<PAGE>
Filed with the Securities and Exchange Commission on August 7, 1996
--------
Securities Act Registration No. 33-_____________
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
------------------
INTERNATIONAL YOGURT COMPANY
(Exact name of registrant as specified in its charter)
OREGON 91-0989395
(State of incorporation) (I.R.S. Employer Identification No.)
5858 N.E. 87TH AVENUE, PORTLAND, OREGON 97220
(Address of principal executive offices) (Zip Code)
1994 COMBINED INCENTIVE AND NON-QUALIFIED STOCK OPTION PLAN
(Full title of the plan)
-------------------
JOHN N. HANNA, CHIEF EXECUTIVE OFFICER
5858 N.E. 87TH AVENUE
PORTLAND, OREGON 97220
(503) 256-3754
(Name, address and telephone number
of agent for service)
---------------
Copies to:
CURT B. GLEAVES
Foster Pepper & Shefelman
101 S.W. Main St., 15th Fl.
Portland, Oregon 97204
---------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------
Number Proposed Proposed
of Maximum Maximum
Shares Offering Aggregate Amount of
Title of Securities Being Price Per Offering Registration
Being Registered Registered(1) Share Price Fee
- ----------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 61,000 $2.125 $129,625 $44.70
Common Stock 30,000 $8.125 $243,750 $84.05
Common Stock 109,000 $2.00(2) $218,000 $75.17
- ----------------------------------------------------------------------------------
</TABLE>
(1) The shares of Common Stock represent the number of shares with respect to
which options have been granted or may be granted under the 1994 Combined
Incentive and Non-Qualified Stock Option Plan. In addition, pursuant to
Rule 416, this Registration Statement also covers an indeterminate number
of additional shares which may be issuable as a result of the anti-dilution
provisions of Plan.
(2) The maximum offering price for the shares cannot presently be determined as
the offering price is established at the time options are granted.
Pursuant to Rule 457(h), the offering price is estimated based on the
average of the high and low prices reported for the Common Stock on NASDAQ
on August 6, 1996.
<PAGE>
EXPLANATORY NOTE
In accordance with the instruction Note to Part I of Form S-8, the
information specified in Part I of Form S-8 has been omitted from this
Registration Statement on Form S-8 for offers and sales of common stock of
International Yogurt Company (the "Company"), pursuant to the Company's 1994
Combined Incentive and Non-Qualified Stock Option Plan (the "Plan").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by International Yogurt Company (the
"Company") with the Securities and Exchange Commission are incorporated by
reference in this registration statement:
1. The Company's annual report on Form 10-K for the year ended October
31, 1995;
2. The Company's definitive proxy statement filed pursuant to Section 14
of the Securities Exchange Act of 1934 in connection with the annual meeting of
shareholders on March 28, 1996;
3. All documents filed by the Company subsequent to those listed above
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act
of 1934, as amended, prior to the filing of a post-effective amendment which
indicates that all securities offered hereby 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 hereof from the date of filing of such
documents.
The securities being registered are shares of the Company's common stock
("Common Stock") which class of securities is registered under Section 12 of the
Securities Exchange Act of 1934, as amended.
The authorized capital stock of the Company consists of 35,000,000 shares
divided into two classes as follows:
a. 30,000,000 shares of common stock; and
b. 5,000,000 shares of preferred stock. The Board of Directors of
the Company is expressly authorized to designate, from time to time by
resolution, one or more series of preferred stock and to fix the relative
rights and preferences of that stock. As of January 31, 1996, there were
no designated series of preferred stock.
