EXHIBIT 10.13
GB FOODS CORPORATION
NON-STATUTORY
STOCK OPTION AGREEMENT
THIS NON-STATUTORY STOCK OPTION AGREEMENT, hereinafter referred to as the
"Option" or the "Agreement," is made as of the 3rd day of October, 1996, between
GB FOODS CORPORATION, a Delaware corporation (hereinafter referred to as the
"COMPANY") and XXXXXX XXXXX (the "OPTIONEE"), whose current business address is:
Xxxxxxxx Manufacturing, 0000 Xxxxx 00xx Xxxxxx, Xxxxx, Xxxxxxxx 00000.
1. GRANT OF OPTION. The Board of Directors of the COMPANY hereby grants
an option on 100,000 shares of common stock of the COMPANY ("Common Stock") to
the OPTIONEE at the price and in all respects subject to the terms, definitions
and provisions of the Agreement.
2. OPTION PRICE. The option price is $6.50 per share.
3. TERM OF OPTION; VESTING. This Option is exercisable as follows:
50,000 shares may be exercised at any time after the grant of this Option until
5:00 P.M. (California time) on October 3, 2001; the remaining 50,000 shares may
be exercised at any time after October 3, 1997 until 5:00 P.M. (California time)
on October 3, 2001, provided that at October 3, 1997 OPTIONEE is an executive
officer of the COMPANY. However, in the event of a change of control of the
Company resulting in the election of any three directors other than the
constituent directors on the date of this Agreement, whether by merger,
acquisition, issuance of shares of Common Stock to a new stockholder(s), or
otherwise, and OPTIONEE is terminated as an executive officer prior to October
3, 1997, the unvested options shall become immediately exercisable and fully
vested. In the event of the death of the OPTIONEE less than one year prior to
the expiration of this Option, the expiration date of this Option shall be
extended to one year from the date of the death of the OPTIONEE.
4. EXERCISE OF OPTION.
4.1 Right to Exercise. During the lifetime of the OPTIONEE, the
Options shall be exercisable only by the OPTIONEE in whole or in part in
accordance with the terms of this Agreement. In the event of the death of the
OPTIONEE, this Option may be exercised by the executors, administrators,
personal representatives, and heirs of the OPTIONEE and by any successor trustee
of a trust to which this Option may have been transferred.
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4.2 Method of Exercise. This Option shall be exercisable by a
written notice which shall:
(a) State the election to exercise the Option, the number of
shares in respect of which it is being exercised, the person in whose name the
shares are to be issued (if the shares are issued to individuals), the names,
addresses and Social Security Numbers of such persons; and
(b) Contain such representations and agreements as to the
holder's investment intent with respect to such shares of Common Stock as are
required by law may be satisfactory to the COMPANY's counsel; and
(c) Be signed by the person or persons entitled to exercise the
Option and, if the Option is being exercised by any person or persons other than
the OPTIONEE, be accompanied by proof, satisfactory to counsel for the COMPANY,
of the right of such person or persons to exercise the Option.
(d) Be accompanied by a payment for the purchase price of those
shares with respect to which the Option is being exercised in the form of a
certified or bank cashier's or teller's check or paid in accordance with the
provisions of Section 4.4 below. The certificate or certificates for shares of
Common Stock as to which the Option shall be exercised shall be registered in
the name of the person or persons exercising the Option.
4.3 Restrictions on Exercise. As a condition to his exercise of
this Option, the COMPANY may require the person exercising this Option to comply
with applicable laws or regulations.
4.4 Alternative Forms of Payment of the Purchase Price. In
addition to payment of the purchase price of those shares with respect to which
the Option is being exercised in cash, as specified in Section 4.3 (d) above,
the purchase price of the shares with respect to which the Option is being
exercised may be paid (i) by forgiveness of indebtedness owed by the COMPANY to
the OPTIONEE; (ii) by delivery to the COMPANY of shares of Common Stock of the
COMPANY equal in value, based on the "fair market value" (as hereinafter
defined), to the exercise price; (iii) by reducing the number of shares to be
delivered to the OPTIONEE upon exercise of the option by such number of shares
of Common Stock equal in value, based on the "fair market value" (as hereinafter
defined), to the exercise price; or (iv) by the delivery, concurrently with such
exercise, of a properly executed exercise notice for the option and irrevocable
instructions to a broker promptly to deliver to the
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COMPANY the purchase price for the shares with respect to which the Option is
being exercised or from the proceeds of a loan being secured by the option
shares. The term "fair market value" shall mean the average over the previous
five trading days of the reported closing sales price on the Nasdaq Small Cap
Market, the Nasdaq National Market System, or such other national securities
exchange on which the COMPANY's shares may be traded, or if not trading on the
Nasdaq Small Cap Market, the Nasdaq National Market System, or a national
securities exchange, the average of the closing bid and asked prices in the
over-the-counter market as furnished by any New York Stock Exchange member firm
selected from time to time by the COMPANY for that purpose.
