<PAGE> 1
As Filed With the Securities and Exchange Commission on May 28, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON. D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BRIDGFORD FOODS CORPORATION
(Exact name of registrant as specified in its charter)
CALIFORNIA 95-1778176
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1308 NORTH PATT STREET, ANAHEIM, CALIFORNIA 92801
(Address of Principal Executive Offices) (Zip Code)
------------------------
1999 STOCK INCENTIVE PLAN
(Full Title of the Plan)
------------------------
Allan L. Bridgford, Chairman
Bridgford Foods Corporation
1308 North Patt Street
Anaheim, California 92801
(Name and address of agent for service)
(714) 526-5533
(Telephone number, including area code, of agent for service)
Copy to:
Michael E. Flynn, Esq.
Stradling Yocca Carlson & Rauth, a Professional Corporation
660 Newport Center Drive, Suite 1600, Newport Beach, California 92660
(949) 725-4000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount To Be Offering Aggregate Offering Amount of
To Be Registered Registered Price Per Share Price Registration Fee
===================================================================================================
<S> <C> <C> <C> <C>
Common Stock,
$1.00 par value 900,000 shares $10.344(1) $9,309,600(1) $2,588.07
===================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c), using the average of the high and low prices
for the Common Stock as reported on the system of the Nasdaq National
Market on May 24, 1999 which was $10.344 per share.
Page 1 of 6
Exhibit Index on Page 6
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended October 30, 1998, containing its audited financial statements for the
fiscal year ended October 30, 1998.
(b) All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act"),
since the end of the fiscal year covered by the Annual Report referred to in (a)
above.
(c) The description of the Registrant's Common Stock which is
contained in the Registrant's Registration Statement on Form 8-A filed under the
Exchange Act, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to the registration statement which indicates that all
of the shares of Common Stock offered have been sold or which deregisters all of
such shares then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of the filing of such
documents, except as to any portion of any future annual or quarterly report to
stockholders or document which is not deemed filed under such provisions. For
the purposes of this registration statement, any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded 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.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
(a) As permitted by Section 204(a)(10) of the California General
Corporation Law ("CGCL"), the Registrant's Restated Articles of Incorporation
provide that a director of the Registrant shall not be liable to the Registrant
or its shareholders for monetary damages to the fullest extent permissible under
California law. However, as provided by California law, such limitation of
liability will not act to limit the liability of a director for (i) acts or
omissions that involve intentional misconduct or a knowing and culpable
violation of law, (ii) acts or omissions that a director believes to be contrary
to the best interest of the Registrant or its shareholders or that involve the
absence of good faith on the part of the director, (iii) any transaction from
which a director derived an improper personal benefit, (iv) acts or omissions
that show a reckless disregard for the director's duty to the Registrant or its
shareholders in circumstances in which the director was aware, or should have
been aware, in the ordinary course of performing a director's duties, of a risk
of serious injury to the Registrant or its shareholders, (v) acts or omissions
that constitute an unexcused pattern of inattention that amounts to an
abdication of the director's duty to the Registrant or its shareholders, (vi)
per CGCL section 310, any improper transactions between a director and the
Registrant in which the director has a material financial interest or (vii) per
CGCL section 316, any unlawful distributions to the shareholders of the
Registrant or any unlawful loan of money or property to, or a guarantee of the
obligation of, any director or officer of the Registrant.
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<PAGE> 3
(b) In addition, pursuant to Sections 204(a)(11) and 317 of the CGCL,
officers and directors may be indemnified in terms sufficiently broad to include
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933,
as amended (the "Securities Act"). The Restated Articles of Incorporation of the
Registrant authorize the Registrant to provide indemnification of its officers,
directors and agents for breach of duty to the Registrant and its shareholders
through bylaw provisions or indemnification agreements, or both, in excess of
the indemnification otherwise permitted by California law, subject to certain
limitations. The Registrant has in place liability insurance for its officers
and directors.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this registration statement:
<TABLE>
<CAPTION>
Number Description
------ -----------
<S> <C>
4.1 1999 Stock Incentive Plan and Form of Stock Option Agreement.
5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional
Corporation, Counsel to the Registrant.
23.1 Consent of Stradling Yocca Carlson & Rauth, a Professional
Corporation (included in the Opinion filed as Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP, independent
accountants.
24.1 Power of Attorney (included on signature page to this
registration statement).
</TABLE>
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) 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.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
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;
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<PAGE> 4
Provided, however, that paragraphs (a)(l)(i) and (a)(l)(ii) of this section do
not apply if the registration statement is on Form S-3, Form S-8 or Form F-3 and
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
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) 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.
(3) 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.
(b) The undersigned 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 Section 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Anaheim, State of California, on the 27th day of May,
1999.