II-1
<PAGE>
As of August 6, 1996, there were 2,192,043 shares of the Company's Common
Stock outstanding. The Company maintains a non-qualified stock option plan for
employees, pursuant to which 400,000 shares of the Company's Common Stock are
reserved for issuance upon exercise of options. In addition, the Company
maintains a stock option plan for non-employee directors, pursuant to which
150,000 shares of the Company's Common Stock are reserved for issuance upon
exercise of options. Further, in 1994, the Company adopted a Combined Incentive
and Non-Qualified Stock Option Plan, pursuant to which 200,000 shares of the
Company's Common Stock are reserved for issuance upon exercise of options. As
of August 6, 1996, options to acquire 323,800 shares of Common Stock were
outstanding as follows:
<TABLE>
<CAPTION>
Price Number
Expiration Date Per Share of Shares
--------------- --------- ---------
<S> <C> <C> <C>
Employee Stock Option Plan 12/31/97 $ 2.50 25,000
04/30/98 $ 3.37 73,800
08/30/98 $ 4.44 32,500
08/31/99 $ 4.00 41,500
Non-employee Stock Option Plan 10/01/97 $ 1.54 10,000
10/01/98 $ 8.00 20,000
10/01/99 $ 3.75 30,000
Combined Stock Option Plan 12/31/98 $ 8.125 30,000
04/30/00 $ 2.125 61,000
</TABLE>
Each share of the Company's Common Stock has the same rights, privileges,
and preferences as each other share, and there are no conversion or redemption
rights applicable to those shares. Shareholders do not have any preemptive
rights to acquire additional shares. Each share of Common Stock is entitled to
one vote. Shareholders do not have a right to cumulate votes for directors. In
the event of liquidation, each Common Stock shareholder is entitled to share
ratably in the assets of the Company legally available for distribution after
satisfaction of or reservation for the claims of all creditors of the Company
and after any required payments to holders of any outstanding preferred stock.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under the Oregon Business Corporation Act (Oregon Revised Statutes ("ORS")
Sections 60.387 to 60.414), applicable to the Company, a person who is made a
party to a proceeding because such person is or was an officer or director of a
corporation (an "Indemnitee") may be indemnified by the corporation against
liability incurred by the Indemnitee in connection with the proceeding if (i)
the Indemnitee's conduct was in good faith and in a manner he or she reasonably
believed was in the
II-2
<PAGE>
corporation's best interest or at least not opposed to its best interests and
(ii) if the proceeding was a criminal proceeding, the Indemnitee had no
reasonable cause to believe his or her conduct was unlawful. Indemnification is
not permitted if the Indemnitee was adjudged liable to the corporation in a
proceeding by or in the right of the corporation, and if the Indemnitee was
adjudged liable on the basis that he or she improperly received a personal
benefit. Unless the articles of the corporation provide otherwise, such
indemnification is mandatory if the Indemnitee is wholly successful on the
merits or otherwise, or if ordered by a court of competent jurisdiction.
The Company's Articles of Incorporation (the "Articles") provide that the
company will indemnify its directors and officers, to the fullest extent
permissible under the Oregon Business Corporation Act against all expense
liability and loss (including attorney fees) incurred or suffered by reason of
service as a director or officer of the company or is or was serving at the
request of the company as a director, officer, partner, trustee, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits required by Item 601 of Regulation S-K being filed herewith or
incorporated herein by reference are as follows:
EXHIBIT
4.1 Articles of Incorporation of International Yogurt
Company and all amendments thereto. Incorporated by reference to
Exhibit 3.1 of the Registrant's Annual Report on Form 10-K
for the year ended October 31, 1994
4.2 Bylaws of International Yogurt Company as restated.
Incorporated by reference to Exhibit 3.2 of the Registrant's
Annual Report on Form 10-K for the year ended October 31, 1994
4.3 International Yogurt Company 1994 Combined Incentive and
Non-Qualified Stock Option Plan
4.4 Form of Incentive Stock Option Agreement
4.5 Form of Non-Qualified Stock Option Agreement
5.1 Opinion of Foster Pepper & Shefelman
23.1 Consent of Grant Thornton LLP
23.2 Consent of Foster Pepper & Shefelman
(Included in Exhibit 5.1)
II-3
<PAGE>
ITEM 9. UNDERTAKINGS.
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:
(1) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(2) 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;
(3) 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 and 2 do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(B) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(C) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(D) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 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.
(E) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant, pursuant to the provisions described in Item 6, 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 Act and is, therefore, unenforceable. In the event that the
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 Act and
will be governed by the final adjudication of such issue. The foregoing
undertaking shall not apply to indemnification which is covered by insurance.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Portland, State of Oregon, on the 6th day of August,
1996.
INTERNATIONAL YOGURT COMPANY
By: /s/ John N. Hanna
--------------------------------------
John N. Hanna, Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
By: /s/ John N. Hanna Date: August 6, 1996
__________________________________ ___________________
John N. Hanna
Chief Executive Officer and
Chairman of the Board of Directors
By: ___________________________________ Date:___________________
David J. Hanna
Director
By: /s/ James S. Hanna Date: August 6, 1996
____________________________________ ___________________
James S. Hanna
Director
By: /s/ Carl G. Behnke Date: August 6, 1996
____________________________________ ___________________
Carl G. Behnke
Director
By: /s/ William J. Rush Date: August 6, 1996
_____________________________________ ___________________
William J. Rush
Director
By: /s/ R.H. Olson Date: August 6, 1996
_____________________________________ ___________________
R. H. Olson
Controller (Chief Accounting
and Financial Officer)
