<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 30, 1998
REGISTRATION NO. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
HORIZON ORGANIC HOLDING CORPORATION
(Exact Name of Registrant as Specified in its Charter)
-------------------------
Delaware 84-1405007
(State of Incorporation) (I.R.S. Employer Identification No.)
-------------------------
6311 Horizon Lane
LONGMONT, COLORADO 80503
-------------------------
(Address of Principal Executive Offices)
1998 EQUITY INCENTIVE PLAN
1998 EMPLOYEE STOCK PURCHASE PLAN
OPTIONS GRANTED OUTSIDE OF ANY PLAN
-------------------------
(Full Title of the Plan)
BARNET M. FEINBLUM
PRESIDENT AND CHIEF EXECUTIVE OFFICER
HORIZON ORGANIC HOLDING CORPORATION
6311 HORIZON LANE
LONGMONT, COLORADO 80503
(303) 530-2711
-------------------------
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
COPIES TO:
JAMES C.T. LINFIELD, ESQ.
CARRIE L. SCHIFF, ESQ.
COOLEY GODWARD LLP
2595 Canyon Boulevard, Suite 250
BOULDER, COLORADO 80302-6737
(303) 546-4000
-------------------------
<PAGE>
CALCULATION OF REGISTRATION FEE
===============================================================================
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED SHARE (1) PRICE REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock (par 295,625 $ 5.30 $ 14,012,090.52 $ 4,133.57
value $0.001) 704,375 $ 16.69
288,393 $ 2.39
=====================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rules 457(c) and 457(h)(1). The price per
share and aggregate offering price are based upon (a) the weighted average
exercise price for shares subject to options previously granted under the
Registrant's 1998 Equity Incentive Plan and for options granted outside of
any plan pursuant to Rule 457(h)(1) under the Securities Act of 1933, as
amended (the "Securities Act"), and (b) for shares granted after the date
hereof, the average of the high and low prices of the Registrant's Common
Stock on September 28, 1998, as reported on The Nasdaq National Market
(National Market).
<TABLE>
<CAPTION>
TYPE OF SHARES NUMBER OF SHARES OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF REGISTRATION FEE
SHARE PRICE
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Shares issuable 295,625 $ 5.30 $1,566,812.50 $ 462.21
pursuant to
options
outstanding under
the 1998 Equity
Incentive Plan
- ------------------------------------------------------------------------------------------------------------------------
Shares issuable 454,375 $ 16.69 $7,583,518.75 $ 2,237.14
upon exercise of
options available
for grant under
the 1998 Equity
Incentive Plan
- ------------------------------------------------------------------------------------------------------------------------
Shares issuable 288,393 $ 2.39 $ 689,259.27 $ 203.33
pursuant to
options
outstanding
outside of any Plan
- ------------------------------------------------------------------------------------------------------------------------
Shares issuable 250,000 $ 16.69 $ 4,172,500.00 $ 1,230.89
under the 1998
Employee Stock
Purchase Plan
========================================================================================================================
</TABLE>
Approximate date of commencement of proposed sale to the public: As soon
as practicable after this Registration Statement becomes effective.
1.
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Horizon Organic Holding Corporation (the
"Registrant") with the Securities and Exchange Commission are incorporated by
reference into this Registration Statement:
(A) The Registrant's Prospectus dated July 2, 1998 filed pursuant to Rule
424(b) under the Securities Act that contains audited financial statements for
the Registrant's latest fiscal year for which such statements have been filed.
(B) The Registrant's Quarterly Report on Form 10-Q (File No. 000-24337) for
the fiscal quarter ended June 30, 1998.
(C) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A (File No. 000-24337).
(D) All reports and other documents hereafter filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), prior to the filing of a post-
effective amendment which indicates that all of the securities offered hereby
have been sold or which deregisters all such securities then remaining unsold.
Any statement contained in a document incorporated, or deemed to be
incorporated, by reference herein or contained in this Registration Statement
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any other
subsequently filed document which also is, or is deemed to be, incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
DESCRIPTION OF SECURITIES
Not applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law, the Registrant
has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act of 1933, as amended (the "Securities Act").
