<PAGE> 1
As filed with the Securities and Exchange Commission on February 17, 1998
Registration No. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
IL FORNAIO (AMERICA) CORPORATION
(Exact name of registrant as specified in its charter)
-------------------
DELAWARE 94-2766571
(State of incorporation) (I.R.S. Employer Identification No.)
-------------------
770 TAMALPAIS DRIVE, #400
CORTE MADERA, CA 94925
(415) 945-0500
(Address and telephone number of Principal Executive Offices)
1997 EQUITY INCENTIVE PLAN
1997 EMPLOYEE STOCK PURCHASE PLAN
1997 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
1992 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
1991 STOCK OPTION PLAN
1988 STOCK OPTION PLAN
(Full title of the plan)
LAURENCE B. MINDEL
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
IL FORNAIO (AMERICA) CORPORATION
770 TAMALPAIS DRIVE, #400
CORTE MADERA, CA 94925
(415) 945-0500
(Name, address, including zip codes and telephone number,
including are code of agent for service)
--------------------
Copies to:
KENNETH L. GUERNSEY, ESQ.
CYDNEY S. POSNER, ESQ.
COOLEY GODWARD LLP
ONE MARITIME PLAZA, 20TH FLOOR
SAN FRANCISCO, CA 94111-3580
--------------------
<PAGE> 2
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
======================================================================================================================
Title of Amount Proposed maximum Proposed maximum
securities to be to be offering price aggregate Amount of registration
registered registered per share(1) offering price(1) fee
- ----------------------------------------------------------------------------------------------------------------------
Common Stock
<S> <C> <C> <C> <C>
(par value $.001) 1,797,594 shares $3.00 to 14.875 $16,929,311 $5,130.00
======================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee. The offering 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 Il Fornaio (America) Corporation
("Company" or "Registrant") 1997 Equity Incentive Plan, 1997 Non-Employee
Directors' Stock Option Plan, 1992 Non-Employee Directors' Stock Option
Plan, 1991 Stock Option Plan and 1988 Stock Option Plan, (pursuant to Rule
457(h) under the Securities Act of 1933, as amended (the "Act")) (b) the
average of the high and low prices of the Company's Common Stock as
reported on the Nasdaq National Market on February 9, 1998 for shares
available for grant pursuant to the 1997 Equity Incentive Plan, 1997
Non-Employee Directors' Stock Option Plan and 1997 Employee Stock Purchase
Plan (pursuant to Rule 457(c) under the Act). The following chart shows the
calculation of the registration fee:
<TABLE>
<CAPTION>
=========================================================================================================
OFFERING PRICE AGGREGATE
TYPE OF SHARES NUMBER OF SHARES PER SHARE OFFERING PRICE
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Shares issuable pursuant to outstanding
options under the 1997 Equity Incentive Plan 841,420 $ 4.84 (1)(a) $ 4,070,830
- ---------------------------------------------------------------------------------------------------------
Shares reserved for future grant pursuant to
the 1997 Equity Incentive Plan 453,925 $14.875(1)(b) $ 6,752,134
- ---------------------------------------------------------------------------------------------------------
Shares issuable pursuant to outstanding
options under the 1997 Non-Employee
Directors' Stock Option Plan 27,000 $ 6.00 (1)(a) $ 162,000
- ---------------------------------------------------------------------------------------------------------
Shares reserved for future grant pursuant to
the 1997 Non-Employee Directors' Stock
Option Plan 73,000 $14.875(1)(b) $ 1,085,875
- ---------------------------------------------------------------------------------------------------------
Shares reserved for future grant pursuant to
the 1997 Employee Stock Purchase Plan 300,000 $14.875(1)(b) $ 4,462,500
- ---------------------------------------------------------------------------------------------------------
Shares issuable pursuant to outstanding
options under the 1992 Non-Employee
Directors' Stock Option Plan 50,500 $ 3.56 (1)(a) $ 179,780
- ---------------------------------------------------------------------------------------------------------
Shares issuable pursuant to outstanding
options under the 1991 Stock Option Plan 49,149 $ 4.24 (1)(a) $ 208,392
- ---------------------------------------------------------------------------------------------------------
Shares issuable pursuant to outstanding
options under the 1988 Stock Option Plan 2,600 $ 3.00 (1)(a) $ 7,800
- ---------------------------------------------------------------------------------------------------------
Proposed Maximum Aggregate Offering Price $16,929,311
- ---------------------------------------------------------------------------------------------------------
x .000303
- ---------------------------------------------------------------------------------------------------------
Registration Fee $ 5,130
=========================================================================================================
</TABLE>
- --------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
Exhibit Index at Pages: 3 & 7
ii.
<PAGE> 3
PART II
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Il Fornaio (America) Corporation (the
"Company") with the Securities and Exchange Commission are incorporated by
reference into this Registration Statement:
1. The Company's latest annual report on Form 10-K filed pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or either (1) the Company's latest prospectus filed pursuant to
Rule 424(b) under the Securities Act of 1933, as amended (the "Securities Act"),
that contains audited financial statements for the Company's latest fiscal year
for which such statements have been filed, or (2) the Company's effective
registration statement on Form 10, Form 10-SB or Form 20-F filed under the
Exchange Act containing audited financial statements for the Company's latest
fiscal year.
2. All other reports filed pursuant to Sections 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual reports, the
prospectus or the registration statement referred to in (a) above.
3. The description of the Company's Common Stock which is contained in a
registration statement filed under the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by Section 145 of the Delaware General Corporation Law, the
By-laws of the Company provide that (i) the Company is required to indemnify its
directors and executive officers to the fullest extent not prohibited by the
Delaware General Corporation Law, (ii) the Company may, in its discretion,
indemnify other officers, employees and agents as set forth in the Delaware
General Corporation Law, (iii) the Company is required to advance all expenses
incurred by its directors and executive officers in connection with certain
legal proceedings (subject to certain exceptions), (iv) the rights conferred in
the By-laws are not exclusive, (v) the Company is authorized to enter into
indemnification agreements with its directors, officers, employees and agents
and (vi) the Company may not retroactively amend the By-laws provisions relating
to indemnity.
The Company has entered into agreements with its directors and executive
officers that require the Company to indemnify such persons against expenses,
judgments, fines, settlements and other amounts that such person becomes legally
obligated to pay (including expenses of a derivative action) in connection with
any proceeding, whether actual or threatened, to which any such person may be
made a party by reason of the fact that such person is or was a director of
officer of the Company or any of its affiliated enterprises, provided such
person acted in good faith and in a manner such person reasonably believed to be
in or not opposed to the best interests of the Company. The indemnification
agreements also set forth certain procedures that will apply in the event of a
claim for indemnification thereunder.
2.
<PAGE> 4
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4.1 Amended and Restated Certificate of Incorporation of Il Fornaio
(America) Corporation
4.2 By-laws, as amended, of Il Fornaio (America) Corporation(1)
4.3 Specimen Common Share Certificate.(3)
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit
5.1.
24.1 Power of Attorney. Reference is made to page 5 of this
Registration Statement.
99.1 Form of Registrant's 1997 Equity Incentive Plan and form of
related agreement used thereunder.(4)
99.2 Form of Registrant's 1997 Employee Stock Purchase Plan and form
of related offering thereunder.(3)
99.3 Form of Registrant's 1997 Non-Employee Directors' Stock Option
Plan and form of related agreement used thereunder.(4)
99.4 Form of Registrant's 1992 Non-Employee Directors' Stock Option
Plan and form of related agreement used thereunder.
99.5 Form of Registrant's 1991 Stock Option Plan and form of related
agreement used thereunder.
99.6 Form of Registrant's 1988 Stock Option Plan and form of related
agreement used thereunder.
</TABLE>
- ---------------
(1) Filed as an exhibit to the Registrant's Quarterly Report on Form 10-Q on
November 10, 1997.
(2) Filed as an exhibit to the Form S-1 Registration Statement (Registration
No. 333-23605) on March 19, 1997, and incorporated herein by reference.
(3) Filed as an exhibit to Amendment No. 1 to the Form S-1 Registration
Statement (Registration No. 333-23605) on July 1, 1997, and incorporated
herein by reference.
(4) Filed as an exhibit to Amendment No. 2 to the Form S-1 Registration
Statement (Registration No. 333-23605) on August 22, 1997, and incorporated
herein by reference.
3.
<PAGE> 5
ITEM 9. UNDERTAKINGS
1. The undersigned 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. 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) (Sections 230.424(b) of this
chapter) 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;
Provided, however, that paragraphs (1)(a)(i) and (1)(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
Commission by the registrant pursuant to section 13 or section 15(d) of the
Exchange Act that are incorporated by reference herein.
(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 herein, 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 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 herein, 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 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.
4.
<PAGE> 6
SIGNATURES
The Registrant. 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 Corte Madera, State of California, on January
26, 1998.
Il Fornaio (America) Corporation
By /s/ Laurence B. Mindel
-------------------------------------
Laurence B. Mindel
Chairman of the Board and Chief
Executive Officer (Principal
Executive Officer)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Laurence B. Mindel and Paul J. Kelley and
each or any one of them, his 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 (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, 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 of 1933, 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/ Laurence B. Mindel
- ------------------------------ Chairman of the Board and Chief January 26, 1998
Laurence B. Mindel Executive Officer
(Principal Executive Officer)
/s/ Paul J. Kelley
- ------------------------------ Vice President, Finance, Chief Financial January 26, 1998
Paul J. Kelley Officer and Secretary (Principal Financial
and Accounting Officer)
</TABLE>
5.
<PAGE> 7
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Michael J. Hislop
- ------------------------------ President, Chief Operating Officer and January 26, 1998
Michael J. Hislop Director
/s/ Michael J. Beatrice
- ------------------------------ Vice President, Operations January 27, 1998
Michael J. Beatrice
/s/ Dean A. Cortopassi
- ------------------------------ Director January 30, 1998
Dean A. Cortopassi
/s/ W. Scott Hedrick
- ------------------------------ Director January 30, 1998
W. Scott Hedrick
/s/ F. Warren Hellman
- ------------------------------ Director January 26, 1998
F. Warren Hellman
/s/ W. Howard Lester
- ------------------------------ Director January 26, 1998
W. Howard Lester
/s/ Pierre W. Mornell
- ------------------------------ Director January 23, 1998
Pierre W. Mornell
/s/ T. Gary Rogers
- ------------------------------ Director January 26, 1998
T. Gary Rogers
</TABLE>
6.