<PAGE>
EXHIBIT INDEX
EXHIBIT
- -------
4.1 Articles of Incorporation of International Yogurt
Company and all amendments thereto. Incorporated by reference to
Exhibit 3.1 of the Registrant's Annual Report on Form 10-K
for the year ended October 31, 1994
4.2 Bylaws of International Yogurt Company as restated.
Incorporated by reference to Exhibit 3.2 of the Registrant's
Annual Report on Form 10-K for the year ended October 31, 1994
4.3 International Yogurt Company 1994 Combined Incentive and
Non-Qualified Stock Option Plan
4.4 Form of Incentive Stock Option Agreement
4.5 Form of Non-Qualified Stock Option Agreement
5.1 Opinion of Foster Pepper & Shefelman
23.1 Consent of Grant Thornton LLP
23.2 Consent of Foster Pepper & Shefelman
(Included in Exhibit 5.1)
<PAGE>
EXHIBIT 4.3
INTERNATIONAL YOGURT COMPANY
1994 COMBINED INCENTIVE AND
NON-QUALIFIED STOCK OPTION PLAN
ARTICLE I
PURPOSE OF THE PLAN
The purpose of this Combined Incentive and Non-Qualified Stock Option Plan
is to advance the interests of INTERNATIONAL YOGURT COMPANY, an Oregon business
corporation (the "Company") and its shareholders by enabling the Company to
attract and retain the services of people with training, experience and ability
and to provide additional incentive to key employees and directors by giving
them an opportunity to participate in the ownership of the Company.
ARTICLE II
DEFINITIONS
As used herein, the following definitions will apply:
(a) "Board of Directors" means the Board of Directors of the Company.
(b) "Committee" means the Committee appointed as specified in Article V of
this Plan, or the Board of Directors if no such Committee has been
appointed.
(c) "Common Stock" means the Common Stock of the Company.
(d) "Company" means International Yogurt Company, an Oregon business
corporation.
(e) "Employee" means any person employed by the Company or a subsidiary.
(f) "Option" means an option to purchase Shares of Common Stock of the
Company granted under this Plan pursuant to a written option
agreement.
(g) "Optionee" means any individual who is granted an Option under this
Plan.
(h) "Parent" means any corporation in an unbroken chain of corporations
ending with the Company if, at the time of the granting of an Option,
each of the corporations other than the Company owns stock possessing
50 percent or more of the total combined voting power of all classes
of stock in one of the other corporations in such chain.
1
<PAGE>
(i) "Plan" means this 1994 Combined Incentive and Non-Qualified Stock
Option Plan of International Yogurt Company.
(j) "Share" means a share of the Common Stock.
(k) "Subsidiary" means any corporation in an unbroken chain of
corporations beginning with the Company if, at the time of the
granting of an Option, each of the corporations other than the last
corporation in the unbroken chain owns stock possessing 50 percent or
more of the total combined voting power of all classes of stock in one
of the other corporations in such chain.
ARTICLE III
STOCK SUBJECT TO THE PLAN
Except as provided in Section 9.1, the total number of Shares of Common
Stock covered by all Options granted under this Plan will not exceed 200,000
Shares, which Shares may be in whole or in part, as the Board may from time to
time determine, authorized but unissued Shares or issued Shares which have been
reacquired by the Company. The Company will at all times reserve for issuance
the number of Shares which may be issued upon the exercise of Options granted or
which may be granted under this Plan. If an Option expires or terminates for
any reason without having been exercised in full, unless this Plan itself has
been terminated, the unpurchased Shares covered thereby will be added to the
Shares otherwise available for Options which may be granted in accordance with
the terms of this Plan. If an Option is exercised in part or in full, the
number of Shares covered by this Plan and reserved for issuance under this Plan
will automatically be reduced by the number of Shares purchased pursuant to the
exercise of such Option.
ARTICLE IV
DURATION OF THE PLAN
This Plan will be effective as of the date on which it is approved by both
the Board of Directors, subject to approval by the shareholders of the Company
as provided in Article XIII of this Plan. This Plan will continue in effect
until Options have been exercised with respect to all of the Shares reserved for
this Plan (subject to any adjustments under Section 9.1 of this Plan), provided,
however, that unless sooner terminated by action of the Board of Directors, this
Plan will terminate, and no Option may be granted hereunder ten years from the
effective date of this Plan. The Board of Directors will have the right to
suspend or terminate this Plan at any time except with respect to any Options
then outstanding under this Plan.
ARTICLE V
ADMINISTRATION OF THE PLAN
2
<PAGE>
The Plan will be administered by the Committee appointed by the Board of
Directors and consisting of not less than two directors. The Board of Directors
may at any time assume the responsibilities of and act as the Committee if the
Board of Directors so elects. The Board of Directors may from time to time
appoint members of the Committee in substitution for, or in addition to, members
previously appointed, and may fill vacancies, however caused, in the Committee.
The Committee may select one of its members as its chairman and will hold its
meetings at such times and places as it may deem advisable. A majority of the
members of the Committee will constitute a quorum. All actions of the Committee
will be taken by a majority of its members. Any action may be taken by a
written instrument signed by all Committee members, and all actions so taken
will be fully as effective as if it has been taken by a vote of a majority of
the members at a meeting duly called and held.
