EXHIBIT 99.4
NON-QUALIFIED STOCK OPTION AGREEMENT
This Agreement is made as of the 10th day of January, 1998, between HORIZON
ORGANIC HOLDING CORPORATION, a Delaware corporation (the "CORPORATION"), and
___________ (the "OPTIONEE").
1. STOCK OPTION. The Corporation hereby grants to the Optionee an option
to purchase ______ shares of the authorized and unissued common stock of the
Corporation at a price of $6.50 per share (the "OPTION").
2. TIME AND METHOD OF EXERCISE OF THE OPTION.
(A) Notice. The Option may be exercised in whole or in part by
delivery to the Corporation of written notice in the form of the Notice of
Exercise of Stock Option attached as Attachment II specifying the number of
shares with respect to which the Option is exercised and by making full payment
in cash or certified check of the purchase price for such shares.
(B) TIME OF EXERCISE. Commencing on January 10, 1999 the Option may
be exercised only to the extent of twenty-five percent of the total number of
shares covered by this Option. An additional twenty-five percent of the total
number of shares covered by this Option may be exercised on each successive
anniversary thereof. The provisions of this subparagraph (b) are limited as
otherwise provided in paragraph 6.
3. ADJUSTMENT OF THE OPTION. In the event of any change in the capital
structure of the Corporation through consolidation, stock dividend, split-up or
other change, appropriate proportionate adjustment shall be made in the number
and purchase price of the shares which may be purchased by the exercise of the
option.
4. EXPIRATION OF OPTION. The Option shall expire (i) ______________; or
(ii) upon the completion of the merger or sale of substantially all of the stock
or assets of the Corporation, with or to another corporation unless the other
corporation elects to continue the Plan.
5. INVESTMENT REQUIREMENT. The Optionee hereby agrees to purchase any
shares by exercise of the Option for investment purposes only and not to resell
any such shares in any manner violating the Securities Act of 1933 (the "Act"),
as amended, any rules promulgated thereunder, or any applicable state statute.
Optionee hereby confirms that he has been advised of and understands the
restrictions on resale of stock by virtue of Rule 144 promulgated under the Act.
This restriction or notice thereof shall be placed upon the certificate
representing any shares purchased.
6. TRANSFERABILITY. The Option may not be transferred other than by will
or the laws of descent and distribution and may be exercised during the lifetime
of the Optionee only by him.
7. BENEFIT. Except as otherwise provided herein, this Agreement shall be
binding upon and shall inure to the benefit of the parties and their respective
heirs, personal representatives, successors and assigns.
1.
8. NO RIGHTS; NO OTHER OPTIONS. Optionee hereby acknowledges that the
adoption of the Plan and the grant of the Option pursuant to this Agreement
shall not be construed as giving Optionee any legal or equitable right against
the Corporation or any other person except as specifically provided in this
Agreement. Optionee hereby acknowledges that he has no right to acquire any
shares of the stock of the Corporation by the exercise of an option except as
expressly set forth in this Agreement or in another written agreement executed
by Optionee and the Corporation.
9. NOTICE. Except as otherwise specifically provided, any notices to be
given hereunder shall be deemed given upon personal delivery or upon mailing
thereof, if mailed by certified mail, return receipt requested, to the following
addresses (or to such other address or addresses as shall be specified in any
notice given):
In the case of the Corporation:
Horizon Organic Holding Corporation
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
In the case of Optionee:
_____________________________
_____________________________
_____________________________
_____________________________
10. Entire Agreement. This Agreement, together with the documents and
exhibits referred to herein, embodies the entire understanding among the parties
and merges all prior discussions or communications among them, and no party
shall be bound by any definitions, conditions, warranties, or representations
other than as expressly stated in this Agreement or as subsequently set forth in
a writing signed by the duly authorized representatives of all of the parties
hereto.
11. INTERPRETATION. This Agreement shall be construed as a whole and in
accordance with its fair meaning. Captions are for convenience only and shall
not be used in construing meaning. This Agreement and all the schedules or
exhibits incorporated herein by reference shall be interpreted in accordance
with the laws of the State of Delaware.
12. GENDER, TENSE, ETC. Whenever the masculine, feminine or neuter
genders are used herein, as required by the context or particular circumstance,
they shall include each of the other genders as appropriate. Whenever the
singular or plural numbers are used, they shall be deemed to be the other as
required. Wherever the present or past tense is used in this Agreement and the
context or circumstances require another interpretation, the present shall
include the past and future, the future shall include the present, and the past
shall include the present.
13. SEVERABILITY. Notwithstanding paragraph 14 below, if any provision or
any part of any provision of this Agreement shall be void or unenforceable for
any reason whatsoever, then that provision shall be stricken and of no force and
effect. The remaining provisions of this
2.
Agreement, however, shall continue in full force and effect, and to the extent
required, shall be modified to preserve their validity.
14. ALL TERMS MATERIAL. The parties hereby expressly acknowledge and
agree that each and every term and condition of this Agreement is of the essence
of this Agreement, constitutes a material part of the bargained-for
consideration without which this Agreement would not have been executed, and is
a material part of the Agreement.
15. NO ORAL CHANGE; AMENDMENT. This Agreement may only be changed or
modified and any provisions hereof may only be waived in or by a writing signed
by the party against whom enforcement of any waiver, change or modification is
sought. This Agreement may be amended only in writing by mutual consent of the
parties.
IN WITNESS WHEREOF, the parties have executed this Agreement on the above
date.
ATTEST: HORIZON ORGANIC HOLDING CORPORATION
By:________________________ By:__________________________
Its:_______________________ Its:_________________________
OPTIONEE:
___________________________ Optionee's Social
NAME Security Number:________________
3.
ATTACHMENT II
NOTICE OF EXERCISE OF STOCK OPTION
Horizon Organic Holding Corporation
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Ladies and Gentlemen:
The undersigned has been granted options to purchase shares of the common
stock (the "STOCK") of Horizon Organic Holding Corporation, a Delaware
corporation (the "CORPORATION") pursuant to the terms of the Stock Option Grant
Notice ("GRANT NOTICE") and Non-Qualified Stock Option Agreement (the "OPTION");
and, by executing this Notice, the undersigned hereby exercises his option to
purchase an aggregate of _________________________ shares of Stock at a price of
$6.50 per share. The exercise of the option effected hereby is subject to and
pursuant to the terms of the Option.
The undersigned hereby exercises the Option for _________________________
shares of Stock of the shares granted to me under the Option. Cash or certified
funds in the amount of $__________ representing the exercise price for the above
shares of Stock, accompany this Notice. Please register my shares of Stock as
indicated below and mail the certificate representing the shares of Stock to me
at the following address:
_________________________
_________________________
Register shares in the following manner:
_________________________
_________________________
Mail certificate to the following address:
_________________________
_________________________
Date:_______________________ _________________________
[Signature]