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4.1 Amended and Restated Certificate of Incorporation of Il Fornaio
(America) Corporation
4.2 By-laws, as amended, of Il Fornaio (America) Corporation(1)
4.3 Specimen Common Share Certificate.(3)
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit
5.1.
24.1 Power of Attorney. Reference is made to page 5 of this
Registration Statement.
99.1 Form of Registrant's 1997 Equity Incentive Plan and form of
related agreement used thereunder.(4)
99.2 Form of Registrant's 1997 Employee Stock Purchase Plan and form
of related offering thereunder.(3)
99.3 Form of Registrant's 1997 Non-Employee Directors' Stock Option
Plan and form of related agreement used thereunder.(4)
99.4 Form of Registrant's 1992 Non-Employee Directors' Stock Option
Plan and form of related agreement used thereunder.
99.5 Form of Registrant's 1991 Stock Option Plan and form of related
agreement used thereunder.
99.6 Form of Registrant's 1988 Stock Option Plan and form of related
agreement used thereunder.
</TABLE>
- ---------------
(1) Filed as an exhibit to the Registrant's Quarterly Report on Form 10-Q on
November 10, 1997.
(2) Filed as an exhibit to the Form S-1 Registration Statement (Registration
No. 330-23605) on March 19, 1997, and incorporated herein by reference.
(3) Filed as an exhibit to Amendment No. 1 to the Form S-1 Registration
Statement (Registration No. 333-23605) on July 1, 1997, and incorporated
herein by reference.
(4) Filed as an exhibit to Amendment No. 2 to the Form S-1 Registration
Statement (Registration No. 333-23605) on August 22, 1997, and incorporated
herein by reference.
7.
<PAGE> 1
EXHIBIT 4.1
State of Delaware
Secretary of State
Divison of Corporations
Filed 09:00 AM 09/30/1997
971329594 - 2730169
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
IL FORNAIO (AMERICA) CORPORATION, a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
hereby certifies as follows:
1. The name of the corporation is Il Fornaio (America) Corporation.
2. The corporation's original Certificate of Incorporation was filed
with the Secretary of State on March 18, 1997 under the name Il Fornaio
(America) Delaware Corporation.
3. The Amended and Restated Certificate of Incorporation of this
corporation, in the form attached hereto as Exhibit A, has been duly adopted in
accordance with the provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware by the Board of Directors and by the
stockholders of the corporation.
4. The Amended and Restated Certificate of Incorporation so adopted
reads in full as set forth in Exhibit A attached hereto and hereby incorporated
by reference.
IN WITNESS WHEREOF, Il Fornaio (America) Corporation has caused this
Amended and Restated Certificate of Incorporation to be signed by its Chairman
of the Board and Chief Executive Officer and attested to by its Secretary this
30th day of September, 1997.
/s/ Laurence B. Mindel
--------------------------------------
LAURENCE B. MINDEL
Chairman of the Board and
Chief Executive Officer
ATTEST:
/s/ Paul J. Kelley
- ----------------------------------
PAUL J. KELLEY
Secretary
<PAGE> 2
EXHIBIT A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
IL FORNAIO (AMERICA) CORPORATION
I.
The name of this corporation is Il Fornaio (America) Corporation.
II.
The address of the registered office of the corporation in the State of
Delaware is 15 East North Street, City of Dover, County of Kent, and the name of
the registered agent of the corporation in the State of Delaware at such address
is Incorporating Services, Ltd.
III.
The purpose of this corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of the State of Delaware.
IV.
A. This corporation is authorized to issue two classes of stock to be
designated, respectively, "Common Stock" and "Preferred Stock." The total number
of shares which the corporation is authorized to issue is twenty-five million
(25,000,000) shares. Twenty million (20,000,000) shares shall be Common Stock,
each having a par value of one-tenth of one cent ($.001). Five million
(5,000,000) shares shall be Preferred Stock, each having a par value of
one-tenth of one cent ($.001).
The Preferred Stock may be issued from time to time in one or more
series. The Board of Directors is hereby authorized, by filing a certificate (a
"Preferred Stock Designation") pursuant to the Delaware General Corporation Law,
to fix or alter from time to time the designation, powers, preferences and
rights of the shares of each such series and the qualifications, limitations or
restrictions of any wholly unissued series of Preferred Stock, and to establish
from time to time the number of shares constituting any such series or any of
them; and to increase or decrease the number of shares of any series subsequent
to the issuance of shares of that series, but not below the number of shares of
such series then outstanding. In case the number of shares of any series shall
be decreased in accordance with the foregoing
1.
<PAGE> 3
sentence, the shares constituting such decrease shall resume the status that
they had prior to the adoption of the resolution originally fixing the number of
shares of such series.
V.
For the management of the business and for the conduct of the affairs of
the Corporation, and in further definition, limitation and regulation of the
powers of the Corporation, of its directors and of its stockholders or any class
thereof, as the case may be, it is further provided that:
A.
1. The management of the business and the conduct of the affairs
of the Corporation shall be vested in its Board of Directors. The number of
directors which shall constitute the whole Board of Directors shall be fixed
exclusively by one or more resolutions adopted by the Board of Directors.
2. Subject to the rights of the holders of any series of
Preferred Stock to elect additional directors under specified circumstances,
following the closing of the initial public offering pursuant to an effective
registration statement under the Securities Act of 1933, as amended (the "1933
Act"), covering the offer and sale of Common Stock to the public (the "Initial
Public Offering"), the directors shall be divided into three classes designated
as Class I, Class II and Class III, respectively. Directors shall be assigned to
each class in accordance with a resolution or resolutions adopted by the Board
of Directors. At the first annual meeting of stockholders following the closing
of the Initial Public Offering, the term of office of the Class I directors
shall expire and Class I directors shall be elected for a full term of three
years. At the second annual meeting of stockholders following the closing of the
Initial Public Offering, the term of office of the Class II directors shall
expire and Class II directors shall be elected for a full term of three years.
At the third annual meeting of stockholders following the closing of the Initial
Public Offering, the term of office of the Class III directors shall expire and
Class III directors shall be entered for a full-term of three years. At each
succeeding annual meeting of stockholders, directors shall be elected for a full
term of three years to succeed the directors of the class whose terms expire at
such annual meeting.
Notwithstanding the foregoing provisions of this Article, each
director shall serve until his successor is duly elected and qualified or until
his death, resignation or removal. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
3. Subject to the rights of the holders of any series of
Preferred Stock, the Board of Directors or any individual director may be
removed from office at any time (i) with cause by the affirmative vote of the
holders of a majority of the voting power of all the then outstanding shares of
voting stock of the Corporation, entitled to vote at an election of directors
(the "Voting Stock") or (ii) without cause by the affirmative vote of the
holders of at least sixty-
2.
<PAGE> 4
six and two-thirds percent (66-2/3%) of the voting power of the then outstanding
shares of Voting Stock.
4. Subject to the rights of the holders of any series of
Preferred Stock, any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other causes and any newly created
directorships resulting from any increase in the number of directors, shall,
unless the Board of Directors determines by resolution that any such vacancies
or newly created directorships shall be filled by the stockholders, except as
otherwise provided by law, be filled only by the affirmative vote of a majority
of the directors then in office, even though less than a quorum of the Board of
Directors, and not by the stockholders. Any director elected in accordance with
the preceding sentence shall hold office for the remainder of the full term of
the director for which the vacancy was created or occurred and until such
director's successor shall have been elected and qualified.
B.
1. Subject to paragraph (h) of Section 43 of the Bylaws, the
Bylaws may be altered or amended or new Bylaws adopted by the affirmative vote
of at least sixty-six and two-thirds percent (66-2/3%) of the voting power of
all of the then-outstanding shares of voting stock of the Corporation entitled
to vote at an election of directors (the "Voting Stock"). The Board of Directors
shall also have the power to adopt, amend, or repeal Bylaws.
2. The directors of the Corporation need not be elected by
written ballot unless the Bylaws so provide.
3. No action shall be taken by the stockholders of the
Corporation except at an annual or special meeting of stockholders called in
accordance with the Bylaws and following the closing of the Initial Public
Offering no action shall be taken by the stockholders by written consent.
4. Advance notice of stockholder nominations for the election of
directors and of business to be brought by stockholders before any meeting of
the stockholders of the Corporation shall be given in the manner provided in the
Bylaws of the Corporation.
VI.
A. A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for any breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived an improper
personal benefit. If the Delaware General Corporation Law is amended after
approval by the stockholders of this Article to authorize corporate action
further eliminating or limiting the personal liability of directors, then
3.
<PAGE> 5
the liability of a director shall be eliminated or limited to the fullest extent
permitted by the Delaware General Corporation Law, as so amended.
B. Any repeal or modification of this Article VI shall be prospective
and shall not affect the rights under this Article VI in effect at the time of
the alleged occurrence of any act or omission to act giving rise to liability or
indemnification.
VII.
A. The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, except as provided in paragraph B of this
Article VII, and all rights conferred upon the stockholders herein are granted
subject to this reservation.
B. Notwithstanding any other provisions of this Certificate of
Incorporation or any provision of law which might otherwise permit a lesser vote
or no vote, but in addition to any affirmative vote of the holders of any
particular class or series of the Voting Stock required by law, this Certificate
of Incorporation or any Preferred Stock Designation, the affirmative vote of the
holders of at least sixty-six and two-thirds percent (66-2/3%) of the voting
power of all of the then-outstanding shares of the Voting Stock, voting together
as a single class, shall be required to alter, amend or repeal Articles V, VI
and VII.
4.
<PAGE> 1
EXHIBIT 5.1
February 13, 1998
Il Fornaio (America) Corporation
770 Tamalpais Drive, #400
Corte Madera, CA 94925
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Il Fornaio (America) Corporation (the "Company") of a
Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission covering the offering of up to 1,797,594
shares of the Company's Common Stock, $.001 par value, (the "Shares") pursuant
to its 1997 Equity Incentive Plan, 1997 Employee Stock Purchase Plan, 1997
Non-Employee Directors' Stock Option Plan, 1992 Non-Employee Directors' Stock
Option Plan, 1991 Stock Option Plan and 1988 Stock Option Plan (collectively,
the "Plans").
In connection with this opinion, we have examined the Registration Statement,
your Amended and Restated Certificate of Incorporation, your By-laws, as
amended and such other documents, records, certificates, memoranda and other
instruments as we deem necessary as a basis for this opinion. We 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 paid for in accordance with the Plans, the
Registration Statement and Related Prospectuses will be validly issued, fully
paid, and nonassessable (except as to shares issued pursuant to certain deferred
payment arrangements, which will be fully paid and nonassessable when such
deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD LLP
/s/ Cydney S. Posner
By: ______________________________
Cydney S. Posner
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement of
Il Fornaio (America) Corporation on Form S-8 of our report dated March 3, 1997
appearing in Registration Statement No. 333-23605 on Form S-1 of Il Fornaio
(America) Corporation.