Subject to the provisions of this Plan and any additional terms or
conditions imposed by the Board, the Committee will administer the Plan and the
Options granted thereunder and will have the authority, in its discretion, to
determine and designate from time to time the persons to whom Options will be
granted, the number of Shares to be covered by each Option, the Option exercise
price, the duration of each such Option, and other terms and conditions of each
Option which need not be identical. Subject to the provisions contained in this
Plan, the Committee may from time to time adopt rules and regulations relating
to the administration of the Plan. The interpretation and construction by the
Committee of the provisions of the Plan or any option agreement will be final
and conclusive, subject to review by the full Board of Directors. The Committee
may correct any defect, supply any omission or reconcile any inconsistency in
this Plan or in any option agreement in the manner and to the extent it deems
appropriate.
No director who within the past twelve months has been granted a stock
option under this Plan or any other plan of the Company or any of its affiliates
(except for participation in a "formula plan" within the meaning of the rules
and regulations as such may be adopted from time to time by the Securities and
Exchange Commission in connection with Section 16 of the Securities Exchange Act
of 1934) will be eligible to serve on the Committee.
ARTICLE VI
ELIGIBILITY
Options may be granted to key Employees (including Employees who are
directors) and directors of the Company or its Subsidiaries who, in the judgment
of the Committee, have performed or will perform services of special importance
to the Company in the management, operation and development of its business or
the business of one or more of its Subsidiaries. Options may also be granted
under this Plan to any other person who provides services or other value to the
Company. Notwithstanding the foregoing, if the Company has a non-discretionary
stock option plan in effect for its directors who are not Employees of the
Company or any of its Subsidiaries, any director who is not an Employee of the
Company or any of its Subsidiaries will not be eligible to receive Options under
this Plan if that director is a member of the Committee.
3
<PAGE>
ARTICLE VII
OPTION TERMS AND CONDITIONS
Options granted under this Plan will be evidenced by written option
agreements the form of which will have been approved from time to time by the
Committee. The option agreements must be consistent with this Plan and will
include in substance the following terms and conditions as appropriate:
7.1 Each Option will specify as to whether the Option is intended to
qualify as an incentive stock option within the meaning of Section 422A of the
Internal Revenue Code of 1986, as amended, ("Incentive Stock Options"); provided
that Incentive Stock Options will only be granted to Employees. All Options not
specifically designated as Incentive Stock Options will be presumed to have been
intended to not qualify as such ("Non-Qualified Stock Options").
7.2 Each Option will specify the number of Shares to which it
pertains.
7.3 Each Option will specify the purchase price of the Shares covered
by the Option as determined by the Committee in its sole discretion ("Exercise
Price"); provided that no Incentive Stock Option will have an Exercise Price
less than 100 percent of the fair market value of a Share at the time the Option
is granted and provided further that no Incentive Stock Option will have an
Exercise Price less than 110 percent of the fair market value of a Share at the
time the Option is granted if such Incentive Stock Option is granted to a person
who owns stock possessing more than ten percent (10%) of the total combined
voting power of all classes of stock of the Company or any Parent or Subsidiary.
7.4 Each Option will specify the term or duration of the Option which
will not exceed five years from the date of the grant of such Option. Partial
exercise will be permitted from time to time.
7.5 No Option may be transferred by the Optionee other than by will
or the laws of descent and distribution. Options may be exercised only by the
Optionee except as provided in Section 7.8.
7.6 Each Option will provide that in the event that an Optionee who
is an Employee ceases to be an Employee for any reason other than the death or
disability of the Optionee, any Option or unexercised portion thereof which was
otherwise exercisable on the date of termination of employment will terminate
unless exercised within a period of three months from the date on which the
Optionee ceased to be an Employee, provided that this provision will not extend
the time within which the Option may be exercised beyond the limits described in
Section 7.4 of this Plan.
7.7 Each Option will provide that in the event that an Optionee who
is an Employee ceases to be an Employee by reason of the Optionee becoming
disabled, any Option or unexercised portion thereof which was otherwise
exercisable on the date of termination of employment will terminate unless
exercised within a period of one year from the date on which the Optionee ceased
to be an Employee, provided that this provision will not extend the time within
which the Option may be exercised beyond the limits described in Section 7.4 of
4
<PAGE>
this Plan. Disability will be determined in accordance with Section 105(d)(4)
of the Internal Revenue Code of 1986, as amended.
7.8 Each Option will provide that, in the event an Optionee dies
while an Employee, the Option may be exercised, to the extent not previously
exercised and subject to any vesting provisions, at any time within one year
after the Optionee's death by the estate of the Optionee or by any person or
persons who may acquire the Option directly from the Optionee by bequest or
inheritance, provided that this provision will not extend the time within which
the Option may be exercised beyond the limits described in Section 7.4 of the
Plan.