The Registrant's Amended and Restated Certificate of Incorporation provides
for the elimination of liability for monetary damages for breach of the
directors' fiduciary duty of care to the Registrant and its stockholders. These
provisions do not eliminate the directors' duty of care and, in appropriate
circumstances, equitable remedies such as injunctive or other forms of non-
monetary relief will remain available under Delaware law. In addition, each
director will continue to be subject to liability for breach of the director's
duty of loyalty to the Registrant, for acts or omissions not in good faith or
involving intentional misconduct, for knowing violations of law, for any
transaction from which the director derived an improper personal benefit, and
for payment of dividends or approval of stock repurchases or redemptions that
are unlawful under Delaware law. The provision does not affect a director's
responsibilities under any other laws, such as the federal securities laws or
state or federal environmental laws.
The Registrant has entered into indemnity agreements with each of its
directors and executive officers pursuant to which the Registrant has agreed to
indemnify each director and executive officer against expenses and
2.
<PAGE>
losses incurred for claims brought against them by reason of their being a
director or executive officer of the Registrant, and the Registrant maintains
directors' and officers' liability insurance.
EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
3.2* Amended and Restated Certificate of Incorporation.
3.4* Amended and Restated Bylaws.
4.2* Specimen stock certificate.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Eide Bailly LLP.
23.3 Consent of Cooley Godward LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included on page 5).
99.1* 1998 Equity Incentive Plan.
99.2* 1998 Employee Stock Purchase Plan.
99.3 Form of Incentive Stock Option Agreement between the Company and
Marc Peperzak.
99.4 Form of Non-Qualified Stock Option Agreement dated January 10,
1998.
99.5 Stock Option Agreement between the Company and Peter McGoldnick
dated August 7, 1997.
99.6 Form of Stock Option Agreement dated May 14, 1997.
99.7 Form of Stock Option Agreement dated July 9, 1996.
99.8 Stock Option Agreement between the Company and Barnet M. Feinblum
dated June 1, 1995.
99.9 Stock Option Agreement between the Company and Barnet M. Feinblum
dated June 1, 1995.
99.10 Form of Stock Option Agreement dated May 15, 1995.
99.11 Non-Qualified Stock Option Agreement between the Company and Rudra
Altman dated November 1, 1996.
3.
<PAGE>
________________
* Filed as an exhibit to the Registration Statement on Form S-1
(Registration No. 333-51465) and incorporated herein by reference.
UNDERTAKINGS
1. The Registrant hereby undertakes:
(A) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(I) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(II) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the Registration Statement;
(III) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in the Registration Statement.
(B) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(C) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
2. The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
4.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Longmont, State of Colorado, on the 30th day of
September, 1998.
HORIZON ORGANIC HOLDING CORPORATION
By: /S/ Barnet M. Feinblum
_____________________________________
Barnet M. Feinblum
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Barnet M. Feinblum and Don J. Gaidano,
and each of them, as his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
or his substitutes or substitute, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/S/ Marcus B. Peperzak Chairman of the Board of Directors September 30, 1998
- ----------------------------------------
Marcus B. Peperzak
/S/ Barnet M. Feinblum President, Chief Executive Officer, Director September 30, 1998
- ---------------------------------------- (Principal Executive Officer)
Barnet M. Feinblum
/S/ Don J. Gaidano Vice President, Finance & Administration, September 30, 1998
- ---------------------------------------- Chief Financial Officer, and Treasurer
Don J. Gaidano (Principal Financial and Accounting Officer)
/S/ Paul B. Repetto Vice President, Marketing, Director September 30, 1998
- ----------------------------------------
Paul B. Repetto
/S/ Mark A. Retzloff Vice President, Sales, Director September 30, 1998
- ----------------------------------------
Mark A. Retzloff
Director September 30, 1998
- ----------------------------------------
Thomas D. McCloskey, Jr.
Director September 30, 1998
- ----------------------------------------
J. Thomas Clark
</TABLE>
5.
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Director September 30, 1998
- ----------------------------------------
Clark R. Mandigo II
/S/ Richard L. Robinson Director September 30, 1998
- ----------------------------------------
Richard L. Robinson
Director September 30, 1998
- ----------------------------------------
G. Irwin Gordon
</TABLE>
6.