DELIOTTE & TOUCHE LLP
San Francisco, California
February 13, 1998
<PAGE> 1
Exhibit 99.4
IL FORNAIO (AMERICA) CORPORATION
1992 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
ADOPTED ON MARCH 4, 1992
1. PURPOSE.
(a) The purpose of the 1992 Non-Employee Directors' Stock Option
Plan (the "Plan") is to provide a means by which each director of Il Fornaio
(America) Corporation, a California corporation (the "Company"), who is not
otherwise an employee of the Company or of any Affiliate of the Company (each
such person being hereafter referred to as a "Non-Employee Director") will be
given an opportunity to purchase stock of the Company.
(b) The word "Affiliate" as used in the Plan means any parent
corporation or subsidiary corporation of the Company as those terms are defined
in Sections 424(e) and (f), respectively, of the Internal Revenue Code of 1986,
as amended (the "Code").
(c) The Company, by means of the Plan, seeks to retain the
services of persons now serving as Non-Employee Directors of the Company, to
secure and retain the services of persons capable of serving in such capacity,
and to provide incentives for such persons to exert maximum efforts for the
success of the Company.
(d) The Company intends that the options issued under the Plan not
be incentive stock options as that term is used in Section 422 of the Code.
1.
<PAGE> 2
2. ADMINISTRATION.
(a) The Plan shall be administered by the Board of Directors of
the Company (the "Board") unless and until the Board delegates administration
to a committee, as provided in subparagraph 2(c).
(b) The Board shall have the power, subject to, and within the
limitations of, the express provisions of the Plan:
(1) To construe and interpret the Plan and options
granted under it, and to establish, amend and revoke rules and regulations for
its administration. The Board, in the exercise of this power, may correct any
defect, omission or inconsistency in the Plan or in any option agreement, in a
manner and to the extent it shall deem necessary or expedient to make the Plan
fully effective.
(2) To amend the Plan as provided in paragraph 11.
(3) Generally, to exercise such powers and to perform
such acts as the Board deems necessary or expedient to promote the best
interests of the Company.
(c) The Board may delegate administration of the Plan to a
committee composed of not fewer than two (2) members of the Board (the
"Committee"). If administration is delegated to a Committee, the Committee
shall have, in connection with the administration of the Plan, the powers
theretofore possessed by the Board, subject, however, to such resolutions, not
inconsistent with the provisions of the Plan, as may be adopted from time to
time by the Board. The Board may abolish the Committee at any time and revest
in the Board the administration of the Plan.
2.
<PAGE> 3
3. SHARES SUBJECT TO THE PLAN.
(a) Subject to the provisions of paragraph 10 relating to
adjustments upon changes in stock, the stock that may be sold pursuant to
options granted under the Plan shall not exceed in the aggregate one hundred
thousand (100,000) shares of the Company's common stock. If any option granted
under the Plan shall for any reason expire or otherwise terminate without
having been exercised in full, the stock not purchased under such option shall
again become available for the Plan.
(b) The stock subject to the Plan may be unissued shares or
reacquired shares, bought on the market or otherwise.
4. ELIGIBILITY.
Options shall be granted only to Non-Employee Directors of the
Company.
5. NON-DISCRETIONARY GRANTS.
(a) Upon the date of the approval of the Plan by the Board (the
"Adoption Date"), each person who is then a Non-Employee Director of the
Company shall be granted an option to purchase five thousand five hundred
(5,500) shares of common stock of the Company on the terms and conditions set
forth herein.
(b) Each person who is, after the Adoption Date, elected for the
first time to be a Non-Employee Director of the Company shall, upon the date of
his initial election to be a Non-Employee Director by the Board or stockholders
of the Company, be granted an option to purchase three thousand (3,000) shares
of common stock of the Company on the terms and conditions set forth herein.
(c) For each year beginning in 1993, on the anniversary date of
each Non-Employee Director's initial grant of an option under the Plan, each
such person shall be granted an option
3.
<PAGE> 4
to purchase one thousand five hundred (1,500) shares of common stock of the
Company on the terms and conditions set forth herein. Should the date of grant
set forth above be a legal holiday, such grant shall be made on the next
business day.
6. OPTION PROVISIONS.
Each option shall contain the following terms and conditions:
(a) No option shall be exercisable after the expiration of ten
(10) years from the date it was granted.
(b) The exercise price of each option shall be one hundred percent
(100%) of the fair market value of the stock subject to such option on the date
such option is granted.
(c) The purchase price of stock acquired pursuant to an option
shall be paid, to the extent permitted by applicable statutes and regulations,
either (1) in cash at the time the option is exercised, or (2) by delivery to
the Company of shares of common stock of the Company that have been held for
the requisite period necessary to avoid a charge to the Company's reported
earnings and valued at the fair market value on the date of exercise, or (3) by
a combination of such methods of payment.
(d) An option shall not be transferable except by will or by the
laws of descent and distribution, and shall be exercisable during the lifetime
of the person to whom the option is granted only by such person or by his
guardian or legal representative.
(e) Options granted under the Plan shall not be subject to any
vesting restrictions, and shall be immediately vested and fully exercisable as
of the date of grant.
(f) The Company may require any optionee, or any person to whom an
option is transferred under subparagraph 6(d), as a condition of exercising any
such option: (1) to give written assurances satisfactory to the Company as to
the optionee's knowledge and experience
4.
<PAGE> 5
in financial and business matters; and (2) to give written assurances
satisfactory to the Company stating that such person is acquiring the stock
subject to the option for such person's own account and not with any present
intention of selling or otherwise distributing the stock. These requirements,
and any assurances given pursuant to such requirements, shall be inoperative if
(i) the issuance of the shares upon the exercise of the option has been
registered under a then-currently-effective registration statement under the
Securities Act of 1933, as amended (the "Securities Act"), or (ii), as to any
particular requirement, a determination is made by counsel for the Company that
such requirement need not be met in the circumstances under the then-applicable
securities laws.
(g) Notwithstanding anything to the contrary contained herein, an
option may not be exercised unless the shares issuable upon exercise of such
option are then registered under the Securities Act or, if such shares are not
then so registered, the Company has determined that such exercise and issuance
would be exempt from the registration requirements of the Securities Act.
7. COVENANTS OF THE COMPANY.
(a) During the terms of the options granted under the Plan, the
Company shall keep available at all times the number of shares of stock
required to satisfy such options.
(b) The Company shall seek to obtain from each regulatory
commission or agency having jurisdiction over the Plan such authority as may be
required to issue and sell shares of stock upon exercise of the options granted
under the Plan; provided, however, that this undertaking shall not require the
Company to register under the Securities Act either the Plan, any option
granted under the Plan, or any stock issued or issuable pursuant to any such
option. If the Company is unable to obtain from any such regulatory commission
or agency the authority
5.
<PAGE> 6
which counsel for the Company deems necessary for the lawful issuance and sale
of stock under the Plan, the Company shall be relieved from any liability for
failure to issue and sell stock upon exercise of such options.
8. USE OF PROCEEDS FROM STOCK.
Proceeds from the sale of stock pursuant to options granted under the
Plan shall constitute general funds of the Company.
9. MISCELLANEOUS.
(a) Neither an optionee nor any person to whom an option is
transferred under subparagraph 6(d) shall be deemed to be the holder of, or to
have any of the rights of a holder with respect to, any shares subject to such
option unless and until such person has satisfied all requirements for exercise
of the option pursuant to its terms.
(b) Nothing in the Plan or in any instrument executed pursuant
thereto shall confer upon any Non-Employee Director any right to continue in
the service of the Company or any Affiliate or shall affect any right of the
Company, its Board or stockholders or any Affiliate to terminate the service of
any Non-Employee Director with or without cause.
(c) No Non-Employee Director, individually or as a member of a
group, and no beneficiary or other person claiming under or through him, shall
have any right, title or interest in or to any option reserved for the purposes
of the Plan except as to such shares of common stock, if any, as shall have
been reserved for him pursuant to an option granted to him.
(d) In connection with each option made pursuant to the Plan, it
shall be a condition precedent to the Company's obligation to issue or transfer
shares to a Non-Employee Director, or an affiliate of such Non-Employee
Director, or to evidence the removal of any restrictions
6.
<PAGE> 7
on transfer, that such Non-Employee Director make arrangements satisfactory to
the Company to insure that the amount of any federal or other withholding tax
required to be withheld with respect to such sale or transfer, or such removal
or lapse, is made available to0 the Company for timely payment of such tax.
10. ADJUSTMENTS UPON CHANGES IN STOCK.
(a) If any change is made in the stock subject to the Plan, or
subject to any option granted under the Plan (through merger, consolidation,
reorganization, recapitalization, stock dividend, dividend in property other
than cash, stock split, liquidating dividend, combination of shares, exchange
of shares, change in corporate structure or otherwise), the Plan and
outstanding options will be appropriately adjusted in the class(es) and maximum
number of shares subject to the Plan and the class(es) and number of shares and
price per share of stock subject to outstanding options.
(b) In the event of: (1) a dissolution or liquidation of the
Company; (2) a merger or consolidation in which the Company is not the
surviving corporation; (3) a reverse merger in which the Company is the
surviving corporation but the shares of the Company's common stock outstanding
immediately preceding the merger are converted by virtue of the merger into
other property, whether in the form of securities, cash or otherwise; or (4)
any other capital reorganization in which more than fifty percent (50%) of the
shares of the Company entitled to vote are exchanged, then, at the sole
discretion of the Board and to the extent permitted by applicable law: (i) any
surviving corporation shall assume any options outstanding under the Plan or
shall substitute similar options for those outstanding under the Plan, (ii) the
time during
7.
<PAGE> 8
which such options may be exercised shall be accelerated and the options
terminated if not exercised prior to such event, or (iii) such options shall
continue in full force and effect.
11. AMENDMENT OF THE PLAN.
(a) The Board at any time, and from time to time, may amend the
Plan, provided, however, that the Board shall not amend the plan more than once
every six months, with respect to the provisions of the plan which relate to
the amount, price and timing of grants, other than to comport with changes in
the Code, the Employee Retirement Income Security Act, or the rules thereunder.