BRIDGFORD FOODS CORPORATION
By: /s/ Allan L. Bridgford
-------------------------------------
Allan L. Bridgford, Chairman
POWER OF ATTORNEY
We, the undersigned officers and directors of Bridgford Foods
Corporation do hereby constitute and appoint Allan L. Bridgford our true and
lawful attorney-in-fact and agent, 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 to this registration statement, and
to file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the premises,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Allan L. Bridgford Chairman May 27, 1999
- --------------------------------
Allan L. Bridgford
/s/ Robert E. Schulze President May 10, 1999
- --------------------------------
Robert E. Schulze
/s/ Hugh Wm. Bridgford Vice President May 10, 1999
- --------------------------------
Hugh Wm. Bridgford
/s/ Paul A. Gilbert Director May 10, 1999
- --------------------------------
Paul A. Gilbert
/s/ John W. McNevin Director May 10, 1999
- --------------------------------
John W. McNevin
/s/ Steven H. Price Director May 10, 1999
- --------------------------------
Steven H. Price
/s/ Norman V. Wagner II Director May 10, 1999
- --------------------------------
Norman V. Wagner II
/s/ Paul R. Zippwald Director May 27, 1999
- --------------------------------
Paul R. Zippwald
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential
Number Description Page Number
<S> <C> <C>
4.1 1999 Stock Incentive Plan and Form of Stock Option Agreement. 7
5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional 20
Corporation, Counsel to the Registrant
23.1 Consent of Stradling Yocca Carlson & Rauth, a Professional --
Corporation (included in the Opinion filed as Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP, independent accountants. 21
24.1 Power of Attorney (included on signature page to this --
registration statement)
</TABLE>
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<PAGE> 1
EXHIBIT 4.1
BRIDGFORD FOODS CORPORATION
1999 STOCK INCENTIVE PLAN
This 1999 STOCK INCENTIVE PLAN (the "Plan") is hereby established by
Bridgford Foods Corporation, a California corporation (the "Company"), and
adopted by its Board of Directors as of the 11th day of January, 1999 (the
"Effective Date").
ARTICLE 1.
PURPOSES OF THE PLAN
1.1 PURPOSES. The purposes of the Plan are (a) to enhance the
Company's ability to attract and retain the services of qualified employees and
officers upon whose judgment, initiative and efforts the successful conduct and
development of the Company's business largely depends, and (b) to provide
additional incentives to such persons to devote their utmost effort and skill to
the advancement and betterment of the Company, by providing them an opportunity
to participate in the ownership of the Company and thereby have an interest in
the success and increased value of the Company.
ARTICLE 2.
DEFINITIONS
For purposes of this Plan, the following terms shall have the meanings
indicated:
2.1 ADMINISTRATOR. "Administrator" means the Board or, if the Board
delegates responsibility for any matter to the Committee, the term Administrator
shall mean the Committee.
2.2 AFFILIATED COMPANY. "Affiliated Company" means any "parent
corporation" or "subsidiary corporation" of the Company, whether now existing or
hereafter created or acquired, as those terms are defined in Sections 424(e) and
424(f) of the Code, respectively.
2.3 BOARD. "Board" means the Board of Directors of the Company.
2.4 CHANGE IN CONTROL. "Change in Control" shall mean (i) the
acquisition, directly or indirectly, by any person or group (within the meaning
of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) of the
beneficial ownership of securities of the Company possessing more than fifty
percent (50%) of the total combined voting power of all outstanding securities
of the Company; (ii) a merger or consolidation in which the Company is not the
surviving entity, except for a transaction the principal purpose of which is to
change the state in which the Company is incorporated; (iii) the sale, transfer
or other disposition of all or substantially all of the assets of the Company;
(iv) a complete liquidation or dissolution of the Company; or (v) any reverse
merger in which the Company is the surviving entity but in which securities
possessing more than fifty percent (50%) of the total combined voting power of
the Company's outstanding securities are transferred to or acquired by a person
or persons different from the persons holding those securities immediately prior
to such merger.
<PAGE> 2
2.5 CODE. "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
2.6 COMMITTEE. "Committee" means a committee of two or more members
of the Board appointed to administer the Plan, as set forth in Section 6.1
hereof.
2.7 COMMON STOCK. "Common Stock" means the Common Stock, $1.00 par
value of the Company, subject to adjustment pursuant to Section 4.2 hereof.
2.8 DISABILITY. "Disability" means permanent and total disability as
defined in Section 22(e)(3) of the Code. The Administrator's determination of a
Disability or the absence thereof shall be conclusive and binding on all
interested parties.
2.9 EFFECTIVE DATE. "Effective Date" means the date on which the Plan
is adopted by the Board, as set forth on the first page hereof.
2.10 EXERCISE PRICE. "Exercise Price" means the purchase price per
share of Common Stock payable upon exercise of an Option.