<PAGE>
EXHIBIT INDEX
Exhibit
NUMBER DESCRIPTION
3.2* Amended and Restated Certificate of Incorporation.
3.4* Amended and Restated Bylaws.
4.2* Specimen stock certificate.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Eide Bailly LLP.
23.3 Consent of Cooley Godward LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included on page 5).
99.1* 1998 Equity Incentive Plan.
99.2* 1998 Employee Stock Purchase Plan.
99.3 Form of Incentive Stock Option Agreement between the Company and Marc
Peperzak.
99.4 Form of Non-Qualified Stock Option Agreement dated January 10, 1998.
99.5 Stock Option Agreement between the Company and Peter McGoldnick dated
August 7, 1997.
99.6 Form of Stock Option Agreement dated May 14, 1997.
99.7 Form of Stock Option Agreement dated July 9, 1996.
99.8 Stock Option Agreement between the Company and Barnet M. Feinblum
dated June 1, 1995.
99.9 Stock Option Agreement between the Company and Barnet M. Feinblum
dated June 1, 1995.
99.10 Form of Stock Option Agreement dated May 15, 1995.
99.11 Non-Qualified Stock Option Agreement between the Company and Rudra
Altman dated November 1, 1996.
________________
* Filed as an exhibit to the Registration Statement on Form S-1 (Registration
No. 333-51465) and incorporated herein by reference.
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF COOLEY GODWARD LLP]
September 30, 1998
Horizon Organic Holding Corporation
6311 Horizon Lane
Longmont, Colorado 80503
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Horizon Organic Holding Corporation (the "Registrant") of a
Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission covering the offering of (i) up to 750,000
shares of the Registrant's Common Stock, $0.001 par value (the "Common Stock"),
pursuant to the Registrant's 1998 Equity Incentive Plan (the "Equity Incentive
Plan"), (ii) up to 250,000 shares of the Registrant's Common Stock pursuant to
the Registrant's 1998 Employee Stock Purchase Plan (collectively with the Equity
Incentive Plan, the "Plans") and (iii) up to 288,393 shares of the Registrant's
Common Stock which are to be issued pursuant to stock option agreements (the
"Agreements"). The shares to be issued pursuant to the Plans and the Agreements
are referred to herein as the "Shares."
In connection with this opinion, we have (i) examined the Registration Statement
and the related Prospectus, and (ii) reviewed the Registrant's Amended and
Restated Certificate of Incorporation and Amended and Restated Bylaws, as
amended, the Agreements and such other documents, records, certificates,
memoranda and other instruments as we deem necessary as a basis for this
opinion. We also have assumed the genuineness and authenticity of all documents
submitted to us as originals, the conformity to originals of all documents
submitted to us as copies thereof, and the due execution and delivery of all
documents where due execution and delivery are a prerequisite to the
effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when issued and sold in accordance with the Plans or the
Agreements, the Registration Statement and the related Prospectus, will be
validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
Cooley Godward LLP
By:/S/ James C.T. Linfield
____________________________
James C.T. Linfield
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
-------------------------------
THE BOARD OF DIRECTORS AND STOCKHOLDERS
HORIZON ORGANIC HOLDING COMPANY:
Our report dated May 6, 1998, contains an explanatory section that states that
we did not audit the financial statements of Sunrise Organic Farms, Inc. (a
26.825 percent and 23.78 percent owned investee company as of December 28, 1996
and December 31, 1995, respectively). The financial statements of Sunrise
Organic Farms, Inc. were audited by other auditors whose report has been
furnished to us, and our opinion, insofar as it relates to the amounts included
for Sunrise Organic Farms, Inc. for the 52 weeks ended December 28, 1996 and the
year ended December 31, 1995, respectively, is based solely on the report of the
other auditors.
We consent to the incorporation by reference in the registration statement of
Form S-8 of Horizon Organic Holding Corporation of our report dated May 6, 1998
relating to the consolidated balance sheets of Horizon Organic Holding
Corporation and subsidiaries as of December 31, 1997 and December 28, 1996, and
the related consolidated statements of operations, stockholders' equity and cash
flows for the year ended December 31, 1997, the 52 weeks ended December 28, 1996
and the year ended December 31, 1995, which report appears in the Company's
registration statement of Form S-I/A (No. 333-51465).