Except as provided in paragraph 10 relating to adjustments upon changes in
stock, no amendment shall be effective unless approved by the stockholders of
the Company within twelve (12) months before or after the adoption of the
amendment, where the amendment will:
(1) Increase the number of shares reserved for options
under the Plan;
(2) Modify the requirements as to eligibility for
participation in the Plan (to the extent such modification requires stockholder
approval in order for the Plan to comply with the requirements of Rule 16b-3
promulgated under the Exchange Act); or
(3) Modify the Plan in any other way if such modification
requires stockholder approval in order for the Plan to comply with the
requirements of Rule 16b-3 promulgated under the Exchange Act.
(b) Rights and obligations under any option granted before any
amendment of the Plan shall not be altered or impaired by such amendment of the
Plan unless (i) the Company requests the consent of the person to whom the
option was granted and (ii) such person consents in writing.
8.
<PAGE> 9
12. TERMINATION OR SUSPENSION OF THE PLAN.
(a) The Board may suspend or terminate the Plan at any time.
Unless sooner terminated, the Plan shall terminate on March 1, 2002. No
options may be granted under the Plan while the Plan is suspended or after it
is terminated.
(b) Rights and obligations under any option granted while the Plan
is in effect shall not be altered or impaired by suspension or termination of
the Plan, except with the consent of the person to whom the option was granted.
13. EFFECTIVE DATE OF PLAN; CONDITIONS OF EXERCISE.
(a) The Plan shall become effective upon adoption by the Board of
Directors, subject to the condition subsequent that the Plan is approved by the
stockholders of the Company.
(b) No option granted under the Plan shall be exercised or
exercisable unless and until the condition of subparagraph 13(a) above has been
met.
9.
<PAGE> 10
NONSTATUTORY STOCK OPTION
________________________, Optionee:
Il Fornaio (America) Corporation (the "Company"), pursuant to its 1992
Non-Employee Directors' Stock Option Plan (the "Plan") has this day granted to
you, the optionee named above, an option to purchase shares of the common stock
of the Company ("Common Stock"). This option is not intended to qualify and
will not be treated as an "incentive stock option" within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code").
The grant hereunder is in connection with and in furtherance of the
Company's compensatory benefit plan for participation of the Company's
employees (including officers), directors or consultants.
The details of your option are as follows:
1. The total number of shares of Common Stock subject to this
option is ___________________ (_______). Subject to the limitations contained
herein, this option shall be exercisable in full on the date of grant of this
option.
2. (a) The exercise price of this option is
_________________ ($____________) per share, being equal to the fair market
value of the Common Stock on the date of grant of this option.
(b) Payment of the exercise price per share is due in
full in cash (including check) upon exercise of all or any part of each
installment which has become exercisable by you; provided, however, that, if at
the time of exercise, the Company's Common Stock is publicly traded and quoted
regularly in the Wall Street Journal, payment of the exercise price, to the
extent permitted by applicable statutes and regulations, may be made by
delivery of already- owned shares of Common Stock, or a combination of cash and
already-owned Common Stock. Such Common Stock (i) shall be valued at its fair
market value on the date of exercise, (ii) if originally acquired from the
Company, must have been held for the period required to avoid a charge to the
Company's reported earnings and (iii) must be owned free and clear of any
liens, claims, encumbrances or security interests.
Notwithstanding the foregoing, this option may be exercised pursuant to a
program developed under Regulation T as promulgated by the Federal Reserve
Board which results in the receipt of cash (or check) by the Company prior to
the issuance of Common Stock.
10.
<PAGE> 11
3. The minimum number of shares with respect to which this option
may be exercised at any one time is one hundred (100), except that with respect
to the final exercise of this option this minimum shall not apply. In no event
may this option be exercised for any number of shares which would require the
issuance of anything other than whole shares.
4. Notwithstanding anything to the contrary contained herein,
this option may not be exercised unless the shares issuable upon exercise of
this option are then registered under the Act or, if such shares are not then
so registered, the Company has determined that such exercise and issuance would
be exempt from the registration requirements of the Act.
5. The term of this option commences on the date hereof and,
unless sooner terminated as set forth below or in the Plan, terminates on
_____________________ (which date shall be ten (10) years from the date this
option is granted). In no event may this option be exercised on or after the
date on which it terminates.
6. (a) This option may be exercised, to the extent specified
above, by delivering a notice of exercise (in a form designated by the Company)
together with the exercise price to the Secretary of the Company, or to such
other person as the Company may designate, during regular business hours,
together with such additional documents as the Company may then require
pursuant to subparagraph 6(f) of the Plan.
(b) By exercising this option you agree that the Company
may require you to enter an arrangement providing for the cash payment by you
to the Company of any tax withholding obligation of the Company arising by
reason of: (1) the exercise of this option; (2) the lapse of any substantial
risk of forfeiture to which the shares are subject at the time of exercise; or
(3) the disposition of shares acquired upon such exercise.
7. This option is not transferable, except by will or by the laws
of descent and distribution, and is exercisable during your life only by you.
8. This option is not an employment contract and nothing in this
option shall be deemed to create in any way whatsoever any obligation on your
part to continue in the employ of the Company, or of the Company to continue
your employment with the Company. References herein to employment, employee
and similar terms shall be deemed to include the performance of services as a
consultant or a director, as the case may be, provided, however, that no rights
as an employee shall arise by reason of the use of such terms.
9. Any notices provided for in this option or the Plan shall be
given in writing and shall be deemed effectively given upon receipt or, in the
case of notices delivered by the Company to you, five (5) days after deposit in
the United States mail, postage prepaid, addressed to you at the address
specified below or at such other address as you hereafter designate by written
notice to the Company.
11.
<PAGE> 1
EXHIBIT 99.5
IL FORNAIO (AMERICA) CORPORATION
1991 INCENTIVE STOCK OPTION PLAN
1. PURPOSE OF THE PLAN
This Plan is intended to provide a method whereby officers and other key
employees of IL FORNAIO (AMERICA) CORPORATION (the "Corporation") and
its subsidiaries who are mainly responsible for the management of the
business and are in a position to make substantial contributions to its
sound development may be encouraged to remain in the employ of the
Corporation or its subsidiaries and to acquire a larger proprietary
interest in the Corporation.
2. ADMINISTRATION
The Plan shall be administered either by the Board of Directors of Il
Fornaio ("Board of Directors") or by a committee appointed by the Board
of Directors. (The term "Committee" shall mean any committee so
appointed or if there is none, the Board of Directors.) Directors of Il
Fornaio who are either eligible for options or to whom options have been
granted may vote on any matters affecting the administration of the Plan
or the granting of options under the Plan; provided, however, that no
option may be granted to a director under the Plan except by:
(i) The Committee, at a meeting at which a majority of
its members are disinterested persons; or
(ii) The Board of Directors at a meeting at which the
majority of the directors voting on a grant are
disinterested persons.
For purposes of this Section 2, a "disinterested person" is a person
who, at a given meeting of the Committee, is not being considered to
receive a grant of stock options. Subject to the provisions of the Plan,
the Committee is authorized (a) to direct the grant of stock options,
(b) to determine which of the employees of the Company or any of its
subsidiaries shall be granted options to purchase Stock, when such grant
shall be made and the number of shares of Stock to be covered by such
options, (c) to determine the fair market value of the Stock covered by
each option, (d) to determine the nature and amount of consideration to
flow to the Company, (e) to determine the manner and in its discretion
either generally or in any one or more particular instances to
accelerate the time or times when such options shall be exercisable, (f)
to determine other conditions and
<PAGE> 2
limitations, if any, on each option granted under the Plan (which
options need not be identical), (g) to prescribe the form or forms of
the instruments evidencing the options and any restrictions imposed on
the Stock purchased under the options and of any other instruments
required under the Plan and to change such forms from time to time, (h)
to adopt, amend and rescind rules and regulations for the administration
of the Plan and waive compliance either generally or in any one or more
particular instances by an optionee with the requirements of any such
rule or regulation or any option, subject to the provisions of the Plan
and any other applicable requirements, (i) to waive any restrictions
imposed with respect to the transferability of Stock acquired on
exercise of options granted under the Plan, (j) to decide all questions
and settle all controversies and disputes which may arise in connection
with the Plan and (k) to interpret the Plan and to make all other
determinations deemed necessary or advisable for the administration of
the Plan. A majority of the members of the Committee shall constitute a
quorum, and all determinations of the Committee shall be made by a
majority of such quorum. All decisions, determinations and
interpretations of the Committee shall be binding on all parties
concerned. Any determination of the Committee under the Plan may be made
without notice or meeting of the Committee by a writing signed by a
majority of the Committee members.
3. STOCK SUBJECT TO THE PLAN
The shares to be issued upon exercise of options granted under this Plan
shall be made available, at the discretion of the Board of Directors,
either from the authorized but unissued Common Stock of the Corporation
or from shares of Common Stock reacquired by the Corporation including
shares purchased from existing shareholders.
Subject to the provisions of the succeeding paragraph of this Section,
the aggregate number of shares which may be delivered on exercise of
options under this Plan shall not exceed 100,000 shares. The aggregate
fair market value of the shares with respect to which options designated
as incentive stock options under the Plan which are exercisable for the
first time by any optionee during any calendar year (under all plans of
the Company or any parent or subsidiary) shall not exceed $100,000. If,
at any time during the term of this Plan, an option granted under this
Plan shall have expired or terminated for any reason without having been
2
<PAGE> 3
exercised in full, the unpurchased shares shall become available for
option to other employees.
In the event that (i) the number of outstanding shares of Common Stock
of the Corporation shall be changed by reason of split-ups, combinations
or reclassifications of shares or otherwise, (ii) any stock dividends
are distributed to the
3
<PAGE> 4
holders of Common Stock of the Corporation, or (iii) the Common Stock of
the Corporation is converted into or exchanged for other shares as a
result of any merger, consolidation or recapitalization then, in any
such case, the number of shares for which options may thereafter be
granted under this Plan, both in the aggregate and as to any individual,
and the number of shares then subject to options theretofore granted
under this Plan and the price per share payable upon the exercise of
such options may be appropriately adjusted by the Committee so as to
reflect such change.