2.11 FAIR MARKET VALUE. "Fair Market Value" on any given date means
the value of one share of Common Stock, determined as follows:
(a) If the Common Stock is then listed or admitted to trading
on a Nasdaq market system or a stock exchange which reports closing sale prices,
the Fair Market Value shall be the closing sale price on the date of valuation
on such Nasdaq market system or principal stock exchange on which the Common
Stock is then listed or admitted to trading, or, if no closing sale price is
quoted on such day, then the Fair Market Value shall be the closing sale price
of the Common Stock on such Nasdaq market system or such exchange on the next
preceding day for which a closing sale price is reported.
(b) If the Common Stock is not then listed or admitted to
trading on a Nasdaq market system or a stock exchange which reports closing sale
prices, the Fair Market Value shall be the average of the closing bid and asked
prices of the Common Stock in the over-the-counter market on the date of
valuation.
(c) If neither (a) nor (b) is applicable as of the date of
valuation, then the Fair Market Value shall be determined by the Administrator
in good faith using any reasonable method of evaluation, which determination
shall be conclusive and binding on all interested parties.
2.12 INCENTIVE OPTION. "Incentive Option" means any Option designated
and qualified as an "incentive stock option" as defined in Section 422 of the
Code.
2.13 INCENTIVE OPTION AGREEMENT. "Incentive Option Agreement" means an
Option Agreement with respect to an Incentive Option.
2.14 NASD DEALER. "NASD Dealer" means a broker-dealer that is a member
of the National Association of Securities Dealers, Inc.
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<PAGE> 3
2.15 OPTION. "Option" means any option to purchase Common Stock
granted pursuant to the Plan.
2.16 OPTION AGREEMENT. "Option Agreement" means the written agreement
entered into between the Company and the Optionee with respect to an Option
granted under the Plan.
2.17 OPTIONEE. "Optionee" means a Participant who holds an Option.
2.18 PARTICIPANT. "Participant" means an individual or entity who
holds an Option under the Plan.
2.19 10% SHAREHOLDER. "10% Shareholder" means a person who, as of a
relevant date, owns or is deemed to own (by reason of the attribution rules
applicable under Section 424(d) of the Code) stock possessing more than 10% of
the total combined voting power of all classes of stock of the Company or of an
Affiliated Company.
ARTICLE 3.
ELIGIBILITY
3.1 INCENTIVE OPTIONS. Officers and other key employees of the
Company or of an Affiliated Company (including members of the Board if they are
employees of the Company or of an Affiliated Company) are eligible to receive
Incentive Options under the Plan.
ARTICLE 4.
PLAN SHARES
4.1 SHARES SUBJECT TO THE PLAN. A total of Nine Hundred Thousand
(900,000) shares of Common Stock may be issued under the Plan, subject to
adjustment as to the number and kind of shares pursuant to Section 4.2 hereof.
For purposes of this limitation, in the event that all or any portion of any
Option granted or offered under the Plan can no longer under any circumstances
be exercised, the shares of Common Stock allocable to the unexercised portion of
such Option shall again be available for grant or issuance under the Plan.
4.2 CHANGES IN CAPITAL STRUCTURE. In the event that the outstanding
shares of Common Stock are hereafter increased or decreased or changed into or
exchanged for a different number or kind of shares or other securities of the
Company by reason of a recapitalization, stock split, combination of shares,
reclassification, stock dividend, or other change in the capital structure of
the Company, then appropriate adjustments shall be made by the Administrator to
the aggregate number and kind of shares subject to this Plan, and the number and
kind of shares and the price per share subject to outstanding Option Agreements
in order to preserve, as nearly as practical, but not to increase, the benefits
to Participants.
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<PAGE> 4
ARTICLE 5.
OPTIONS
5.1 OPTION AGREEMENT. Each Option granted pursuant to this Plan shall
be evidenced by an Option Agreement which shall specify the number of shares
subject thereto and the Exercise Price per share. As soon as is practical
following the grant of an Option, an Option Agreement shall be duly executed and
delivered by or on behalf of the Company to the Optionee to whom such Option was
granted. Each Option Agreement shall be in such form and contain such additional
terms and conditions, not inconsistent with the provisions of this Plan, as the
Administrator shall, from time to time, deem desirable. Each Option Agreement
may be different from each other Option Agreement.
5.2 EXERCISE PRICE. The Exercise Price per share of Common Stock
covered by each Option shall be determined by the Administrator, subject to the
following: (a) the Exercise Price of an Incentive Option shall not be less than
100% of Fair Market Value on the date the Incentive Option is granted, and (b)
if the person to whom an Incentive Option is granted is a 10% Shareholder on the
date of grant, the Exercise Price shall not be less than 110% of Fair Market
Value on the date the Option is granted.