7.9 To the extent that the aggregate fair market values (determined
at the time of grant) of Shares with respect to which an Option designated as an
Incentive Stock Option is exercisable for the first time by the Optionee during
any calendar year under this Plan and under all other incentive stock option
plans (within the meaning of Section 422A of the Internal Revenue Code of 1986,
as amended) of the Company or any Parent or Subsidiary exceeds $100,000 plus any
unused limit carryover available in such year, such Options will be treated as
Non-Qualified Stock Options notwithstanding any designation to the contrary.
7.10 Each Option will specify that the Option may not be exercised
prior to the later of six months from the date that this Plan is approved by the
shareholders of the Company or six months from the date such Option is granted
and thereafter may be exercised from time to time over the period stated therein
in such amounts and at such times as may be prescribed by the Committee in its
discretion, but in all such cases if the Optionee does not exercise in any year
the full number of Shares to which the Optionee is entitled, the Optionee's
rights will be cumulative and the Optionee may acquire those Shares in any
subsequent year during the term of the Option.
7.11 Each Option will specify that the Optionee, by accepting the
Option, agrees that whenever the Company undertakes a firmly underwritten public
offering of its securities and if requested by the managing underwriter in such
offering, the Optionee will enter into an agreement not to sell or dispose of
any securities of the Company owned or controlled by the Optionee provided that
such restriction will not extend beyond 12 months from the effective date of the
registration statement filed in connection with such offering.
ARTICLE VIII
EXERCISE OF OPTIONS TO PURCHASE SHARES
8.1 Shares may be purchased or acquired pursuant to an Option granted
under this Plan only upon receipt by the Company of written notice signed and
delivered by the Optionee (or, in the case of exercise after death of the
Optionee, by the executor, administrator, heir or legatee of the Optionee, as
the case may be) directed to the President of the Company at the principal
business office of the Company. Such notice will state the number of Shares
being purchased, specify the method of payment of the exercise price for the
Shares being purchased, and, unless in the opinion of counsel for the Company
such a representation is not required in order to comply with the Securities Act
of 1933, as amended, contain a representation that it is the Optionee's then
present intention to acquire the Shares
5
<PAGE>
issuable upon exercise of the Option for investment and not with a view to, or
in connection with, any distribution thereof.
8.2 On or before the completion of the purchase of Shares pursuant to
the exercise of an Option, the Optionee must have paid the Company the full
purchase price of said Shares by check or, if allowed by either the terms of the
Option or by actions of the Committee at the time of such exercise, by surrender
of other previously acquired securities of the Company. If the exercise price
is being paid in whole or in part by the delivery of Common Stock or other
securities of the Company, the notice must be accompanied by delivery of the
certificates or instruments representing such other securities duly endorsed for
transfer. Any Common Stock or other securities of the Company will be valued at
the publicly reported price for the last sale on the last business day preceding
the day the Company receives such notice, or, if there are no publicly reported
prices of such other Common Stock or securities of the Company, at the fair
market value of such other Common Stock or securities of the Company, as
determined in good faith by the Board of Directors.
8.3 No Shares will be issued until full payment therefor has been
made, and an exercising Optionee will have none of the rights of a shareholder
of the Company as to dividends, voting or otherwise, as to such Shares until a
certificate representing the Shares so acquired is issued to such exercising
Optionee. Each Optionee who has exercised an Option must, upon notification of
the amount due and prior to or concurrently with delivery of the certificate
representing the Shares, pay to the Company amounts necessary to satisfy
applicable federal, state and local withholding tax requirements and, if the
Optionee fails to do so, the Company may withhold such amounts from other
amounts owed by the Company to the Optionee.
8.4 No Shares will be issued with respect to the exercise of any
Option unless the exercise and the issuance of the Shares will comply with all
relevant provisions of law, including, without limitation, any applicable state
securities laws, the Securities Act of 1933, as amended, the Securities Exchange
Act of 1934, as amended, the Internal Revenue Code of 1986, as amended, the
respective rules and regulations promulgated thereunder, and the requirements of
any stock exchange upon which the Shares may then be listed, and will be further
subject to the approval of counsel for the Company with respect to such
compliance. The Company will not be liable to any Optionee or any other person
for failure to issue Shares upon the exercise of an Option where such failure is
due to the inability of the Company to obtain all permits, exemptions or
approvals from regulatory authorities which are deemed by the Company's counsel
to be necessary. The Board may require any action or agreement by an Optionee
as may from time to time be necessary to comply with the federal and state
securities laws. The Company will not be obliged to register Options granted or
Shares purchased under the Plan under any federal or state securities laws.