Subject to any required action by the shareholders, if the Corporation
shall be the surviving corporation in any merger or consolidation (other
than a merger or consolidation in which the Corporation survives but its
outstanding shares are converted into securities of another corporation
or exchanged for other consideration), any option granted hereunder
shall pertain and apply to the securities which a holder of the number
of shares of stock then subject to the option would have been entitled
to receive. A dissolution or liquidation of the Corporation or a merger
or consolidation in which the Corporation is not the surviving
corporation or its outstanding shares are so converted or exchanged
shall cause every option hereunder to terminate; provided, however, that
in the event the successor or surviving corporation does not grant
replacement options in any such merger or consolidation, at least twenty
(20) days prior to the effective date of any such merger or
consolidation, the Committee shall make all options outstanding
hereunder immediately exercisable; and provided further, in the event of
the sale of all or substantially all of the assets of the Corporation,
the Committee shall make all options outstanding hereunder immediately
exercisable upon the approval of eighty percent (80%) of the outstanding
shares of the voting stock of the Corporation.
4. ELIGIBILITY OF OPTIONEES.
Options may be granted only to key employees of the Corporation and of
its subsidiaries who are mainly responsible for the management of the
business of the Corporation (or a subsidiary) and are in a position to
make substantial contributions to the sound performance of the
Corporation (or of a subsidiary). The term "key employees" shall include
officers as well as other employees devoting full time to the
Corporation and shall include Directors who are also active officers or
employees of the Corporation (or
4
<PAGE> 5
of a subsidiary). Any member of the Board of Directors who is not an
officer or employee devoting full time to the Corporation (or a
subsidiary) shall not be eligible to receive an option under this Plan.
5
<PAGE> 6
5. TERMS AND CONDITIONS OF OPTIONS.
Options granted under the Plan shall be evidenced by agreements in such
form as the Committee shall from to time approve, which agreements shall
comply with and be subject to the following terms and conditions.
A. OPTION PRICE.
The purchase price of the shares subject to each option shall be
determined by the Committee according to the following Section 6
hereof. Such price shall not be less than 100% of the fair market
value of the shares of the Common Stock of the Corporation on the
day preceding the day on which such option is granted to any
employee owning less than 10% of the combined voting power of all
classes of stock of the Corporation. Such price shall not be less
than 110% of the fair market value of the shares of the Common
Stock of the Corporation on the day preceding the day on which
such option is granted to any employee owning 10% or more of the
combined voting power of all classes of stock of the Corporation.
B. OPTION PRICE
Each option shall state the number of shares to which it
pertains.
C. METHOD AND TIME OF PAYMENT
To exercise an option, the optionee must pay the full exercise
price of the shares being purchased. Payment must be made either:
(i) in cash, (ii) at the discretion of the Committee, by
delivering shares of the Corporation's Common Stock already owned
by the optionee and having a fair market value equal to the
applicable exercise price, or (iii) a combination of cash and
such shares.
The Company shall not be obligated to deliver any shares of stock
unless and until, in the opinion of the Company's counsel, all
applicable federal and state laws and regulations have been
complied with, nor, in the event the outstanding stock is at the
time listed upon any stock exchange, unless and until the shares
to be delivered have been listed or authorized to be added to the
list upon official notice of issuance upon such
6
<PAGE> 7
exchange, nor unless or until all other legal matters in
connection with the issuance and delivery of shares have been
approved by the Company's counsel. Without limiting the
generality of the foregoing, the Company
7
<PAGE> 8
(i) may require from the optionee such investment representation
or such agreement, if any, as counsel for the Company may
consider necessary in order to comply with the Securities Act of
1933 and (ii) may require that the optionee agree that any sale
of the shares will be made only in such manner as is permitted by
the Committee and that he will notify the Company when he makes
any disposition of the shares whether by sale, gift or otherwise.
The Company shall use its best efforts to effect any such
compliance and listing, and the optionee shall take any action
reasonably requested by the Company in such connection. An
optionee shall have the rights of a shareholder only as to shares
actually issued to him under the Plan.
D. EXERCISE OF OPTIONS
Each option granted under this Plan shall terminate not later
than the expiration of five years from the date on which the
grant was made; provided, however, the Committee, in its
discretion, may grant options with a six year vesting period to
an individual meeting the suitability standards set forth by the
California Department of Corporations; and provided further, for
options granted to holders of ten percent (10%) or more of the
combined voting power of the Corporation the term shall not
exceed five years from the date of the grant. The Committee, in
its discretion, may prescribe a shorter period for any individual
grant.
Except as hereinafter provided, each option shall be made
exercisable at such time or times, whether or not in
installments, as the Committee shall prescribe at the time the
option is granted, provided, however, that any vesting provisions
prescribed by the Committee shall be effective on a pro rata
basis over a term not to exceed five (5) years from the date the
option is granted, or six (6) years if the individual meets the
suitability standards described above. In the case of an option
not immediately exercisable in full, the Committee may at any
time accelerate the time at which all or any part of the option
may be exercised. Subject to the provisions of this Section, each
option may be exercised in whole or, from time to time, in part
with respect to the number of shares as to which it is then
exercisable in accordance with the terms of this Plan.
8
<PAGE> 9
E. PRIOR OUTSTANDING OPTIONS
No option granted to an individual pursuant to this Plan shall be
exercised while there is outstanding any incentive stock option
(as defined in Section 422A of the Internal Revenue Code of 1954,
as amended) which was granted before such option to such
individual to purchase Common Stock of the Corporation or of any
corporation which (at the time of the granting of such option)
was a parent or subsidiary corporation of the Corporation, or is
a predecessor corporation of the Corporation or such parent or
subsidiary corporation. An incentive stock option shall be
treated as outstanding until it is exercised in full or allowed
to expire due to lapse of time regardless of whether such option
is cancelled by the Committee for any reason not related to
termination of active employment of an optionee.
F. NON-TRANSFERABILITY OF OPTIONS
No option granted under this Plan shall be transferable by the
grantee otherwise than by his or her last will and testament, or
by the laws of descent and distribution, and during his or her
lifetime, such option shall be exercisable only by such grantee.
G. TERMINATION OF EMPLOYMENT EXCEPT DISABILITY OR DEATH
If an optionee's employment with the Corporation (or a
subsidiary) shall cease for any reason other than his or her
disability (as defined in Internal Revenue Code Section
105(d)(4)) or his or her death, after at least one year of
continuous employment with the Corporation (or such subsidiary)
immediately following the date on which an option, if any, is
granted, the optionee may exercise such option, to the extent
that such option could be exercised at the time of such cessation
of employment, at any time within six months after the optionee
shall so cease to be an employee, and in the event of his or her
death within such three month period, his or her options, if any,
may be exercised to the extent and in the manner provided in
Paragraph I of this Section 5. Any questions as to whether and
when there has been a cessation of employment shall be
9
<PAGE> 10
determined by the Committee and its determination on such
questions shall be final.
H. TERMINATION OF EMPLOYMENT DUE TO DISABILITY
If an optionee's employment with the Corporation (or a
subsidiary) shall cease by reason of his or her disability (as
defined in Internal Revenue Code Section 105(d)(4)), after at
least one year of continued employment with the Corporation (or
such subsidiary) immediately following the date on which an
option, if any, is granted, the optionee may exercise such
option, to the extent that such option could be exercised at the
cessation of employment, at any time within twelve months after
the optionee shall so cease to be an employee.
I. TERMINATION DUE TO DEATH
If an optionee's employment with the Corporation (or a
subsidiary) shall cease due to the optionee's death, or if the
optionee shall die within three months after cessation of
employment for any reason other than disability, or if he or she
shall die within twelve months after cessation of employment due
to disability, any options theretofore granted under this Plan
may be exercised by the optionee's estate or by the person
designated in his or her last will and testament to the full
extent that such option could have been exercised by such
deceased optionee immediately prior to death, provided such
options are exercised within six months after such optionee's
death.
6. DETERMINATION OF FAIR MARKET VALUE
For purposes of determining the option price and for all other valuation
purposes under the Plan, the Fair Market Value of a share of Common
Stock on any date will be determined by the Board of Directors and may
be computed by such method as the Board of Directors shall consider will
reflect the fair market value of the stock on such date or, if the
shares of Common Stock are publicly traded, at the mean of the lowest
and highest selling prices of one share of Common Stock on the date in
question on the over-the-counter market or the closing price on the
principal exchange where the Corporation's stock prices are officially
quoted.
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<PAGE> 11
7. INTERPRETATION OF THE PLAN
The Committee shall have full power and authority to construe and
interpret this Plan. Decisions of the Committee shall be final,
conclusive and binding on all parties, including the Corporation, its
subsidiaries and stockholders, and the optionees, their estates,
executors, administrators, heirs and assigns.
8. EMPLOYMENT RIGHTS
Neither the adoption of the Plan nor the grant of any option under it
shall confer upon any employee of the Company any right to continued
employment with the Company, nor shall either interfere in any way with
the right of the Company to terminate the employment of any of its
employees at any time, with or without cause. Neither the existence of
the Plan nor the grant of any option hereunder shall be taken into
account in determining any damages to which an employee may be entitled
upon termination of his employment.
9. AMENDMENTS TO PLAN
The Committee, from time to time, may prescribe, amend and rescind
rules and regulations relating to this Plan, and, subject to the
approval of the Board of Directors of the Corporation, may at any time
terminate, modify or suspend the operation of this Plan, provided that,
without the approval of the shareholders of the Corporation, no such
modification shall:
(i) materially increase the benefits accruing to participants under
this Plan;
(ii) materially increase the number of shares of the Corporation
which may be issued under this Plan; or
(iii) materially modify the requirements as to eligibility for
participation in this Plan.
10. TERMINATION OR DISCONTINUANCE OF PLAN
The Plan shall terminate ten years from the date on which it is adopted
by the Board of Directors or the date on which it is approved by the
shareholders, whichever is earlier. Prior to the expiration of such
ten-year period, the Board of Directors may suspend or terminate the
Plan or discontinue granting options under the Plan at any time;
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<PAGE> 12
provided, however, that any such suspension, termination or
discontinuance shall not affect any options then outstanding under the
Plan. No options under the Plan may be granted after termination of the
Plan.
11. EFFECTIVE DATE
This Plan shall be submitted to the Board of Directors for approval and
shall be effective and operative at the earliest date permitted by
applicable law, consistent with the intention that options granted
under this Plan be incentive stock options as defined in Section 422A
of the Internal Revenue Code.
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<PAGE> 13
STOCK OPTION AGREEMENT
THIS AGREEMENT, entered into on ____________, between Il Fornaio
(America) Corporation, a California corporation (the "Corporation"), and
__________________ ("Employee").
R E C I T A L S
Employee is a full-time officer and key employee of the Corporation who
has major responsibility for the management of the business of the Corporation
and who has made and will make substantial contributions to the sound
performance of the Corporation. In order to encourage Employee to remain in the
employ of the Corporation, and to allow him to acquire a larger proprietary
interest in the Corporation, the Corporation desires to grant Employee an
Incentive Stock Option ("Option") pursuant to the 1991 Incentive Stock Option
Plan ("Plan") adopted by the Corporation's Board of Directors and to be approved
by its stockholders, upon the conditions hereinafter specified.
