EXHIBIT 99.5
HORIZON ORGANIC HOLDING CORPORATION
STOCK OPTION AGREEMENT
----------------------
This Agreement is made effective as of the 7th day of August, 1997,
between Horizon Organic Holding Corpration, a Colorado corporation (the
"Corporation") and Xxxxx McGoldnick (the "Consultant").
1. Stock Option. Pursuant to the Stock Option awards approved by the
------------
directors of the Corporation on August 7, 1997, the Corporation hereby grants to
Consultant an option to purchase 2,000 shares of the authorized and unissued
common stock of the Corporation at a price of $4.85 per share (the "Option").
2. Time and Method of Exercise of the Option. 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 Exhibit A 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.
Upon Consultant's exercise of this Option, as a condition to the Corporation's
obligation to issue such shares, Consultant shall be obligated to execute and
deliver the Corporation's Shareholders' Agreement in its then current form.
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) three years from the
--------------------
effective date hereof; 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.
5. Investment Requirement. Consultant 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, as amended, any
rules promulgated thereunder, or any applicable state statute. Consultant hereby
confirms that he has been advised of and understands the restrictions on resale
of stock by virtue of Rule 144 promulgated under the Securities Act of 1933.
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 Consultant 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. Consultant hereby acknowledges that the
---------------------------
approval and grant of the Option pursuant to this Agreement shall not be
construed as giving Consultant any legal or equitable right against the
Corporation or any other person except as specifically provided in this
Agreement. Consultant 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 Consultant 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
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
In the case of Director:
Xxxxx McGoldnick
_________________
_________________
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 Colorado.
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.
2.
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 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.
HORIZON ORGANIC HOLDING CORPORATION
By: /s/ Barnet X. Xxxxxxxx
--------------------------------
Its: President
-------------------------------
/s/ Xxxxx McGoldnick
-------------------------------
Xxxxx McGoldnick
3.
EXHIBIT A
NOTICE OF EXERCISE OF STOCK OPTION
Horizon Organic Holding Corporation
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Ladies and Gentlemen:
The undersigned has been granted options to purchase shares of the common
stock (the "Stock") of Horizon Organic Dairy, Inc., a Colorado corporation (the
"Corporation") pursuant to the terms of a 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 $____ . The
exercise of the option effected hereby is subject to and pursuant to the terms
of the Plan and the Option.
Cash or certified funds in the amount of $ ______, representing the
aggregate 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:
_________________________
(Print or Type)
Mail certificate to the following address:
_________________________
(Print or Type)
______________________________
Signature
Name: ________________________
(Print or Type)
Date: ________________________
4.