/S/ KPMG Peat Marwick LLP
KPMG PEAT MARWICK LLP
Boulder, Colorado
September 28, 1998
<PAGE>
EXHIBIT 23.2
[EIDE BAILLY LLP LETTERHEAD APPEARS HERE]
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to use of our report dated April 9, 1997, with
respect to the financial statements of Sunrise Organic Farms, Inc. (f/k/a Aurora
Dairy Corporation of Idaho, Inc.) (Sunrise) as of December 31, 1996 in the
Registration Statement (Form S-8) of Horizon Organic Holding Corporation. The
financial statements as of December 31, 1996 and 1995 were audited by Eide
Helmeke PLLP, who merged with Charles Bailly & Company PLLP as of May 1, 1998,
and whose report dated April 9, 1997, expressed an unqualified opinion.
/S/ Eide Bailly LLP
EIDE BAILLY LLP
September 30, 1998
Fargo, North Dakota
<PAGE>
EXHIBIT 99.3
INCENTIVE 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
Marc Peperzak (the "EMPLOYEE").
1. STOCK OPTION. Pursuant to the Incentive Stock Option Plan dated
October 25, 1995 of Horizon Organic Dairy, Inc., a Colorado corporation and
wholly-owned subsidiary of the Corporation, which plan as assumed by the
Corporation on May 29, 1997 (the "PLAN"), the Corporation hereby grants to the
Employee an option to purchase 15,000 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 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.
(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.
(C) ACCELERATED VESTING. Notwithstanding the restrictions on exercise
set forth in paragraph 2(b) above, Employee may exercise this Option for all the
shares covered by this Option in the event: (i) Employee's employment with the
Corporation terminates because of Employee's death or disability; or (ii) the
Corporation participates in a merger, share exchange or consolidation with
another corporation in which the Corporation is not the survivor, the
Corporation sells all or substantially all its assets, or any person or party
acquires control of a majority of the issued and outstanding shares of the
Corporation's common stock.
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) December 17, 2002;
(ii) three months following the termination, for any reason other than death or
disability, of the employment of the Employee by the Corporation; (iii) one year
following the termination, on account of death or disability, of the employment
of the Employee by the Corporation; or (iv) 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 Employee hereby agrees to purchase any
shares by exercise of the Option for investment purposes only and not to resell
any such shares in any
1.
<PAGE>
manner violating the Securities Act of 1933 (the "ACT"), as amended, any rules
promulgated thereunder, or any applicable state statute. Employee 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 Employee only by him.
7. NOTICE TO THE CORPORATION ON SALE OF OPTION SHARES. If Employee sells
any Option Shares (i) within two years of the date of this Agreement, or (ii)
within one year of the date the Option Shares are transferred to him pursuant to
this Agreement, Employee shall notify the Corporation of the date and terms of
such sale. Employee agrees to permit the Corporation to withhold any required
income and payroll taxes from his compensation to the extent required under
Treasury Regulation Section 1.83-6 to permit the Corporation to obtain a
deduction for the amount of compensation income realized by the Employee as a
result of such sale. This notice requirement shall be indicated by a
restrictive legend on any share certificates issued to Employee pursuant to the
terms of this Agreement.
8. 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.
9. NO RIGHTS; NO OTHER OPTIONS. Employee hereby acknowledges that the
adoption of the Plan and the grant of the Option pursuant to this Agreement
shall not be construed as giving Employee any legal or equitable right against
the Corporation or any other person except as specifically provided in this
Agreement, nor shall this Agreement be construed as giving Employee the right to
be retained in the employment of the Corporation. Employee 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 Employee and the Corporation.
10. EMPLOYEE SHAREHOLDERS AGREEMENT. Employee agrees and acknowledges
that Employee shall be required to enter into an Employee Shareholders
Agreement, as a condition to the exercise of the Option, which shall restrict
the Employee's ability to pledge, transfer or sell the Corporation's stock
acquired upon exercise of the Option, shall grant the Corporation a right of
first refusal on such stock, and shall grant the Corporation certain redemption
rights on such stock. The Employee Shareholders Agreement shall be in such form
as adopted by the board of directors of the Corporation from time to time.
11. 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):
2.