NOW, THEREFORE, it is agreed:
1. Option. The Corporation hereby grants to Employee, upon all of the
terms and subject to all of the conditions set forth herein, and further subject
to the requisite approval of the Plan by the Corporation's stockholders and the
California Department of Corporations, an Option to purchase ______________
_______________________ (_____) shares of the Corporation's Common Stock at an
option price of $____ per share. Such price is not less than one hundred percent
(100%) of the fair market value ("Fair Market Value") of the shares of the
Common Stock of the Corporation on the day on which this Option is granted or,
in the case of an employee who owns ten percent (10%) or more of the outstanding
voting stock of the Corporation, is not less than one hundred ten percent (110%)
of the Fair Market Value of a share on the date of grant. Employee hereby
accepts such grant.
2. Payment. The option price shall be fully payable in United States
dollars upon the exercise of this Option and may be paid (i) in cash, or (ii) by
delivering shares of the Corporation's Common Stock already owned by Employee
and having a Fair Market Value equal to the applicable exercise price, or (iii)
a combination of cash and such shares.
3. Term and Exercise of Option. This Option shall not be exercisable
after the expiration of five (5) years from the day on which this Option is
granted. This Option may be exercised in any event only after one year of
continuous employment with the Corporation immediately following the date on
which this Option
<PAGE> 14
is granted and, except in cases provided hereinafter, only during the
continuance of the employment of Employee with the Corporation, and may be
exercised, subject to such overall limitations, only to the extent of 20% of the
total number of optioned shares after the expiration of one year following the
date this Option is granted, and only to the extent of an additional 20% of the
total number of optioned shares after the expiration of two years following the
date this Option is granted, and only to the extent of an additional 20% of the
total number of optioned shares after the expiration of three years following
the date this Option is granted, and only to the extent of an additional 20% of
the total number of optioned shares after the expiration of four years following
the date this Option is granted, and only to the extent of an additional 20% of
the total number of optioned shares after the expiration of four years and 364
days following the date this Option is granted, such limitations being
calculated, in the case of any resulting fraction, to the nearest lower whole
number of shares. Subject to the provisions of this Section, this Option may be
exercised in whole or, from time to time, in part with respect to the number of
shares as to which it is then exercisable in accordance with the terms of this
Agreement.
This option may be exercised only as to whole shares and only by written
notice signed by Employee (or, in the case of exercise after Employee's death,
by Employee's personal representative) in the form attached hereto as Exhibit A,
and mailed or delivered to the Secretary of the Corporation, at its principal
office, which notice shall:
(a) Specify the number of option shares with respect to which
this Option is being exercised;
(b) Be accompanied by payment in full for the purchase price; and
(c) To the extent exercised by a person or persons other than
Employee, be accompanied by appropriate proof that such person or persons have
the right to exercise this Option.
This Option shall be deemed so exercised at the time of receipt of said
notice and payment and the Corporation shall mail or deliver to the appropriate
person as soon as practicable a certificate or certificates representing the
shares purchased thereby.
The issuance of shares upon exercise hereof shall be expressly subject
to compliance with all applicable federal and
2
<PAGE> 15
state securities laws and the regulations of any stock exchange on which
Corporation's Common Stock may be listed at the time of such issuance. Employee
agrees to make such representations and warranties to the Company, as may, in
the opinion of the Company's counsel, be required by law or applicable
regulations.
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<PAGE> 16
4. Non-Transferability. During Employee's lifetime, this Option shall be
exercisable only by him and shall not be transferable by him otherwise than by
his last will and testament or by the laws of descent and distribution.
5. Termination of Employment Except Disability or Death. If Employee's
employment with the Corporation shall cease for any reason other than his
disability (as defined in Internal Revenue Code Section 105(d)(4) or his death,
after at least one year of continuous employment with the Corporation
immediately following the date on which this Option is granted, Employee may
exercise such Option, to the extent that such Option could be exercised at the
time of such cessation of employment, at any time within three months after he
shall so cease to be an employee, and in the event of his death within such
three month period, this Option may be exercised to the extent and in the manner
provided in Section 7 of this Agreement.
6. Termination of Employment Due to Disability. If Employee's employment
with the Corporation shall cease by reason of his disability (as defined in
Internal Revenue Code Section 105(d)(4)) after at least one year of continuous
employment with the Corporation immediately following the date on which this
Option is granted, he may exercise such Option, to the extent that such Option
could be exercised at the cessation of employment, at any time within twelve
months after he shall so cease to be an employee.
7. Termination Due to Death. If Employee's employment with the
Corporation shall cease due to his death, or if he shall die within three months
after cessation of employment for any reason other than disability, or if he
shall die within twelve months after cessation of employment due to disability,
this Option may be exercised by his estate or by the person designated in his
last will and testament to the full extent that this Option could have been
exercised by Employee immediately prior to his death, provided this Option is
exercised within six months after his death.
8. Recapitalization. Subject to any required action by the shareholders,
the number of shares of Common Stock covered by this Option, and the price per
share thereof, shall be proportionately adjusted for any increase or decrease in
the number of issued shares of Common Stock of the Corporation resulting from a
subdivision or consolidation of shares of Common Stock or the payment of a stock
dividend on the Common Stock or any other increase or decrease in the number of
shares of Common Stock effected without receipt of consideration by the
Corporation.
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<PAGE> 17
Subject to any required action by the stockholders, if the Corporation
shall be the surviving corporation in any merger or consolidation, this Option
shall pertain to and apply to the securities to which a holder of the number of
shares of Common Stock subject to the option would have been entitled. A
dissolution or liquidation of the Corporation or a merger or consolidation in
which the Corporation is not the surviving corporation shall cause the Option to
terminate, provided, however, that in the event the successor or surviving
corporation does not grant replacement options in any such merger or
consolidation, at least twenty (20) days prior to such merger or consolidation
the Corporation shall make this Option immediately exercisable; provided
further, in the event of the sale of all or substantially all of the assets of
the Corporation, the Corporation shall make this option immediately exercisable
upon the approval of eighty percent (80%) of the outstanding shares of the
voting stock of the Corporation.
Except as previously provided in this Section 8, Employee shall have no
rights by reason of any subdivision or consolidation of shares of stock of any
class or the payment of any stock dividend or any other increase or decrease in
the number of shares of stock of any class or by reason of any dissolution,
liquidation, merger, or consolidation or spin-off of assets or stock of another
corporation, and any issue by the Corporation of shares of stock of any class,
or securities convertible into shares of stock of any class, shall not affect,
and no adjustment by reason thereof shall be made with respect to, the number or
price of shares of Common Stock subject to the Option.
The grant of this Option shall not affect in any way the right or power
of the Corporation to make adjustments, reclassifications, reorganizations or
changes of its capital or business structure or to merge or to consolidate or to
dissolve, liquidate or sell, or transfer all or any part of its business or
assets.
9. Rights as a Stockholder. Employee shall have no rights as a
stockholder with respect to any shares covered by his Option until the date of
the issuance of a stock certificate to him for such shares. No adjustment shall
be made for dividends (ordinary or extraordinary, whether in cash, securities or
other property) or distributions or other rights for which the record date is
prior to the date such stock certificate is issued, except as provided in
Section 8 hereof.
10. Modification, Extension, and Renewal of Options. The
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<PAGE> 18
Committee may modify, extend, or renew the Option, or accept the surrender of
the Option (to the extent not theretofore exercised)
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<PAGE> 19
and authorize the granting of a new option in substitution therefor (to the
extent not theretofore exercised). The Committee may not, however, modify the
Option so as to specify a lower price or accept the surrender of the Option and
authorize the granting of a new option in substitution therefor specifying a
lower price. Notwithstanding the foregoing however, no modification of the
Option shall, without the consent of Employee, alter or impair any rights or
obligations under the Option.
11. Investment Purpose. This Option is granted on the condition that the
purchase of stock hereunder shall be for investment purposes, and not with a
view to resale or distribution. Each exercise hereof shall be deemed a
representation by Employee that the foregoing condition exists. The shares
purchased may not be resold unless they are registered under the Securities Act
of 1933, as amended, or unless an exemption is available.
12. No Obligation to Exercise Option. The granting of this Option shall
impose no obligation upon Employee to exercise such Option.
13. No Tax Representations. The Corporation has made no warranties or
representations to Employee with respect to the income tax consequences of the
transactions contemplated by this Agreement, and Employee is in no manner
relying on the Corporation or the Corporation's representatives for an
assessment of such tax consequences.
14. Interpretation. The Committee administering the Plan shall have full
power and authority to construe and interpret the provisions of the Plan and any
questions or disputes which may arise under this Option. Decisions of the
Committee shall be final, conclusive and binding on all parties, including the
Corporation, its subsidiaries and stockholders and the optionees, their estates,
administrators, heirs and assigns.
15. Subordination to the Plan. This Agreement is made subject to the
terms and conditions of the Plan. In the event of any conflict between this
Agreement and the Plan, the terms and provisions of the Plan shall in all events
govern and prevail. Employee hereby acknowledges that he has received and read a
copy of the Plan and understands and agrees to its provisions.
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<PAGE> 20
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
IL FORNAIO (AMERICA) CORPORATION
By: ________________________________________
Laurence B. Mindel, President
EMPLOYEE
____________________________________________
_____________
8
<PAGE> 1
EXHIBIT 99.6
IL FORNAIO (AMERICA) CORPORATION
1988 STOCK OPTION PLAN
1. Purpose. The purpose of this 1988 Stock Option Plan (the "Plan") is
to provide a special incentive to selected officers and other key employees of
IL FORNAIO (AMERICA) CORPORATION ("Il Fornaio") and its present and future
subsidiaries (Il Fornaio and such subsidiaries are collectively referred to
herein as the "Company") in order to promote the business of the Company and to
encourage such persons to accept or continue employment with the Company.
Accordingly, the Company will offer to sell shares of Common Stock of Il Fornaio
("Stock") as hereinafter provided to such employees of the Company as are
designated in accordance with the provisions of the Plan.