5.3 PAYMENT OF EXERCISE PRICE. Payment of the Exercise Price shall be
made upon exercise of an Option and may be made, in the discretion of the
Administrator, subject to any legal restrictions, by: (a) cash; (b) check; (c)
the surrender of shares of Common Stock owned by the Optionee that have been
held by the Optionee for at least six (6) months, which surrendered shares shall
be valued at Fair Market Value as of the date of such exercise; (d) the
Optionee's promissory note in a form and on terms acceptable to the
Administrator; (e) the cancellation of indebtedness of the Company to the
Optionee; (f) the waiver of compensation due or accrued to the Optionee for
services rendered; (g) provided that a public market for the Common Stock
exists, a "same day sale" commitment from the Optionee and an NASD Dealer
whereby the Optionee irrevocably elects to exercise the Option and to sell a
portion of the shares so purchased to pay for the Exercise Price and whereby the
NASD Dealer irrevocably commits upon receipt of such shares to forward the
Exercise Price directly to the Company; (h) provided that a public market for
the Common Stock exists, a "margin" commitment from the Optionee and an NASD
Dealer whereby the Optionee irrevocably elects to exercise the Option and to
pledge the shares so purchased to the NASD Dealer in a margin account as
security for a loan from the NASD Dealer in the amount of the Exercise Price,
and whereby the NASD Dealer irrevocably commits upon receipt of such shares to
forward the Exercise Price directly to the Company; or (i) any combination of
the foregoing methods of payment or any other consideration or method of payment
as shall be permitted by applicable corporate law.
5.4 TERM AND TERMINATION OF OPTIONS. The term and provisions for
termination of each Option shall be as fixed by the Administrator, but no Option
may be exercisable more than ten (10) years after the date it is granted. An
Incentive Option granted to a person who is a 10% Shareholder on the date of
grant shall not be exercisable more than five (5) years after the date it is
granted.
5.5 VESTING AND EXERCISE OF OPTIONS. Each Option shall vest and
become exercisable in one or more installments at such time or times and subject
to such conditions, including without limitation the achievement of specified
performance goals or objectives, as shall be determined by the Administrator.
4
<PAGE> 5
5.6 ANNUAL LIMIT ON INCENTIVE OPTIONS. To the extent required for
"incentive stock option" treatment under Section 422 of the Code, the aggregate
Fair Market Value (determined as of the time of grant) of the Common Stock shall
not, with respect to which Incentive Options granted under this Plan and any
other plan of the Company or any Affiliated Company become exercisable for the
first time by an Optionee during any calendar year, exceed $100,000.
5.7 NONTRANSFERABILITY OF OPTIONS. No Option shall be assignable or
transferable except by will or the laws of descent and distribution, and during
the life of the Optionee shall be exercisable only by such Optionee; provided,
however, that, in the discretion of the Administrator, any Option may be
assigned or transferred in any manner which an "incentive stock option" is
permitted to be assigned or transferred under the Code.
5.8 RIGHTS AS SHAREHOLDER. An Optionee or permitted transferee of an
Option shall have no rights or privileges as a shareholder with respect to any
shares covered by an Option until such Option has been duly exercised and
certificates representing shares purchased upon such exercise have been issued
to such person.
ARTICLE 6.
ADMINISTRATION OF THE PLAN
6.1 ADMINISTRATOR. Authority to control and manage the operation and
administration of the Plan shall be vested in the Board, which may delegate such
responsibilities in whole or in part to a committee consisting of two (2) or
more members of the Board (the "Committee"). Members of the Committee may be
appointed from time to time by, and shall serve at the pleasure of, the Board.
As used herein, the term "Administrator" means the Board or, with respect to any
matter as to which responsibility has been delegated to the Committee, the term
Administrator shall mean the Committee.
6.2 POWERS OF THE ADMINISTRATOR. In addition to any other powers or
authority conferred upon the Administrator elsewhere in the Plan or by law, the
Administrator shall have full power and authority: (a) to determine the persons
to whom, and the time or times at which, Incentive Options shall be granted, the
number of shares to be represented by each Option and the consideration to be
received by the Company upon the exercise thereof; (b) to interpret the Plan;
(c) to create, amend or rescind rules and regulations relating to the Plan; (d)
to determine the terms, conditions and restrictions contained in, and the form
of, Option Agreements; (e) to determine the identity or capacity of any persons
who may be entitled to exercise a Participant's rights under any Option under
the Plan; (f) to correct any defect or supply any omission or reconcile any
inconsistency in the Plan or in any Option Agreement; (g) to accelerate the
vesting of any Option; (h) to extend the exercise date of any Option; (i) to
amend outstanding Option Agreements to provide for, among other things, any
change or modification which the Administrator could have provided for upon the
grant of an Option or in furtherance of the powers provided for herein; and (j)
to make all other determinations necessary or advisable for the administration
of the Plan, but only to the extent not contrary to the express provisions of
the Plan. Any action, decision, interpretation or determination made in good
faith by the Administrator in the exercise of its authority conferred upon it
under the Plan shall be final and binding on the Company and all Participants.
