IS
EARNED ONLY BY CONTINUING AS AN ELIGIBLE PERSON AT THE WILL OF THE COMPANY (NOT
THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS OPTION OR ACQUIRING SHARES
HEREUNDER). THE OPTIONEE FURTHER ACKNOWLEDGES AND AGREES THAT THIS OPTION
AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET
FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED
ENGAGEMENT AS AN ELIGIBLE PERSON FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT
ALL, AND SHALL NOT INTERFERE IN ANY WAY WITH THE OPTIONEE'S RIGHT OR THE
COMPANY'S RIGHT TO TERMINATE THE OPTIONEE'S RELATIONSHIP AS AN ELIGIBLE PERSON
AT ANY TIME, WITH OR WITHOUT CAUSE.
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The Optionee acknowledges receipt of a copy of the Plan and represents
that he or she is familiar with the terms and provisions thereof, and hereby
accepts this Option subject to all of the terms and provisions thereof. The
Optionee has reviewed the Plan and this Option in their entirety, has had an
opportunity to obtain the advice of counsel prior to executing this Option and
fully understands all provisions of this Option. The Optionee hereby agrees to
accept as binding, conclusive and final all decisions or interpretations of the
Committee (or the Disinterested Committee, if applicable) upon any questions
arising under the Plan or this Option. The Optionee further agrees to notify the
Company upon any change in the residence address indicated below.
IN WITNESS WHEREOF, the Company has caused this Option Agreement to be
duly executed by its officer thereunto duly authorized, and the Optionee has
hereunto set his or her hand, on the respective dates set forth below, to
memorialize the grant of the Option that occurred as of the Date of Xxxxx set
forth in the above Notice of Grant.
OPTIONEE OVERHILL FARMS, INC.
---------------------------------- By:
Signature -----------------------------------
---------------------------------- Title:
Print Name --------------------------------
---------------------------------- Date:
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Residence Address
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Social Security Number/Taxpayer ID
Date:
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EXHIBIT A
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2002 EMPLOYEE STOCK OPTION PLAN
EXERCISE NOTICE
Overhill Farms, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Corporate Secretary
1. EXERCISE OF OPTION. The undersigned ("OPTIONEE") hereby elects to
exercise Optionee's option (the "OPTION") by purchasing _________ shares of the
common stock (the "SHARES") of Overhill Farms, Inc. (the "COMPANY") under and
pursuant to the 2002 Employee Stock Option Plan (the "PLAN") and the Stock
Option Agreement dated ____________, 20___ (the "OPTION AGREEMENT"). Capitalized
terms not otherwise defined in this Exercise Notice shall have the meanings
ascribed thereto in the Option Agreement.
2. DELIVERY OF PAYMENT. Optionee herewith delivers to the Company the
full purchase price of the Shares, as set forth in the Option Agreement, and any
and all withholding taxes due in connection with the exercise of the Option.
3. REPRESENTATIONS OF OPTIONEE. Optionee acknowledges that Optionee has
received, read and understood the Plan and the Option Agreement and agrees to
abide by and be bound by their terms and conditions.
4. RIGHTS AS STOCKHOLDER. Until the issuance of the Shares (as
evidenced by the appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company), no right to vote or receive dividends
or any other rights as a stockholder shall exist with respect to the Shares
subject to the Option, notwithstanding the exercise of the Option. The Shares
shall be issued to the Optionee as soon as practicable after the Option is
exercised in accordance with the Option Agreement. No adjustment shall be made
for a dividend or other right for which the record date is prior to the date of
issuance except as provided in Section 10 of the Plan.
5. TAX CONSULTATION. Optionee understands that Optionee may suffer
adverse tax consequences as a result of Optionee's purchase or disposition of
the Shares. Optionee represents that Optionee has consulted with any tax
consultants Optionee deems advisable in connection with the purchase or
disposition of the Shares and that Optionee is not relying on the Company for
any tax advice.
6. SUCCESSORS AND ASSIGNS. The Company may assign any of its rights
under this Exercise Notice to single or multiple assignees, and this Exercise
Notice shall inure to the benefit of the successors and assigns of the Company.