2. Administration. The Plan shall be administered either by the Board of
Directors of Il Fornaio ("Board of Directors") or by a committee appointed by
the Board of Directors. (The term "Committee" shall mean any committee so
appointed or if there is none, the Board of Directors.) Directors of Il Fornaio
who are either eligible for options or to whom options have been granted may
vote on any matters affecting the administration of the Plan or the granting of
options under the Plan; provided, however,
<PAGE> 2
that no option may be granted to a director under the Plan except by:
(i) The Committee, at a meeting at which a majority of its
members are disinterested persons; or
(ii) The Board of Directors at a meeting at which the majority of
the directors voting on a grant are disinterested persons.
For purposes of this Section 2, a "disinterested person" is a person
who, at a given meeting of the Committee, is not being considered to receive a
grant of stock options. Subject to the provisions of the Plan, the Committee is
authorized (a) to direct the grant of stock options, (b) to determine which of
the employees of the Company or any of its subsidiaries shall be granted options
to purchase Stock, when such grant shall be made and the number of shares of
Stock to be covered by such options, (c) to determine the fair market value of
the Stock covered by each option, (d) to determine the nature and amount of
consideration to flow to the Company, (e) to determine the manner and in its
discretion either generally or in any one or more particular instances to
accelerate the time or times when such options shall be exercisable, (f) to
determine other conditions and limitations, if any, on each option granted under
the Plan (which options need not be identical), (g) to prescribe the form or
forms of the instruments evidencing the options and any restrictions imposed on
the Stock purchased under the options and of any other instruments required
under the Plan and to change
2
<PAGE> 3
such forms from time to time, (h) to adopt, amend and rescind rules and
regulations for the administration of the Plan and waive compliance either
generally or in any one or more particular instances by an optionee with the
requirements of any such rule or regulation or any option, subject to the
provisions of the Plan and any other applicable requirements, (i) to waive any
restrictions imposed with respect to the transferability of Stock acquired on
exercise of options granted under the Plan, (j) to decide all questions and
settle all controversies and disputes which may arise in connection with the
Plan and (k) to interpret the Plan and to make all other determinations deemed
necessary or advisable for the administration of the Plan. A majority of the
members of the Committee shall constitute a quorum, and all determinations of
the Committee shall be made by a majority of such quorum. ll decisions,
determinations and interpretations of the Committee shall be binding on all
parties concerned. Any determination of the Committee under the Plan may be made
without notice or meeting of the Committee by a writing signed by a majority of
the Committee members.
3. Shares Covered by the Plan. The Stock to be offered under the Plan
may be unissued shares or treasury shares, or a combination thereof, as the
Board of Directors may from time to time determine. Subject to Section 10, the
number of shares available and reserved for issue under the Plan shall not
exceed
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<PAGE> 4
82,155 shares of Stock. Shares covered by an option that remain unpurchased upon
expiration or termination of the option may be used for further options.
4. Eligibility. Key employees of the Company, including officers and
directors who are employees, but excluding any employee who owns stock
possessing more than ten percent (10%) of the total combined voting power or
value of all classes of Stock of Il Fornaio or a parent or subsidiary of Il
Fornaio, shall be eligible for selection by the Committee as optionees under the
Plan. In selecting the individuals to whom options shall be granted, as well as
in determining the number of shares of Stock subject to each option, the
Committee shall take into consideration the recommendations of the members of
the Board of Directors who are also employees of the Company and such other
factors as it shall deem relevant in connection with accomplishing the purposes
of the Plan. An individual who has been granted an option may, if he is
otherwise eligible, be granted an additional option or options.
5. Terms and Conditions of Options. All options granted under the Plan
shall be subject to the following terms and conditions and to such other terms
and conditions as the Committee shall determine to be appropriate to accomplish
the purposes of the Plan:
(a) Option Price. The option price per share of Stock
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<PAGE> 5
covered by each option shall be equal to the greater of: (i) 85% of the fair
market value of the Common Stock of the Company at the date of grant, as
determined from time to time by the Committee; and (ii) $.50 per share, adjusted
as necessary from time to time pursuant to Section 10. The proceeds of the sale
of Stock subject to an option are to be added to the general funds of the
Company and used for such corporate purposes as the Board of Directors may
determine.
(b) Time of Granting Options. The date of grant of an option under
the Plan shall, for all purposes, be the date on which the Committee makes the
determination granting such option; and no grant shall be deemed effective under
the Plan prior to such date. Notice of the determination shall be given to each
employee to whom an option is so granted within a reasonable time after the date
of such grant. The grant of an option shall impose no obligation to exercise
such option.
(c) Period of Options. The period of an option shall not exceed five
(5) years from the date of grant and no option shall be exercisable after the
expiration of such term. In addition, and except as provided in Section 6
hereof, an option shall not be exercisable unless the holder thereof shall, at
the time of exercise, be an employee of the Company.
(d) Exercise of Options. Except as hereinafter provided, each option
shall be made exercisable at such time or
5
<PAGE> 6
times, whether or not in installments, as the Committee shall prescribe at the
time the option is granted, provided, however, that any vesting provisions
prescribed by the Committee shall be effective on a pro rata basis over a term
not to exceed five (5) years from the date the option is granted. In the case of
an option not immediately exercisable in full, the Committee may at any time
accelerate the time at which all or any part of the option may be exercised.
(e) Instruments. The instruments evidencing stock options shall contain
such provisions relating to exercise and other matters as are reasonably
required by the Committee.
6. Early Termination of Option. All options granted which have not yet
become exercisable shall terminate immediately upon termination of employment,
or upon death or disability. All exercisable but unexercised options shall
terminate as follows:
(a) Termination of Employment. All right to exercise an option shall
terminate not more than one (1) month after the optionee's employment terminates
for any reason other than his death or his disability (within the meaning of
Section 105(d)(4) of the Internal Revenue Code). The Committee shall have the
authority to determine in each case whether an authorized leave of absence or
absence for military or government service shall be deemed a termination of
employment for purposes of this subsection.
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<PAGE> 7
(b) Death of Optionee. If any optionee dies while employed by the
Company, or within three months after the termination of such employment, his
option shall terminate at the time provided in his option certificate for
termination in the event of death or, if the certificate contains no such
provision, his option shall terminate one year after his death (but in each
instance not later than the expiration of the option period). In the meantime,
subject to the limitations in the option, it may be exercised by the executors
or administrators of his estate or by his legatees or heirs.
(c) Disability. In the event of termination of an optionee's
employment as a result of disability within the meaning of Section 105(d)(4) of
the Internal Revenue Code, an optionee's option shall terminate one year after
his employment terminates. In no event, however, may an option be exercised
after the expiration of the option period.
7. Repurchase Right.
(a) (i) Until such time as the Common Stock of the Company has been
registered with the Securities and Exchange Commission under the Securities Act
of 1933, Optionee shall not sell, assign, encumber, transfer or otherwise
dispose of any shares of Stock as to which the Option shall have been exercised
without first giving notice to the Company of the terms and provisions of a bona
fide offer of a proposed transferee to
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<PAGE> 8
purchase such shares and making a written offer to sell such shares to the
Company on such terms and conditions.
(ii) Upon receipt of the written offer described in Section
7(a)(i), the Company shall have a period of twenty (20) days in which to elect
to purchase all or none of the shares offered by Optionee by delivering written
notice of such election to Optionee. If no election to purchase is delivered by
the Company within such 20-day period, or if the Company elects not to purchase
the shares offered by Optionee, then Optionee may transfer such shares to the
proposed transferee, provided that such transfer occurs within sixty (60) days
after the date of the initial notice pursuant to Section 7(a)(i) hereof and on
the terms specified in such notice.
(b) (i) In the event Optionee is terminated as an Employee, with or
without cause, the Company shall for a period of thirty (30) days following such
termination have the option to purchase the shares of Stock as to which the
Option shall have been exercised at the greater of (1) the fair market value of
such shares as determined by the Board of Directors (but not less than the net
book value of such shares) or, if the shares of Common Stock are publicly
traded, at the mean between the bid and asked price or at the closing price, as
applicable, on the date the Company notifies Optionee that it will purchase such
shares, or (2) the original purchase price per share paid by the
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<PAGE> 9
Optionee.
(ii) The option held by the Company pursuant to Section 7(b)(i)
shall be exercisable by delivery of written notice to Optionee or his estate or
representative, stating the number of shares as to which such option is to be
exercised.
8. Payment for Stock.
(a) Shares of Stock which are subject to an option shall be issued
only upon receipt by the Company of full payment of the consideration for the
shares of Stock as to which the option is exercised. As consideration for
payment of such shares, the Company may accept cash, Common Stock of the Company
or a promissory note from the optionee for the price of the shares with interest
at the rate of ten percent (10%) per annum; the interest shall be paid annually
and the principal shall be due upon demand.
(b) The Company shall not be obligated to deliver any shares of Stock
unless and until, in the opinion of the Company's counsel, all applicable
federal and state laws and regulations have been complied with, nor, in the
event the outstanding Stock is at the time listed upon any stock exchange,
unless and until the shares to be delivered have been listed or authorized to be
added to the list upon official notice of issuance upon such exchange, nor
unless or until all other legal matters in connection with the issuance and
delivery of shares have been approved by the Company's counsel. Without limiting
the
9
<PAGE> 10
generality of the foregoing, the Company (i) may require from the optionee such
investment representation or such agreement, if any, as counsel for the Company
may consider necessary in order to comply with the Securities Act of 1933 and
(ii) may require that the optionee agree that any sale of the shares will be
made only in such manner as is permitted by the Committee and that he will
notify the Company when he makes any disposition of the shares whether by sale,
gift or otherwise. The Company shall use its best efforts to effect any such
compliance and listing, and the optionee shall take any action reasonably
requested by the Company in such connection. An optionee shall have the rights
of a shareholder only as to shares actually issued to him under the Plan.
9. Nontransferability of Options. No option may be transferred by the
optionee otherwise than by will or by the laws of descent and distribution, and
during the optionee's lifetime the option may be exercised only by him. More
particularly, but without limiting the generality of the foregoing, an option
may not be assigned, transferred (except as provided in the preceding sentence),
pledged, or hypothecated in any way (whether by operation of law or otherwise),
and will not be subject to execution, attachment or similar process. Any
attempted assignment, transfer, pledge, hypothecation or other disposition of
any
10
<PAGE> 11
option contrary to the provisions of the Plan, and any levy of any attachment or
similar process upon an option will be null and void and without effect, and the
Committee may, in its discretion, upon the happening of any such event,
terminate an option forthwith.