5
<PAGE> 6
6.3 LIMITATION ON LIABILITY. No employee of the Company or member of
the Board or Committee shall be subject to any liability with respect to duties
under the Plan unless the person acts fraudulently or in bad faith. To the
extent permitted by law, the Company shall indemnify each member of the Board or
Committee, and any employee of the Company with duties under the Plan, who was
or is a party, or is threatened to be made a party, to any threatened, pending
or completed proceeding, whether civil, criminal, administrative or
investigative, by reason of such person's conduct in the performance of duties
under the Plan.
ARTICLE 7.
CHANGE IN CONTROL
7.1 CHANGE IN CONTROL. In order to preserve a Participant's rights in
the event of a Change in Control of the Company, (i) the time period relating to
the exercise or realization of all outstanding Options shall automatically
accelerate immediately prior to the consummation of such Change in Control, and
(ii) with respect to Options, the Administrator in its discretion may, at any
time an Option is granted, or at any time thereafter, take one or more of the
following actions: (A) provide for the purchase or exchange of each Option for
an amount of cash or other property having a value equal to the difference, or
spread, between (x) the value of the cash or other property that the Participant
would have received pursuant to such Change in Control transaction in exchange
for the shares issuable upon exercise of the Option had the Option been
exercised immediately prior to such Change in Control transaction and (y) the
Exercise Price of such Option, (B) adjust the terms of the Options in a manner
determined by the Administrator to reflect the Change in Control, (C) cause the
Options to be assumed, or new rights substituted therefor, by another entity,
through the continuance of the Plan and the assumption of outstanding Options,
or the substitution for such Options of new options of comparable value covering
shares of a successor corporation, with appropriate adjustments as to the number
and kind of shares and Exercise Prices, in which event the Plan and such
Options, or the new options substituted therefor, shall continue in the manner
and under the terms so provided, or (D) make such other provision as the
Administrator may consider equitable. If the Administrator does not take any of
the forgoing actions, all Options shall terminate upon the consummation of the
Change in Control and the Administrator shall cause written notice of the
proposed transaction to be given to all Participants not less than fifteen (15)
days prior to the anticipated effective date of the proposed transaction.
ARTICLE 8.
AMENDMENT AND TERMINATION OF THE PLAN
8.1 AMENDMENTS. The Board may from time to time alter, amend, suspend
or terminate the Plan in such respects as the Board may deem advisable. No such
alteration, amendment, suspension or termination shall be made which shall
substantially affect or impair the rights of any Participant under an
outstanding Option Agreement without such Participant's consent. The Board may
alter or amend the Plan to comply with requirements under the Code relating to
Incentive Options or other types of options which give Optionees more favorable
tax treatment than that applicable to Options granted under this Plan as of the
date of its adoption. Upon any such alteration or amendment, any outstanding
Option granted hereunder may, if the Administrator so determines and if
permitted by applicable law, be subject to the more favorable tax treatment
afforded to an Optionee pursuant to such terms and conditions.
6
<PAGE> 7
8.2 PLAN TERMINATION. Unless the Plan shall theretofore have been
terminated, the Plan shall terminate on the tenth (10th) anniversary of the
Effective Date and no Options may be granted under the Plan thereafter, but
Option Agreements then outstanding shall continue in effect in accordance with
their respective terms.
ARTICLE 9.
TAX WITHHOLDING
9.1 WITHHOLDING. The Company shall have the power to withhold, or
require a Participant to remit to the Company, an amount sufficient to satisfy
any applicable Federal, state, and local tax withholding requirements with
respect to any Options exercised under the Plan. To the extent permissible under
applicable tax, securities and other laws, the Administrator may, in its sole
discretion and upon such terms and conditions as it may deem appropriate, permit
a Participant to satisfy his or her obligation to pay any such tax, in whole or
in part, up to an amount determined on the basis of the highest marginal tax
rate applicable to such Participant, by (a) directing the Company to apply
shares of Common Stock to which the Participant is entitled as a result of the
exercise of an Option or (b) delivering to the Company shares of Common Stock
owned by the Participant. The shares of Common Stock so applied or delivered in
satisfaction of the Participant's tax withholding obligation shall be valued at
their Fair Market Value as of the date of measurement of the amount of income
subject to withholding.
ARTICLE 10.
MISCELLANEOUS
10.1 BENEFITS NOT ALIENABLE. Other than as provided above, benefits
under the Plan may not be assigned or alienated, whether voluntarily or
involuntarily. Any unauthorized attempt at assignment, transfer, pledge or other
disposition shall be without effect.
10.2 NO ENLARGEMENT OF EMPLOYEE RIGHTS. This Plan is strictly a
voluntary undertaking on the part of the Company and shall not be deemed to
constitute a contract between the Company and any Participant to be
consideration for, or an inducement to, or a condition of, the employment of any
Participant. Nothing contained in the Plan shall be deemed to give the right to
any Participant to be retained as an employee of the Company or any Affiliated
Company or to interfere with the right of the Company or any Affiliated Company
to discharge any Participant at any time.