Subject to the restrictions on transfer herein set forth, this Exercise Notice
shall be binding upon Optionee and his or her heirs, executors, administrators,
successors and assigns.
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7. INTERPRETATION. Any dispute regarding the interpretation of this
Exercise Notice shall be submitted by Optionee or by the Company forthwith to
the Committee (or the Disinterested Committee, if applicable), which shall
review such dispute at its next regular meeting. The resolution of such a
dispute by the Committee (or the Disinterested Committee, if applicable) shall
be final and binding on all parties.
8. GOVERNING LAW; SEVERABILITY. The corporate laws of the State of
Nevada shall govern all issues concerning the relative rights of the Company and
its security holders under this Exercise Notice. All other questions and
obligations under this Exercise Notice shall be construed and enforced in
accordance with the internal laws of the State of California, without giving
effect to any choice of law or conflict of law provision or rule (whether of the
State of California or any other jurisdiction) that would cause the application
of the laws of any jurisdiction other than the State of California. In any
action, dispute, litigation or other proceeding concerning this Exercise Notice
(including arbitration), exclusive jurisdiction shall be with the courts of
California, with the County of Los Angeles being the sole venue for the bringing
of the action or proceeding. If any provision hereof becomes or is declared by a
court of competent jurisdiction to be illegal, unenforceable or void, this
Exercise Notice will continue in full force and effect.
9. ENTIRE AGREEMENT. The Plan and the Option Agreement are incorporated
herein by reference. This Exercise Notice, the Plan and the Option Agreement
constitute the entire agreement of the parties with respect to the subject
matter hereof and supersede in their entirety all prior undertakings and
agreements of the Company and Optionee with respect to the subject matter
hereof, and may not be modified adversely to the Optionee's interest, or
modified by the Optionee, except by means of a writing signed by the Company and
Optionee.
Submitted by: Accepted by:
OPTIONEE OVERHILL FARMS, INC.
---------------------------------- By:
Signature -----------------------------------
---------------------------------- Title:
Print Name --------------------------------
Address: Address:
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---------------------------------- 0000 Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
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Date Received
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EXHIBIT B
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2002 EMPLOYEE STOCK OPTION PLAN
INVESTMENT REPRESENTATION STATEMENT
OPTIONEE:
COMPANY: OVERHILL FARMS, INC.
SECURITY: COMMON STOCK
AMOUNT:
In connection with the purchase of the above-referenced Securities, the
undersigned Optionee represents to the Company as follows:
(a) Optionee is aware of the Company's business affairs and financial
condition and has acquired sufficient information about the Company to reach an
informed and knowledgeable decision to acquire the Securities. Optionee is
acquiring these Securities for investment for Optionee's own account only and
not with a view to, or for resale in connection with, any "distribution" thereof
within the meaning of the Securities Act of 1933 (the "Securities Act").
(b) Optionee acknowledges and understands that the Securities
constitute "restricted securities" under the Securities Act and 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 Optionee's investment intent as expressed herein. In this connection,
Optionee understands that, in the view of the Securities and Exchange
Commission, the statutory basis for the exemption may be unavailable if
Optionee's representation was predicated solely upon a present intention to hold
these 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 (1) year or any other
fixed period in the future. Optionee further understands that the Securities
must be held indefinitely unless they are subsequently registered under the
Securities Act or an exemption from such registration is available. Optionee
further acknowledges and understands that the Company is under no obligation to
register the Securities. Optionee understands that the certificate evidencing
the Securities may be imprinted with any legend required under applicable
federal or state securities laws.
(c) Optionee is familiar with the provisions of Rule 144 promulgated
under the Securities Act, which, in substance, permits 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.
(d) Optionee further understands that if all of the applicable
requirements of Rule 144 are not satisfied, registration under the Securities
Act or some other registration exemption will be required; and that,
notwithstanding the fact that Rule 144 is not exclusive, the Staff of the
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Securities and Exchange Commission 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 will have a substantial burden
of proof in establishing that an exemption from registration is available for
the offers or sales, and that persons and their respective brokers who
participate in these transactions do so at their own risk. Optionee understands
that no assurances can be given that any other registration exemption will be
available in that event.
Signature of Optionee:
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Date:_____________________, 20____
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