ARTICLE IX
CHANGES IN CAPITAL STRUCTURE
9.1 Except as provided in Section 9.2, the outstanding Shares are
hereafter increased, decreased, changed into or exchanged for a different number
or kind of Shares or other securities of the Company or of another corporation,
by reason of any reorganization, merger, consolidation, reclassification, stock
split-up, combination of Shares, or dividend
6
<PAGE>
payable in Shares, the Committee will make such adjustment in the number and
kind of Shares or other securities covered by the Options which may be granted
under this Plan as it deems appropriate. In addition, the Committee will at
such time make such adjustment in the number and kind of Shares or other
securities covered by outstanding Options, as well as an adjustment in the
exercise price under each such Option as the Committee deems appropriate. Any
determination by the Committee as to what adjustments may be made, and the
extent thereof, will be final, binding on all parties and conclusive.
9.2 In the event of any dissolution or liquidation of the Company, or
any merger or consolidation with one or more corporations in which the Company
is not the surviving entity, in lieu of any continuing rights under an Option,
the Committee may, in its sole discretion, provide a 30-day period immediately
prior to such event during which the Optionee will have the right to exercise an
Option in whole or in part without any limitations on exercisability.
ARTICLE X
AMENDMENT OF PLAN
The Board of Directors may, at any time and from time to time, modify or
amend this Plan as it deems advisable to qualify Incentive Stock Options granted
under this Plan as "incentive stock options" as defined in Section 422A of the
Internal Revenue Code of 1986, as amended, or to conform with any other changes
in the law while this Plan is in effect or for any other reason, provided,
however, that except as provided in Section 9.1 hereof, no change in an Option
already granted to an Optionee will be made without the written consent of such
Optionee, and provided further, that unless also approved by the unanimous
written consent of the shareholders of the Company, or by a vote of shareholders
owning not less than a majority of all shares entitled to vote and represented
at an annual meeting or a special meeting called for the purpose of such
approval, no amendment or change (a) increasing the total number of Shares which
may be purchased under this Plan; (b) changing the minimum purchase price herein
before specified for Options; (c) increasing the maximum Option period; (d)
materially increasing the benefits to participants under this Plan; or (e)
materially modifying the requirements for eligibility for participation in this
Plan will be effective.
ARTICLE XI
EMPLOYMENT RIGHTS
Nothing in this Plan nor in any Option or right granted pursuant hereto
will confer upon any Optionee any right to be continued in the employment of the
Company or any Subsidiary of the Company, or to limit or affect in any way the
right of the Company, in its sole discretion, (a) to terminate such Optionee's
employment at any time, with or without cause, (b) to change the duties of any
Optionee, or (c) to increase or decrease any Optionee's compensation from the
rate in existence at the time an Option is granted.
7
<PAGE>
ARTICLE XII
ISSUE AND TRANSFER TAXES
The Board of Directors may from time to time require the Company to pay
issuance or transfer taxes on Shares issued pursuant to the exercise of an
Option under this Plan.
ARTICLE XIII
CONDITIONS TO EFFECTIVENESS OF PLAN
This Plan has been approved and adopted by the Board of Directors of the
Company. However, the effectiveness of any Options granted under this Plan will
be contingent upon approval of this Plan by a majority of the Company's
outstanding shares entitled to vote and represented at an annual meeting or at a
special meeting called for the purpose of approving this Plan.
Approved by the Board of Directors of the Company at a Special Meeting held
on January 4, 1994.
DATED as of and approved by the shareholders of the Company: _________, 19.
8
<PAGE>
EXHIBIT 4.4
INTERNATIONAL YOGURT COMPANY
INCENTIVE STOCK OPTION AGREEMENT
INCENTIVE STOCK OPTION
TO PURCHASE UP TO SHARES OF COMMON STOCK
THIS OPTION HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR THE SECURITIES LAWS OF ANY STATE, AND IS BEING OFFERED AND
ISSUED IN RELIANCE UPON EXEMPTIONS FROM REGISTRATION AND MAY NOT
BE SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED
EXCEPT IN COMPLIANCE WITH ALL APPLICABLE FEDERAL AND STATE SECURITIES
LAWS AND AN OPINION OF COUNSEL, OBTAINED AT THE HOLDER'S EXPENSE,
THAT ANY PROPOSED TRANSFER WOULD BE IN COMPLIANCE WITH ALL APPLICABLE
FEDERAL AND STATE SECURITIES LAWS. ANY DOCUMENTS EVIDENCING THIS
SECURITY WILL CONTAIN A SIMILAR LEGEND, NOTATIONS WITH RESPECT
TO THESE RESTRICTIONS WILL BE PLACED ON THE ISSUER'S SECURITIES
RECORDS AND A TRANSFER AGENT, IF ONE IS EVER APPOINTED, WILL BE
INFORMED OF SUCH RESTRICTIONS.