<PAGE>
In the case of the Corporation:
Horizon Organic Holding Corporation
6311 Horizon Lane
Longmont, CO 80503
In the case of Employee:
Marc Peperzak
----------------------------
----------------------------
----------------------------
12. 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.
13. 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.
14. 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.
15. SEVERABILITY. Notwithstanding paragraph 16 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 shah 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.
16. 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.
17. 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.
3.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement on the above
date.
ATTEST: HORIZON ORGANIC HOLDING CORPORATION
By:_______________________ By:_________________________
Its:______________________ Its:________________________
EMPLOYEE:
__________________________ Employee's Social
Marc Peperzak Security Number:______________
4.
<PAGE>
ATTACHMENT III
NOTICE OF EXERCISE OF STOCK OPTION
Horizon Organic Holding Corporation
6311 Horizon Lane
Longmont, CO 80503
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 Incentive Stock
Option Plan (the "PLAN"), Stock Option Grant Notice ("GRANT NOTICE") and
Incentive 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 Plan and 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]
5.
<PAGE>
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.
<PAGE>
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
6311 Horizon Lane
Longmont, CO 80305
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.
<PAGE>
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.
<PAGE>
ATTACHMENT II
NOTICE OF EXERCISE OF STOCK OPTION
Horizon Organic Holding Corporation
6311 Horizon Lane
Longmont, CO 80503
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]
<PAGE>
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 Peter 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.
<PAGE>
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
7490 Clubhouse Road, Suite 103
Boulder, CO 80301
In the case of Director:
Peter 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.
<PAGE>
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 M. Feinblum
--------------------------------
Its: President
-------------------------------
/s/ Peter McGoldnick
-------------------------------
Peter McGoldnick
3.
<PAGE>
EXHIBIT A
NOTICE OF EXERCISE OF STOCK OPTION
Horizon Organic Holding Corporation
7490 Clubhouse Road, Suite 103
Boulder, CO 80301
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.
<PAGE>
EXHIBIT 99.6
HORIZON ORGANIC DAIRY, INC.
STOCK OPTION AGREEMENT
----------------------
This Agreement is made as of the 14 day of May, 1997, between Horizon
Organic Holding Corporation, a Delaware corporation (the "Corporation") and
________________ (the "Director").
1. Stock Option. Pursuant to the Stock Option awards approved by the
------------
directors of the Corporation on May 14, 1997, the Corporation hereby grants to
the Director an option to purchase 3,000 shares of the authorized and unissued
common stock of the Corporation at a price of $4.85 per share (the "Option").
Commencing on the first anniversary of the date of this Agreement, the Option
may be exercised only to the extent of twenty-five percent of the total number
of shares covered by this Option in any year. An additional twenty-five percent
of the total number of shares covered by this Option may be exercised on each
successive anniversary of the date of this Agreement. The provisions of this
paragraph 1 are limited as otherwise provided in paragraph 4. The Corporation
may accelerate this vesting schedule in its discretion.
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.
3. Adjustment of the Option. In the event of any change in the capital
------------------------
structure of the Corporation through consolidation,
1.
<PAGE>
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) May __, 2002; or
--------------------
(ii) upon the completion of the merger or sale of substantially all of the stock
or assets of the Corporation, or its parent or subsidiary, with or to another
corporation.
5. Investment Requirement. The Director 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. Director
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 Director 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.
8. No Rights: No Other Options. Director hereby acknowledges that the
---------------------------
approval and grant of the Option pursuant to this
2.
<PAGE>
Agreement shall not be construed as giving Director any legal or equitable right
against the Corporation or any other person except as specifically provided in
this Agreement. Director 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 Director 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
7490 Clubhouse Road, Suite 103
Boulder, CO 80301
In the case of Director:
_________________
_________________
_________________
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
3.
<PAGE>
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.
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
4.
<PAGE>
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.
16. Assumption of Horizon Organic Dairy, Inc. By execution hereof,
-----------------------------------------
Director agrees and acknowledges that: (i) the Corporation has assumed the
options issued by Horizon Organic Dairy, Inc., a Colorado corporation and
wholly-owned subsidiary of the Corporation; (ii) upon exercise of any such
option for stock in Horizon Organic Dairy, Inc. which Director holds, Director
shall receive, on a share for share basis, stock in the Corporation; and (iii)
Director waives any right to receive shares of stock in Horizon Organic Dairy,
Inc. upon exercise of such option and agrees to accept stock in the Corporation
in lieu thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement on the above
date.