10.3 APPLICATION OF FUNDS. The proceeds received by the Company from
the sale of Common Stock pursuant to Option Agreements, except as otherwise
provided herein, will be used for general corporate purposes.
7
<PAGE> 8
BRIDGFORD FOODS CORPORATION
STOCK OPTION AGREEMENT
This Stock Option Agreement (the "Agreement") is entered into as of
______________, _______, by and between Bridgford Foods Corporation, a
California corporation (the "Company") and __________________________________
(the "Optionee") pursuant to the Company's 1999 Stock Incentive Plan (the
"Plan").
1. GRANT OF OPTION. The Company hereby grants to Optionee an option
(the "Option") to purchase all or any portion of a total of ___________________
(__________) shares (the "Shares") of the Common Stock of the Company at a
purchase price of ________________________________ ($_______) per share (the
"Exercise Price"), subject to the terms and conditions set forth herein and the
provisions of the Plan. This Option is intended to qualify as an "incentive
stock option" as defined in Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code").
2. VESTING OF OPTION. The right to exercise this Option shall vest
in installments, and this Option shall be exercisable from time to time in whole
or in part as to any vested installment, as follows:
<TABLE>
<CAPTION>
This Option shall be
On or After: Exercisable as to:
------------ ------------------
<S> <C>
(i) _____________________, _____ : ____________ shares
(ii) _____________________, _____ : an additional ____________ shares
(iii) _____________________, _____ : an additional ____________ shares
(iv) _____________________, _____ : an additional ____________ shares
</TABLE>
No additional shares shall vest after the date of termination of Optionee's
"Continuous Service" (as defined in Section 3 below), but this Option shall
continue to be exercisable in accordance with Section 3 hereof with respect to
that number of shares that have vested as of the date of termination of
Optionee's Continuous Service.
3. TERM OF OPTION. Optionee's right to exercise this Option shall
terminate upon the first to occur of the following:
(a) the expiration of ____ (___) years from the date of this
Agreement;
(b) the expiration of three (3) months from the date of
termination of Optionee's Continuous Service if such termination occurs for any
reason other than permanent disability, death or voluntary resignation;
provided, however, that if Optionee dies during such three-month period the
provisions of Section 3(e) below shall apply;
<PAGE> 9
(c) the expiration of one (1) month from the date of
termination of Optionee's Continuous Service if such termination occurs due to
voluntary resignation; provided, however, that if Optionee dies during such
one-month period the provisions of Section 3(e) below shall apply;
(d) the expiration of one (1) year from the date of
termination of Optionee's Continuous Service if such termination is due to
permanent disability of the Optionee (as defined in Section 22(e)(3) of the
Code);
(e) the expiration of one (1) year from the date of
termination of Optionee's Continuous Service if such termination is due to
Optionee's death or if death occurs during either the three-month or one-month
period following termination of Optionee's Continuous Service pursuant to
Section 3(b) or 3(c) above, as the case may be; or
(f) upon the consummation of a "Change in Control" (as defined
in Section 2.4 of the Plan), unless otherwise provided pursuant to Section 8
below.
As used herein, the term "Continuous Service" means employment by either
the Company or any parent or subsidiary corporation of the Company, or by a
corporation or a parent or subsidiary of a corporation issuing or assuming a
stock option in a transaction to which Section 424(a) of the Code applies, which
is uninterrupted except for vacations, illness (except for permanent disability,
as defined in Section 22(e)(3) of the Code), or leaves of absence which are
approved in writing by the Company or any of such other employer corporations,
if applicable.
4. EXERCISE OF OPTION. On or after the vesting of any portion of
this Option in accordance with Sections 2 or 8 hereof, and until termination of
the right to exercise this Option in accordance with Section 3 above, the
portion of this Option which has vested may be exercised in whole or in part by
the Optionee (or, after his or her death, by the person designated in Section 5
below) upon delivery of the following to the Company at its principal executive
offices:
(a) a written notice of exercise which identifies this
Agreement and states the number of Shares then being purchased (but no
fractional Shares may be purchased);
(b) a check or cash in the amount of the Exercise Price (or
payment of the Exercise Price in such other form of lawful consideration as the
Administrator may approve from time to time under the provisions of Section 5.3
of the Plan);
(c) a check or cash in the amount reasonably requested by the
Company to satisfy the Company's withholding obligations under federal, state or
other applicable tax laws with respect to the taxable income, if any, recognized
by the Optionee in connection with the exercise of this Option (unless the
Company and Optionee shall have made other arrangements for deductions or
withholding from Optionee's wages, bonus or other compensation payable to
Optionee, or by the withholding of Shares issuable upon exercise of this Option
or the delivery of Shares owned by the Optionee in accordance with Section 9.1
of the Plan, provided such arrangements satisfy the requirements of applicable
tax laws); and
(d) a letter, if requested by the Company, in such form and
substance as the Company may require, setting forth the investment intent of the
Optionee, or person designated in Section 5 below, as the case may be.