This Agreement is by and between INTERNATIONAL YOGURT COMPANY, an Oregon
corporation (herein the "Company"), and (herein the
"Optionee") and is dated as of , 19 .
R E C I T A L S :
The Company has employed the Optionee and considers it desirable and in
the best interests of the Company and its shareholders that the Optionee be
given an inducement to acquire a proprietary interest in the Company and an
added incentive to promote the success of the Company's business in the form of
an option to purchase shares of Common Stock of the Company. It is intended by
the Company and the Optionee that this Incentive Stock Option WILL qualify as an
incentive stock option within the meaning of Section 422A of the Internal
Revenue Code of 1986, as amended.
AGREEMENT
NOW, THEREFORE, in consideration of the promises, it is agreed as
follows:
1. GRANT OF OPTION. The Company hereby grants to the Optionee the
right, privilege, and option to purchase up to shares, subject
to adjustment as hereinafter set forth in Section 6, of the Company's Common
Stock (without par value) at a price of $ per share, subject to
adjustment as hereinafter set forth in Section 6, (herein the "Option Price"),
in the manner and subject to the conditions hereinafter set forth.
1
<PAGE>
This Incentive Stock Option is granted pursuant to the Company's 1994 Combined
Incentive and Non-Qualified Stock Option Plan dated January 4, 1994 (herein the
"Plan"). The Company agrees that at all times there will be reserved for
issuance upon exercise of the Option such number of shares of its Common Stock
as is be required for such issuance.
2. TIME OF EXERCISE OF INCENTIVE STOCK OPTION. This Incentive Stock
Option may be exercised in whole or in part on or after as
follows, subject to adjustment as hereinafter set forth in Section 6:
Maximum Number
On or After Of Shares
- ---------------------------------------------------------------
, 19
, 19
, 19
, 19
In the event of any dissolution or liquidation of the Company, or any merger or
consolidation with one or more corporations in which the Company is not the
surviving entity, in lieu of any continuing rights under this Incentive Stock
Option, the Committee may, in its sole discretion, provide a 30-day period
immediately prior to such event during which the Optionee will have the right to
exercise this Incentive Stock Option in whole or in part without any of the
foregoing limitations on exercisability.
Notwithstanding the foregoing, this Incentive Stock Option may be
exercised only to the extent not previously exercised and only if this Incentive
Stock Option has not expired pursuant to the provisions of Section 4 hereof or
terminated pursuant to the provisions of Section 5 hereof.
3. METHOD OF EXERCISE. This Incentive Stock Option may be exercised
by written notice signed and delivered by the Optionee (or, in the case of
exercise after death of the Optionee, by the executor, administrator, heir or
legatee of the Optionee, as the case may be) directed to the President of the
Company at the principal business office of the Company stating the number of
shares being purchased, the method of payment of the Option Price for the shares
being purchased and containing the representation required pursuant to
Subsection 7.4 hereof.
3.1 The notice must be accompanied by payment of the Option
Price for the number of shares so purchased either by check or by surrender of
other securities of the Company equal to the Option Price for the number of
shares so purchased. If the Option Price is being paid in whole or in part by
the delivery of other securities of the Company, the notice must be accompanied
by delivery of the certificates or instruments representing such other
securities duly endorsed for transfer. Any other securities of the Company will
be valued at the publicly reported price for the last sale on the last business
day preceding the day the Company receives such notice, or, if there are no
publicly reported prices of such other
2
<PAGE>
securities of the Company, at the fair market value of such other securities of
the Company, as determined in good faith by the Board of Directors of the
Company.
3.2 The Company will make delivery of the shares purchased
within a reasonable time after it receives such notice, provided that if any law
or regulation requires the Company to take any action with respect to the shares
specified in such notice before the issuance thereof, including, without
limitation, actions required for compliance with federal and state securities
laws, then the date of delivery of such shares may be extended for the period
necessary to take such action.
4. EXPIRATION OF INCENTIVE STOCK OPTION. This Incentive Stock
Option, to the extent not previously exercised, will expire upon the close of
business on . To the extent that this Incentive Stock Option has
not have been exercised prior to its expiration, all further rights to purchase
shares pursuant to this Incentive Stock Option will cease and terminate at the
expiration of such period.
5. TERMINATION OF INCENTIVE STOCK OPTION UPON TERMINATION OF
EMPLOYMENT, DEATH AND DISABILITY.
5.1 In the event the employment of the Optionee by the Company
or a subsidiary of the Company terminates by retirement or for any reason other
than because of disability or death as hereinafter provided, this Incentive
Stock Option may be exercised by the Optionee at any time prior to the
expiration date of this Incentive Stock Option or the expiration of three months
after the date of such termination of employment, whichever is the shorter
period, but only if and to the extent the Optionee was entitled to exercise this
Incentive Stock Option at the date of such termination.