HORIZON ORGANIC HOLDING CORPORATION
By: _________________________________
Its:__________________________________
____________________________________
5.
<PAGE>
EXHIBIT A
NOTICE OF EXERCISE OF STOCK OPTION
Horizon Organic Holding Corporation
7490 Clubhouse Road, Suite 103
Boulder, CO 80301
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 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: ________________________
6.
<PAGE>
EXHIBIT 99.7
HORIZON ORGANIC DAIRY, INC.
STOCK OPTION AGREEMENT
----------------------
This Agreement is made as of the 9th day of July, 1996, between Horizon
Organic Dairy, Inc, a Colorado corporation (the "Corporation") and
________________ (the "Director").
1. Stock Option. Pursuant to the Stock Option awards approved by the
------------
directors of the Corporation on July 9, 1996, the Corporation hereby grants to
the Director an option to purchase 5,000 shares of the authorized and unissued
common stock of the Corporation at a price of $3.22 per share (the "Option").
Commencing on the first anniversary of the date of this Agreement, the Option
may be exercised only to the extent of twenty-five percent of the total number
of shares covered by this Option in any year. An additional twenty-five percent
of the total number of shares covered by this Option may be exercised on each
successive anniversary of the date of this Agreement. The provisions of this
paragraph 1 are limited as otherwise provided in paragraph 4. The Corporation
may accelerate this vesting schedule in its discretion.
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.
3. Adjustment of the Option. In the event of any change in the capital
------------------------
structure of the Corporation through consolidation,
1.
<PAGE>
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) July 9, 2001; or
--------------------
(ii) upon the completion of the merger or sale of substantially all of the stock
or assets of the Corporation, or its parent or subsidiary, with or to another
corporation.
5. Investment Requirement. The Director 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. Director
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 Director 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.
8. No Rights: No Other Options. Director hereby acknowledges that the
---------------------------
approval and grant of the Option pursuant to this
2.
<PAGE>
Agreement shall not be construed as giving Director any legal or equitable right
against the Corporation or any other person except as specifically provided in
this Agreement. Director 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 Director 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 Dairy, Inc.
7490 Clubhouse Road, Suite 103
Boulder, CO 80301
In the case of Director:
_________________
_________________
_________________
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
3.
<PAGE>
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.
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
4.
<PAGE>
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 DAIRY, INC.
By: _________________________________
Its:__________________________________
______________________________________
5.
<PAGE>
EXHIBIT A
NOTICE OF EXERCISE OF STOCK OPTION
Horizon Organic Dairy, Inc.
7490 Clubhouse Road, Suite 103
Boulder, CO 80301
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: ________________________
6.
<PAGE>
EXHIBIT 99.8
NATURAL HORIZONS, INC.
STOCK OPTION AGREEMENT
----------------------
This Agreement is made effective as of the 1st day of June, 1995, between
Natural Horizons, Inc, a Colorado corporation (the "Corporation") and Barnet M.
Feinblum (the "Director").
1. STOCK OPTION. Pursuant to the Stock Option awards approved by the
------------
shareholders and directors of the Corporation on February 10, 1995, the
Corporation hereby grants to the Director an option to purchase 15,000 shares of
the authorized and unissued common stock of the Corporation at a price of $1.25
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.
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) February 10, 2004;
--------------------
or (ii) upon the completion of the merger or sale of substantially all of the
stock or assets of the
1.
<PAGE>
Corporation, or its parent or subsidiary, with or to another corporation.
5. INVESTMENT REQUIREMENT. The Director 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. Director
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 Director 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.
8. NO RIGHTS: NO OTHER OPTIONS. Director hereby acknowledges that the
---------------------------
approval and grant of the Option pursuant to this Agreement shall not be
construed as giving Director any legal or equitable right against the
Corporation or any other person except as specifically provided in this
Agreement. Director 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
2.
<PAGE>
expressly set forth in this Agreement or in another written agreement executed
by Director 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:
Natural Horizons, Inc.
