Exhibit 3.27
THIS OPTION HAS BEEN ISSUED PURSUANT TO EXEMPTIONS FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). 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, 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.
--------------------
FOOD EXTRUSION, INC.
NONSTATUTORY STOCK OPTION AGREEMENT
Food Extrusion, Inc., a Nevada corporation (the "Company"), hereby
grants to __________ (the "Optionee"), an option (the "Option") to purchase
a total of _________ shares of Common Stock, $0.001 par value per share, of
the Company (the "Shares"), at the per share price (the "Exercise Price") set
forth herein.
1. Nature of the Option. The Option is intended to be a
nonstatutory stock 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. Exercise Price. The Exercise Price shall be $1.00 for each
Share, subject to adjustment as provided in Section 7 below.
3. Vesting and Exercise of Option. The Option shall vest and
become exercisable during its term, subject to the provisions of Section 7
below, as follows:
(a) Vesting and Right to Exercise.
(i) The Option hereby granted shall vest and
become exercisable as to __________________ of the Shares subject to this Option
annually, commencing one year from the date of grant of this Option.
Except as otherwise provided herein and subject to the provisions set forth
herein, the Option may be exercised from time to time, in whole or in part, on a
cumulative basis as to all Shares that have vested and become exercisable in
accordance with this subsection (i) until the expiration of the Option in
accordance with the provisions of Section 6 below.
(ii) In the event of the Optionee's death,
disability or other termination of employment, the exercisability of the Option
shall be governed by Section 6 below.
(iii) The Option may not be exercised as to
fractional shares.
(b) Method of Exercise. In order to exercise any
portion of this Option as to which shares have vested, 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. The Notice of
Exercise must be accompanied by payment in full of the aggregate purchase price
for the Shares to be purchased. The certificate(s) for the Shares as to which
the Option has been exercised shall be registered in the name of Optionee.
(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 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 7 below, then the date of delivery of such Shares shall be extended for
a period necessary to take such action.
4. Method of Payment. Payment of the Exercise Price shall be
by any of the following, or a combination thereof, at the election of the
Optionee:
(a) cash; or,
(b) certified or bank cashier's check; or,
(c) in the event there exists a public market for the
Company's Common Stock on the date of exercise, 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. 5. 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. 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.
6. 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 as follows:
(a) Ten Year Term. The Option may not be exercised
more than ten (10) years from the date of grant of the Option, as set forth
below, and may be exercised during such term only in accordance with the terms
of this Agreement.
(b) Dissolution or Liquidation; Mergers and
Consolidations. Unless otherwise determined by the Board, upon the dissolution
or liquidation of the Company, or upon the sale of substantially all of the
assets of the Company, or upon any merger or consolidation if the Company is not
the surviving corporation as defined in Section 6(c) below, the Option granted
hereby shall terminate and thereupon become null and void; provided, however,
that the Optionee shall be given not less than ten (10) days notice of such
event and the Optionee may, within the period between such notice and the
effective date of such dissolution, liquidation, merger, consolidation, or sale,
exercise up to the unexercised portion of the Option in accordance with Sections
3 and 4 hereof to the extent of the Optionee's accrued rights. Any exercise of
the Option pursuant to this Section 6(b) shall be deemed to occur immediately
prior to the consummation of any such dissolution, liquidation, merger,
consolidation or sale.
(c) Surviving Corporation. The determination as to
whether or not the Company is the "Surviving Corporation" in any merger or
consolidation shall be made on the basis of the relative equity interests of the
stockholders of the Company existing after such merger or consolidation as
follows: If the holders of the outstanding voting securities of the Company
prior to such merger or consolidation own equity securities possessing more than
50% of the voting power of the successor Company after such merger or
consolidation, then for purposes of this Agreement the Company shall be the
Surviving Corporation. In all other cases, the Company shall not be the
Surviving Corporation. In determining the percentage ownership of the
stockholders of the Company in the successor corporation immediately following a
consolidation or merger, securities which they owned immediately prior to such
consolidation or merger as stockholders of another party to the transaction
shall be disregarded.
(d) Death of the Optionee. In the event of the death
of the Optionee during the term of the Option, the Option may be exercised at
any time prior to the expiration of the Option term as set forth in
subparagraphs 6(a) and (b) above by the administrator or executor of the
Optionee's estate or by a person who acquires the right to exercise the Option
by bequest or inheritance; provided that, the Option may be exercised only to
the extent of the accrued right to exercise at the time of the termination of
Optionee's employment or Optionee's death, whichever occurs first.
(e) Disability of Optionee. In the event of the
disability of the Optionee during the term of the Option, the Option may be
exercised at any time within one (1) year following the date of disability;
provided that, the Option may be exercised only to the extent of the accrued
right to exercise at the time of the termination of Optionee's status an
employee or date on which Optionee becomes disabled, whichever occurs first.
(f) Termination of Status as Employee. If the
Optionee shall cease to be an employee of the Company for any reason other than
permanent and total disability or death, the Optionee may exercise his or her
Option to the extent that he or she was entitled to exercise it at the date of
such termination at any time within ninety (90) days following the date of
termination, subject to the condition that the Option may not be exercised after
the expiration of the Option term.
7. Adjustments Upon Changes in Capitalization. Subject to any
required action by the stockholders 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 or
recapitalizations.
8. Rights of Stockholder. The Optionee shall have no rights as
a stockholder 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.
9. Not Employment Contract. Nothing in this Agreement shall
confer upon the Optionee any right to continue in the employ of the Company or
shall interfere with or restrict in any way the rights of the Company, which are
hereby expressly reserved, to discharge the Optionee at any time for any reason
whatsoever, with or without cause, subject to the provisions of applicable law.
This is not an employment contract.
10. 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. The Optionee agrees to
notify the Company immediately in the event of any disqualifying disposition
(within the meaning of Section 421(b) of the Code) of the shares acquired upon
exercise of an incentive stock option, if applicable. 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, or
a disqualifying disposition of the shares acquired upon exercise of an incentive
stock option, if applicable, 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 of the Company
at that time.
DATE OF GRANT: July 1, 1996
FOOD EXTRUSION, INC.
By:
------------------------
Name:
Title:
The Optionee acknowledges receipt of the Stock Option
Agreement 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
or a committee 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 foregoing 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, Inc. (or a duly authorized committee thereof) 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 ______________, 1996, 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:
----------------------------
DATE OF PURCHASE:
----------------------------
MODE OF PAYMENT:
----------------------------
(Certified check or cash)
The shares should be issued as follows:
NAME:
----------------------------
ADDRESS:
----------------------------
Signed:
----------------------------
Dated:
----------------------------
Please send this notice of exercise to:
Food Extrusion, Inc.
0000 Xxxx'x Xxxxxx Xxxxx
Xx Xxxxxx Xxxxx, Xxxxxxxxxx 00000