-2-
<PAGE> 10
5. DEATH OF OPTIONEE; NO ASSIGNMENT. The rights of the Optionee
under this Agreement may not be assigned or transferred except by will or by the
laws of descent and distribution, and may be exercised during the lifetime of
the Optionee only by such Optionee. Any attempt to sell, pledge, assign,
hypothecate, transfer or dispose of this Option in contravention of this
Agreement or the Plan shall be void and shall have no effect. If the Optionee's
Continuous Service terminates as a result of his or her death, and provided
Optionee's rights hereunder shall have vested pursuant to Section 2 hereof,
Optionee's legal representative, his or her legatee, or the person who acquired
the right to exercise this Option by reason of the death of the Optionee
(individually, a "Successor") shall succeed to the Optionee's rights and
obligations under this Agreement. After the death of the Optionee, only a
Successor may exercise this Option.
6. REPRESENTATION AND WARRANTY OF OPTIONEE. Optionee acknowledges
receipt of a copy of the Plan and understands that all rights and obligations
connected with this Option are set forth in this Agreement and in the Plan.
7. ADJUSTMENTS UPON CHANGES IN CAPITAL STRUCTURE. In the event that
the outstanding shares of Common Stock of the Company are hereafter increased or
decreased or changed into or exchanged for a different number or kind of shares
or other securities of the Company by reason of a recapitalization, stock split,
combination of shares, reclassification, stock dividend or other change in the
capital structure of the Company, then appropriate adjustment shall be made by
the Administrator to the number of Shares subject to the unexercised portion of
this Option and to the Exercise Price per share, in order to preserve, as nearly
as practical, but not to increase, the benefits of the Optionee under this
Option, in accordance with the provisions of Section 4.2 of the Plan.
8. CHANGE IN CONTROL. In the event of a Change in Control (as
defined in Section 2.4 of the Plan) of the Company, (i) the vesting of this
Option pursuant to Section 2 above shall automatically accelerate immediately
prior to the consummation of such Change in Control, and (ii) the Administrator
in its discretion may take one or more of the following actions: (A) provide for
the purchase or exchange of this Option for an amount of cash or other property
having a value equal to the difference, or spread, between (x) the value of the
cash or other property that the Optionee would have received pursuant to such
Change in Control transaction in exchange for the shares issuable upon exercise
of this Option had this Option been exercised immediately prior to such Change
in Control transaction and (y) the Exercise Price, (B) adjust the terms of this
Option in a manner determined by the Administrator to reflect the Change in
Control, (C) cause this Option to be assumed, or new rights substituted
therefor, by another entity, through the continuance of the Plan and the
assumption of this Option, or the substitution for this Option of a new option
of comparable value covering shares of a successor corporation, with appropriate
adjustments as to the number and kind of shares and Exercise Price, in which
event the Plan and this Option, or the new option substituted therefor, shall
continue in the manner and under the terms so provided, or (D) make such other
provision as the Administrator may consider equitable. If the Administrator does
not take any of the forgoing actions, this Option shall terminate upon the
consummation of the Change in Control and the Administrator shall cause written
notice of the proposed transaction to be given to the Optionee not less than
fifteen (15) days prior to the anticipated effective date of the proposed
transaction.
9. NO EMPLOYMENT CONTRACT CREATED. Neither the granting of this
Option nor the exercise hereof shall be construed as granting to the Optionee
any right with respect to continuance of employment by the Company or any of its
subsidiaries. The right of the Company or any of its
-3-
<PAGE> 11
subsidiaries to terminate at will the Optionee's employment at any time
(whether by dismissal, discharge or otherwise), with or without cause, is
specifically reserved.
10. RIGHTS AS SHAREHOLDER. The Optionee (or transferee of this option
by will or by the laws of descent and distribution) shall have no rights as a
shareholder with respect to any Shares covered by this Option until the date of
the issuance of a stock certificate or certificates to him or her for such
Shares, notwithstanding the exercise of this Option.
11. "MARKET STAND-OFF" AGREEMENT. Optionee agrees that, if requested
by the Company or the managing underwriter of any proposed public offering of
the Company's securities, Optionee will not sell or otherwise transfer or
dispose of any Shares held by Optionee without the prior written consent of the
Company or such underwriter, as the case may be, during such period of time, not
to exceed 180 days following the effective date of the registration statement
filed by the Company with respect to such offering, as the Company or the
underwriter may specify.
12. INTERPRETATION. This Option is granted pursuant to the terms of
the Plan, and shall in all respects be interpreted in accordance therewith. The
Administrator shall interpret and construe this Option and the Plan, and any
action, decision, interpretation or determination made in good faith by the
Administrator shall be final and binding on the Company and the Optionee. As
used in this Agreement, the term "Administrator" shall refer to the committee of
the Board of Directors of the Company appointed to administer the Plan, and if
no such committee has been appointed, the term Administrator shall mean the
Board of Directors.