7490 Clubhouse Road, Suite 103
Boulder, CO 80301
In the case of Director:
Barnet M. Feinblum
______________
______________
10. RELATION TO EMPLOYMENT AGREEMENT. The Option awarded hereunder is the
--------------------------------
same, and not in addition to, the option for 15,000 shares of the Corporation's
common stock referenced in Section 7(b) of Director's Employment Agreement with
the Corporation dated effect May 15, 1995.
11. 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
3.
<PAGE>
in a writing signed by the duly authorized representatives of all of the parties
hereto.
12. 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.
13. 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.
14. 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.
15. ALL TERMS MATERIAL. The parties hereby expressly acknowledge and
------------------
agree that each and every term and condition of
4.
<PAGE>
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.
16. 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: NATURAL HORIZONS, INC.
By: /s/ Paul B. Repetto By: /s/ Mark A. Retzloff
---------------------------- --------------------------
Its: Secretary Its: Vice President
--------------------------- -------------------------
/s/Barnet M. Feinblum
-----------------------------
Barnet M. Feinblum
5.
<PAGE>
EXHIBIT A
NOTICE OF EXERCISE OF STOCK OPTION
Natural Horizons, Inc.
7490 Clubhouse Road, Suite 103
Boulder, CO 80301
Ladies and Gentlemen:
The undersigned has been granted options to purchase shares of the common
stock (the "Stock") of Natural Horizons, 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:
---------------------------
6.
<PAGE>
EXHIBIT 99.9
NATURAL HORIZONS, INC.
STOCK OPTION AGREEMENT
----------------------
This Agreement is made effective as of the 1st day of June, 1995, between
Natural Horizons, Inc, a Colorado corporation (the "Corporation") and Barnet M.
Feinblum ("Feinblum").
1. STOCK OPTION. Pursuant to Section 7(c) of the Employment Agreement
------------
dated effective May 15, 1995 between the Corporation and Feinblum, the
Corporation hereby grants to Feinblum an option to purchase 135,000 shares of
the authorized and unissued common stock of the Corporation at a price of $2.10
per share (the "Option").
2. VESTING SCHEDULE. The Option shall vest in accordance with the
----------------
schedule set forth below:
Calendar Year Percentage Vested
------------- -----------------
1995 10%
1996 20%
1997 30%
1998 40%
3. TIME AND METHOD OF EXERCISE OF THE OPTION. The Option, to the extent
-----------------------------------------
vested, 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. The Option may only be exercised to the extent that it
has vested pursuant to the schedule set forth in Section 2 above.
1.
<PAGE>
4. 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.
5. EXPIRATION OF OPTION. The Option shall expire (i) December 31, 2001;
--------------------
or (ii) upon the completion of the merger or sale of substantially all of the
stock or assets of the Corporation, or its parent or subsidiary, with or to
another corporation.
6. INVESTMENT REQUIREMENT. Feinblum 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. Feinblum 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.
7. 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 Feinblum only by him.
8. BENEFIT. Except as otherwise provided herein, this Agreement shall be
-------
binding upon and shall inure to the benefit of
2.
<PAGE>
the parties and their respective heirs, personal representatives, successors and
assigns.
9. NO RIGHTS: NO OTHER OPTIONS. Feinblum hereby acknowledges that the
---------------------------
approval and grant of the Option pursuant to this Agreement shall not be
construed as giving Feinblum any legal or equitable right against the
Corporation or any other person except as specifically provided in this
Agreement. Feinblum 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 Feinblum and the Corporation.
10. 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:
Natural Horizons, Inc.
7490 Clubhouse Road, Suite 103
Boulder, CO 80301
In the case of Feinblum:
Barnet M. Feinblum
________________
________________
11. RELATION TO EMPLOYMENT AGREEMENT. The Option awarded hereunder is the
--------------------------------
same, and not in addition to, the option for 135,000 shares of the Corporation's
common stock referenced in
3.
<PAGE>
Section 7(c) of Feinblum's Employment Agreement with the Corporation dated
effective May 15, 1995.
12. 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.
13. 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.
14. 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.
4.
<PAGE>
15. 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.
16. 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.
17. 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: NATURAL HORIZONS, INC.