10. Changes in Stock. In the event of a stock dividend, stock split or
other change in corporate structure or capitalization affecting the Stock, the
number and kind of shares of Stock on which options may be granted hereunder,
the number and kind of shares of Stock remaining subject to each option
outstanding at the time of such change and the option price shall be
appropriately adjusted by the Committee, whose determination shall be binding on
all parties concerned. Subject to any required action by the shareholders, if Il
Fornaio shall be the surviving corporation in any merger or consolidation (other
than a merger or consolidation in which Il Fornaio survives but its outstanding
shares are converted into securities of another corporation or exchanged for
other consideration), any option granted hereunder shall pertain and apply to
the securities which a holder of the number of shares of Stock then subject to
the option would have been entitled to receive. A dissolution or liquidation of
Il Fornaio or a merger or consolidation in which Il Fornaio is not the surviving
corporation or its outstanding shares are so converted or exchanged shall cause
every option
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<PAGE> 12
hereunder to terminate; provided, however, that at least twenty (20) days prior
to the effective date of any such dissolution or liquidation (or, if earlier,
any related sale of all or substantially all of the assets of Il Fornaio) or of
any such merger or consolidation, the Committee shall either make all options
outstanding hereunder immediately exercisable or arrange that the successor or
surviving corporation, if any, grant replacement options.
11. Employment Rights. Neither the adoption of the Plan nor the grant of
any option under it shall confer upon any employee of the Company any right to
continued employment with the Company, nor shall either interfere in any way
with the right of the Company to terminate the employment of any of its
employees at any time, with or without cause. Neither the existence of the Plan
nor the grant of any option hereunder shall be taken into account in determining
any damages to which an employee may be entitled upon termination of his
employment.
12. Miscellaneous.
(a) Other Awards and Compensation. The Plan shall not restrict the
authority of the Board of Directors of the Company, acting directly or by
authorization to any committee, for proper corporate purposes, to grant or
assume stock options or replacements or substitutions therefor, other than under
the Plan,
12
<PAGE> 13
whether in connection with any acquisition or otherwise, and with respect to any
employee or other person, or to award bonuses or other benefits to optionees
under the Plan in connection with exercises under the Plan or otherwise or to
maintain or establish other compensation or benefit plans or practices.
(b) Statutory References, etc. References to the provisions of
statutes and regulations in the Plan shall be deemed to refer to such provisions
as they may from time to time be in effect, unless the context suggests
otherwise.
(c) Information to Optionees. Each optionee, for so long as he has
an option or options outstanding under the Plan, shall receive, as and when such
financial statements become available and upon request, the Company's annual
statement of profit and loss and its balance sheet and such other financial or
other information of the Company as shall be distributed from time to time to
shareholders of the Company generally.
13
<PAGE> 14
STOCK OPTION AGREEMENT UNDER 1988
STOCK OPTION PLAN OF
IL FORNAIO (AMERICA) CORPORATION
THIS STOCK OPTION AGREEMENT, dated as of _____________, is entered
into between IL FORNAIO (AMERICA) CORPORATION, a California corporation (the
"Company"), and ________________ ("Employee"), an employee of the Company, under
the 1988 Stock Option Plan of the Company (the "Plan"), a copy of which is
attached hereto; however, if Employee fails to deliver an executed copy of this
Agreement within 30 days after the Employee receives it, this Agreement may be
dated as of the date of receipt of the Agreement by the Company.
1. In consideration of services to be rendered, the Company hereby
grants Employee an option under the Plan to purchase _____ shares of the Common
Stock of the Company, upon the following terms and conditions:
(a) This Option is granted under and pursuant to the Plan and is
subject to all of its provisions.
(b) The option price shall be $ per share of Common Stock.
(c) This Option is not exercisable after the expiration of five (5)
years from the date of this Agreement.
(d) This Option becomes exercisable, with respect to the Shares
covered by it, in installments as follows:
Number of Shares Date Exercisable
---------------- ---------------
(e) This Option is not transferable otherwise than by will, or the
laws of descent and distribution, and shall be exercisable
during the lifetime of Employee only by Employee.
2. Employee hereby acknowledges that he or she has received and read a
copy of the Plan and understands and agrees to its provisions.
3. The Company has made no warranties or representations to Employee
with respect to the income tax consequences of the
<PAGE> 15
transactions contemplated by this Agreement, and Employee is in no manner
relying on the Company or the Company's representatives for an assessment of
such tax consequences.
4. It shall be a condition precedent to the Company's obligation to
issue and deliver any shares of Common Stock hereunder that, at the time
Employee elects to exercise his or her option, on and as of such date he or she
is able in good faith to make, and does make, any or all of the representations
and warranties set forth in attached Exhibit A hereto as the Company may
require. Employee shall deliver written confirmation thereof substantially as
set forth in Exhibit A.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
IL FORNAIO (AMERICA) CORPORATION
By: _________________________________
Laurence B. Mindel, President
EMPLOYEE
________________________________________
Address: _______________________________
_______________________________
_______________________________
Attachment: Exhibit A: Investment Letter
Exhibit B: The Plan
<PAGE> 16
EXHIBIT A
IL FORNAIO (AMERICA) CORPORATION
1000 Sansome Street, Suite 200
San Francisco, CA 94111
Gentlemen:
I propose to exercise all or a portion of an option to purchase from IL
FORNAIO (AMERICA) CORPORATION, a California corporation (the "Company"),
pursuant to its 1988 Stock Option Plan (the "Plan"), ______ shares of its Common
Stock (such shares being hereinafter referred to as the "Shares") for an
aggregate purchase price of $_______.
I understand that the Shares are not registered under the Securities Act
of 1933, as amended (the "Act") , and are to be sold and issued pursuant to the
exemptions, among others, provided by Sections 3(a)(11), 3(b) and 4(2) of the
Act and Rules 147, 504 and 506 of the Securities and Exchange Commission
("S.E.C.") promulgated thereunder, relating respectively to intrastate
offerings, to certain small offerings and to issuer transactions not involving
any public offering.
It is also understood that the Shares are issued pursuant to a permit
granted under Section 25113 of the California Corporations Code, but subject to
restrictions on transfer as further described in Paragraph 4 below.
At the request of the Company, and as a condition precedent to its
obligation to issue and deliver any Shares under the Plan, I warrant and
represent as follows:
1. I am acquiring the Shares for investment, for my own account and not
with a view to any sale or distribution or with any intention of disposing of
the same or any interest therein.
2. I understand that the Shares must be held indefinitely unless
subsequently registered under the Act and unless the prior written consent of
the California Commissioner of Corporations ("the Commissioner") is obtained, or
unless an exemption from such registration and consent is applicable to any
subsequent transfer. I hereby agree that the Shares will not be sold without
registration under the Act and the consent of the Commissioner, or exemption
therefrom. I understand that the Company has no present plans for registration
of the Shares and
<PAGE> 17
that it has no obligation to register the Shares for any future sale of them by
me.
3. I am aware of the terms of Rule 144 adopted by the Securities and
Exchange Commission under the Act, relating to the conditions under which
"restricted securities" (which term may include the Shares) may be transferred
without registration under the Act. I understand that Rule 144 is not applicable
or available with respect to the Shares, and further that Rule 144 may not be
available for future transfers because information meeting the requirements of
Rule 144(c) is not publicly disseminated by the Company; and that the Company
has no obligation to me ever to disseminate information so as to make Rule 144
available for future transfers of the Shares.
4. I understand that the Shares are subject to restrictions on transfer
in the legends to be imprinted on the certificates evidencing the Shares. Such
legends will include the legend set forth in Rule 260.141.11 of the
Commissioner, as well as a "federal" legend (substantially in the form
reproduced below):
(a) California Commissioner's Legend:
"IT IS UNLAWFUL TO CONSUMMATE A SALE OR TRANSFER OF THIS SECURITY, OR
ANY INTEREST THEREIN, OR TO RECEIVE ANY CONSIDERATION THEREFOR,
WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMMISSIONER OF CORPORATIONS
OF THE STATE OF CALIFORNIA, EXCEPT AS PERMITTED IN THE COMMISSIONER'S
RULES."
(b) Federal Legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND ANY SALE, TRANSFER, PLEDGE OR
OTHER DISPOSITION THEREOF MAY BE MADE ONLY (i) IN A TRANSACTION
REGISTERED UNDER SAID ACT OR (ii) IF AN EXEMPTION FROM REGISTRATION
UNDER SAID ACT IS AVAILABLE AND THE COMPANY HAS RECEIVED AN OPINION
OF COUNSEL TO SUCH EFFECT REASONABLY SATISFACTORY TO IT. FURTHERMORE,
SUCH SECURITIES MAY BE TRANSFERRED ONLY TO BONA FIDE RESIDENTS OF THE
STATE OF CALIFORNIA UPON PRESENTATION TO THE ISSUER OF SUCH DOCUMENTS
AS THE ISSUER MAY REASONABLY REQUIRE TO SUBSTANTIATE SUCH RESIDENCE."
5. I represent that my principal residence at all times from the initial
offer of the Shares to me through the actual consummation of the transaction has
been and will be within the
<PAGE> 18
State of California. I understand that, in order for the Company to comply with
Rule 147 mentioned above, resales or transfers of any of the Shares, for a
period of nine months from the date of the last sale by the Company of any of
its securities which are the subject of the same offering as the Shares which I
propose to purchase, can be made only to persons resident within the State of
California. I understand that such nine-month period may not commence until some
time after my individual purchase of the Shares. I understand that, in addition
to the restrictions on transfer and the legends referred to in other paragraphs
of this letter, the Company may require that any transferee of the Shares submit
an acceptable representation as to his or its residence within the State of
California.
6. I am financially capable of undertaking the risks inherent in the
proposed purchase of the Shares; I have evaluated all information about the
Company I deem material to the formulation of an investment decision; and I do
not desire any further information or data concerning the Company.
7. I agree that the Company may note upon its stock transfer records a
"stop transfer order" with respect to the Shares in order to enforce the
restrictions on transfer described above. I understand and agree that any and
all share certificates issued by the Company to me in connection with the
proposed purchase may bear the restrictive legends described above. I further
agree that the Company shall not be liable for any refusal to transfer the
Shares upon the books of the Company, except in compliance with the terms and
conditions of such restrictions.
8. I agree to indemnify and save and hold harmless the Company, its
successors and assigns, and their officers, directors and controlling persons,
if any, against any loss, claim, damage, liability, cost and expense arising out
of a breach by me of any of my representations, warranties and covenants
contained in this letter, whether under the Securities Act of 1933, as the same
may be amended from time to time, the securities laws of any state, or
otherwise. Finally, I agree that the terms and conditions of this letter shall
also bind my heirs, assigns, and legal representatives.
Very truly yours,
Dated: __________________, 19