13. NOTICES. Any notice, demand or request required or permitted to
be given under this Agreement shall be in writing and shall be deemed given when
delivered personally or three (3) days after being deposited in the United
States mail, as certified or registered mail, with postage prepaid, and
addressed, if to the Company, at its principal place of business, Attention:
Chief Financial Officer, and if to the Optionee, at his or her most recent
address as shown in the employment or stock records of the Company.
14. ANNUAL AND OTHER PERIODIC REPORTS. During the term of this
Agreement, the Company will furnish to the Optionee copies of all annual and
other periodic financial and informational reports that the Company distributes
generally to its shareholders.
15. GOVERNING LAW. The validity, construction, interpretation, and
effect of this Option shall be governed by and determined in accordance with the
laws of the State of California.
16. SEVERABILITY. Should any provision or portion of this Agreement
be held to be unenforceable or invalid for any reason, the remaining provisions
and portions of this Agreement shall be unaffected by such holding.
17. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall be deemed one instrument.
-4-
<PAGE> 12
18. CALIFORNIA CORPORATE SECURITIES LAW. The sale of the shares that
are the subject of this Agreement has not been qualified with the Commissioner
of Corporations of the State of California and the issuance of such shares or
the payment or receipt of any part of the consideration therefor prior to such
qualification is unlawful, unless the sale of such shares is exempt from such
qualification by Section 25100, 25102 or 25105 of the California Corporate
Securities Law of 1968, as amended. The rights of all parties to this Agreement
are expressly conditioned upon such qualification being obtained, unless the
sale is so exempt.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
BRIDGFORD FOODS CORPORATION "OPTIONEE"
By: ____________________________ _____________________________________
(Signature)
Name: __________________________
Title: _________________________
_____________________________________
(Type or print name)
-5-
<PAGE> 13
CONSENT OF SPOUSE
I acknowledge that I have read the foregoing Stock Option Agreement (the
"Agreement") and that I know its contents. I am aware that by its provisions, my
spouse agrees, among other things, to the imposition of certain restrictions on
the transfer of the shares of BRIDGFORD FOODS CORPORATION, a California
corporation, which my spouse acquires upon exercise of such option (the
"Shares") including my community interest therein (if any), which restrictions
may survive my spouse's death. I hereby consent to such restrictions.
I further agree that in the event of a dissolution of the marriage
between me and my spouse, in connection with which I secure or am awarded the
Shares or any interest therein through property settlement agreement or
otherwise, I shall receive and hold said Shares subject to all the provisions
and restrictions contained in the foregoing Agreement.
I also acknowledge that I have been advised to obtain independent
counsel to represent my interests with respect to the Agreement but that I have
declined to do so and I hereby expressly waive my right to such independent
counsel.
Date: _____________, _______ ________________________________________
(Signature of Spouse of Optionee)
________________________________________
(Type or print)
<PAGE> 1
EXHIBIT 5.1
STRADLING YOCCA CARLSON & RAUTH LETTERHEAD
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
660 NEWPORT CENTER DRIVE, SUITE 1600 SAN FRANCISCO OFFICE
NEWPORT BEACH, CALIFORNIA 92660-6441 44 MONTGOMERY STREET, SUITE 2950
TELEPHONE (949) 725-4000 SAN FRANCISCO, CALIFORNIA 94104
FACSIMILE (949) 725-4100 TELEPHONE (415) 283-2240
FACSIMILE (415) 283-2255
May 28, 1999
Bridgford Foods Corporation
1308 North Patt Street
Anaheim, California 92801
RE: Registration Statement on Form S-8
Gentlemen:
At your request, we have examined the form of Registration
Statement on Form S-8 (the "Registration Statement") being filed by Bridgford
Foods Corporation, a California corporation (the "Company"), with the Securities
and Exchange Commission in connection with the registration under the Securities
Act of 1933, as amended, of an aggregate of 900,000 shares of the Company's
common stock, $1.00 par value ("Common Stock"), issuable under the Company's
1999 Stock Incentive Plan (the "Plan").
We have examined the proceedings heretofore taken and are
familiar with the additional proceedings proposed to be taken by the Company in
connection with the authorization, issuance and sale of the securities referred
to above.
Based on the foregoing, it is our opinion that the 900,000 shares
of Common Stock to be issued under the Plan against full payment in accordance
with the respective terms and conditions of the Plan will be legally and validly
issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Stradling Yocca Carlson & Rauth
----------------------------------------
STRADLING YOCCA CARLSON & RAUTH
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated December 18, 1998, which appears on
page 11 of the 1998 Annual Report to Shareholders of Bridgford Foods
Corporation, which is incorporated by reference in Bridgford Foods
Corporation's Annual Report on Form 10-K for the year ended October 31, 1998.
/s/ PRICEWATERHOUSECOOPERS LLP
- -----------------------------------
Costa Mesa, California
May 26, 1999