By: /s/ Paul B. Repetto By: /s/ Mark A. Retzloff
------------------------- -------------------------
Its:Secretary Its: Vice President
------------------------ ------------------------
/s/Barnet M. Feinblum
----------------------------
Barnet M. Feinblum
5.
<PAGE>
EXHIBIT 99.10
NATURAL HORIZONS, INC.
STOCK OPTION AGREEMENT
----------------------
This Agreement is made as of the 15th day of May, 1995, between Natural
Horizons, Inc, a Colorado corporation (the "Corporation") and ___________ (the
"Director").
1. STOCK OPTION. Pursuant to the Stock Option awards approved by the
------------
shareholders and directors of the Corporation on February 10, 1995, the
Corporation hereby grants to the Director an option to purchase 15,000 shares of
the authorized and unissued common stock of the Corporation at a price of $1.25
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.
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) February 10, 2004;
--------------------
or (ii) upon the completion of the merger or sale of substantially all of the
stock or assets of the
1.
<PAGE>
Corporation, or its parent or subsidiary, with or to another corporation.
5. INVESTMENT REQUIREMENT. The Director 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. Director
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 Director 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.
8. NO RIGHTS: NO OTHER OPTIONS. Director hereby acknowledges that the
---------------------------
approval and grant of the Option pursuant to this Agreement shall not be
construed as giving Director any legal or equitable right against the
Corporation or any other person except as specifically provided in this
Agreement. Director 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
2.
<PAGE>
expressly set forth in this Agreement or in another written agreement executed
by Director 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:
Natural Horizons, Inc.
7490 Clubhouse Road, Suite 103
Boulder, CO 80301
In the case of Director:
__________________
__________________
__________________
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
3.
<PAGE>
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.
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
4.
<PAGE>
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: NATURAL HORIZONS, INC.
By:__________________________ By: _________________________________
Its: _________________________ Its:_________________________________
_____________________________________
5.
<PAGE>
EXHIBIT A
NOTICE OF EXERCISE OF STOCK OPTION
Natural Horizons, Inc.
7490 Clubhouse Road, Suite 103
Boulder, CO 80301
Ladies and Gentlemen:
The undersigned has been granted options to purchase shares of the common
stock (the "Stock") of Natural Horizons, 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: ________________________
6.
<PAGE>
EXHIBIT 99.11
HORIZON ORGANIC DAIRY, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
This Agreement is made effective as of the 1st day of November, 1996,
between Horizon Organic Dairy, Inc., a Colorado corporation (the "Corporation")
and Rudra Altman ("Altman").
1. STOCK OPTION. Pursuant to the Consulting Agreement of March 7, 1996,
------------
approved by the Directors of the Corporation on April 9, 1996, the Corporation
hereby grants to Altman an option to purchase 2,143 shares of the authorized and
unissued common stock of the Corporation at a price of $3.50 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.
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) October 31,1999; or
--------------------
(ii) upon the completion of the merger or sale of substantially all of the stock
or assets of the Corporation, or its parent or subsidiary, with or to another
corporation.
5. INVESTMENT REQUIREMENT. Altman 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. Altman 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 Altman only by him.
1.
<PAGE>
Non-Qualified Stock Option Agreement
Page 2
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.
8. NO RIGHTS: NO OTHER OPTIONS. Altman hereby acknowledges that the
---------------------------
approval and grant of the Option pursuant to this Agreement shall not be
construed as giving Altman any legal or equitable right against the Corporation
or any other person except as specifically provided in this Agreement. Altman
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 Altman 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 Dairy, Inc.
7490 Clubhouse Road, Suite 103
Boulder, CO 80301
In the case of Altman:
Rudra Altman
--------------------------------
--------------------------------
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
2.
<PAGE>
Non-Qualified Stock Option Agreement
Page 3
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.
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.
3.
<PAGE>
Non-Qualified Stock Option Agreement
Page 4
IN WITNESS WHEREOF, the parties have executed this Agreement on the above
date.
ATTEST: HORIZON ORGANIC DAIRY, INC.
By: /s/ Paul B. Repetto By: /s/ Barnet M. Feinblum
--------------------- -----------------------
Its: Secretary Its: President
------------------- ---------------------
/s/ Rudra Altman
------------------
Rudra Altman
4.