5. TRANSFERABILITY OF OPTION. This Option may be not transferred, except
to a trust established for the benefit of the OPTIONEE or by will or the laws of
descent or distribution, and may be exercised during the lifetime of the
OPTIONEE only by the OPTIONEE. In the event of the death of the OPTIONEE prior
to the exercise of this Option, this Option may be exercised only by the
executors, administrators, personal representatives, or heirs of the OPTIONEE or
by any successor trustee of a trust to which this Option may have been
transferred.
6. STOCK SUBJECT TO THE OPTION. The COMPANY shall set aside 100,000
shares of the Common Stock which it now holds as authorized and unissued shares.
If the Option should expire or become unexercisable for any reason without
having been exercised in full, the unpurchased shares which were subject thereto
shall be free from any restrictions occasioned by this Option Agreement. If the
COMPANY has been listed on a stock exchange, the COMPANY will not be required to
issue or deliver any certificate or certificates for shares to be issued
hereunder until such shares have been listed (or authorized for listing upon
official notice of issuance) upon each stock exchange on which outstanding
shares of the same class may then be listed and until the COMPANY has taken such
steps as may, in the opinion of counsel for the COMPANY, be required by law and
applicable regulations, including the rules and regulations of the Securities
and Exchange Commission, and state blue sky laws and regulations, in connection
with the issuance or sale of such shares, and the listing of such shares on each
such exchange. The COMPANY will use its best efforts to comply with any such
requirements forthwith upon the exercise of the Option.
7. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. If all or any portion of
the Option is exercised subsequent to any stock dividend, split-up,
capitalization, combination or exchange of shares, merger, consolidation,
acquisition of property or stock, separation, reorganization, or other similar
change or transaction of or by the COMPANY, as a result of which shares of any
class shall be issued in respect of outstanding shares of the class covered by
the Option or shares of the class covered by the Option shall be changed into
the same or a different number of shares of the same or another class or
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classes, the person or persons so exercising such an Option shall receive, for
the aggregate option price payable upon such exercise of the Option, the
aggregate number and class of shares equal to the number and class of shares he
or she would have had on the date of exercise had the shares been purchased for
the same aggregate price at the date the Option was granted and had not been
disposed of, taking into consideration any such stock dividend, split-up,
recapitalization, combination or exchange of shares, merger, consolidation,
acquisition of property or stock, separation, reorganization, or other similar
change or transaction; provided, however, that no fractional share shall be
issued upon any such exercise, and the aggregate price paid shall be
appropriately reduced on account of any fractional share not issued. Provided,
however, any shares which are issued at or about this option price or pursuant
to a warrant or options whose exercise price is at or above the exercise price
provided in the agreement shall not be considered to be diluted for the purpose
of this agreement and no adjustment will be made.
8. NOTICES. Each notice relating to this Agreement shall be in writing
and delivered in person or by certified mail to the proper address. Each notice
shall be deemed to have been given on the date it is received. Each notice to
the COMPANY shall be addressed to it at its principal office, at 0000 Xxxxxxx
Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000, to the attention of
the Secretary of the COMPANY. Each notice to the OPTIONEE or other person or
persons then entitled to exercise the Option shall be addressed to the OPTIONEE
or such other person or persons at the OPTIONEE's address set forth in the
heading of this Agreement. Anyone to whom a notice may be given under this
Agreement may designate a new address by notice to that effect.
9. BENEFITS OF AGREEMENT. This Agreement shall inure to the benefit of
and be binding upon each successor of the COMPANY. All obligations imposed upon
the OPTIONEE and all rights granted to the COMPANY under this Agreement shall be
binding upon the OPTIONEE's heirs, legal representatives, and successors. This
Agreement shall be the sole and exclusive source of any and all rights which the
OPTIONEE, his heirs, legal representatives, or successors may have in respect to
the Plan or any options or Common Stock granted or issued thereunder, whether to
him, or herself, or to any other person.
10. RESOLUTION OF DISPUTES. Any dispute or disagreement which should
arise under, or as a result of, or in any way relate to, the interpretation,
construction or application of this Agreement will be determined by the Board of
Directors of the COMPANY. Any determination made hereunder shall be final,
binding, and conclusive for all purposes.
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IN WITNESS WHEREOF, the COMPANY and the OPTIONEE have caused this Agreement
to be executed as of the day, month and year first above-written.
COMPANY: GB FOODS CORPORATION
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXX
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XXXXXXX X. XXXXXXX,
Chairman of the Board
By: /s/ XXXXX X. XXXXXXX
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XXXXX X. XXXXXXX,
Secretary
(CORPORATE SEAL)
OPTIONEE: /s/ XXXXXX XXXXX
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XXXXXX XXXXX
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