5.2 In the event the employment of the Optionee by the Company
or a subsidiary of the Company terminates because of disability of the Optionee
within the meaning of Section 105(d)(4) of the Internal Revenue Code of 1986, as
amended, this Incentive Stock Option may be exercised by the Optionee at any
time prior to the expiration date of this Incentive Stock Option or the
expiration of one year after the date of such termination, whichever is the
shorter period, but only if and to the extent the Optionee was entitled to
exercise this Incentive Stock Option at the date of such termination.
5.3 In the event of the death of the Optionee while in the
employ of the Company or a subsidiary of the Company, this Incentive Stock
Option will be exercisable at any time prior to the expiration date of this
Incentive Stock Option or the expiration of one year after the date of such
death, whichever is the shorter period, but only if and to the extent the
Optionee was entitled to exercise this Incentive Stock Option at the date of the
Optionee's death and only by the person or persons to whom the Optionee's rights
under this Incentive Stock Option may pass by the Optionee's will or by the laws
of descent and distribution of the state or country of the Optionee's domicile
at the time of death.
5.4 To the extent that this Incentive Stock Option has not been
exercised within the limited periods above provided, all further rights to
purchase shares pursuant to this Incentive Stock Option will cease and terminate
at the expiration of such period.
3
<PAGE>
6. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. In the event of
changes in the outstanding Common Stock of the Company by reason of stock
dividends, stock splits, combinations, exchanges of shares, separations, or
reorganizations, the number and class of shares deliverable upon the exercise of
this Incentive Stock Option and the Option Price will be subject to adjustment.
Adjustments under this Section 6 will be made by the committee of the Company's
Board of Directors authorized by the Plan to administer the Plan (herein the
"Committee"), whose determination as to what adjustments will be made, and the
extent thereof, will be final, binding and conclusive. No fractional shares of
stock will be issued under this Incentive Stock Option for any such adjustment.
7. REPRESENTATIONS OF THE OPTIONEE AND RESTRICTIONS ON TRANSFER OF
SECURITIES. Unless expressly waived by the Company at the time of the grant of
this Incentive Stock Option and at the time of any exercise of this Incentive
Stock Option, the undersigned Optionee hereby represents, warrants and covenants
as follows:
7.1 This Incentive Stock Option has been acquired for investment
and not with the view to distribution or resale.
7.2 The undersigned Optionee understands and acknowledges that
this Incentive Stock Option and the Common Stock to be issued upon exercise of
this Incentive Stock Option have not at this time been registered under the
Securities Act of 1933 or the securities laws of certain states, and are being
offered, issued and sold in reliance upon exemptions from registration; and that
this Incentive Stock Option may not be sold, assigned, pledged, hypothecated or
otherwise transferred except in compliance with all applicable federal and state
securities laws and delivery to the Company of an opinion from legal counsel (at
the expense of the transferee) satisfactory to the Company and its legal counsel
that such transfer is in compliance with all applicable federal, state and other
securities laws.
7.3 The undersigned Optionee understands and acknowledges that,
in addition to the restrictions on transfer contained in Subsection 7.2 hereof,
this Incentive Stock Option may not be assigned or transferred by the Optionee
except by will or by the laws of descent and distribution of the state or
country of the Optionee's domicile at the time of death.
7.4 The undersigned Optionee understands and acknowledges that
the Company may require as a condition to the Optionee's notice of intention to
exercise this Incentive Stock Option pursuant to Section 3 hereof the delivery
by the Optionee to the Company of a representation that it is Optionee's then
present intention to acquire the shares of Common Stock issuable upon exercise
of this Incentive Stock Option for investment and not for resale or
distribution, unless in the opinion of counsel for the Company, such a
representation is not required to comply with the Securities Act of 1933, as
amended. The undersigned Optionee understands and acknowledges that unless a
registration statement under the Securities Act of 1933, as amended, is in
effect as to the shares purchased upon any exercise of this Incentive Stock
Option, such shares will bear the following legend:
"The securities represented by this Certificate are
restricted securities within the meaning of the Securities
Act of 1933. The securities may not be sold or transferred
in the absence of an effective registration statement under
the Securities Act of 1933 or an opinion of counsel satisfactory
to the issuer
4
<PAGE>
obtained at the expense of the transferee that the sale or
transfer is exempt from registration under such Act."
The undersigned Optionee further understands and acknowledges that the
Company may in its sole discretion file a registration statement under the
Securities Act of 1933 with respect to this Incentive Stock Option or the shares
of Common Stock which can be acquired by exercise of this Incentive Stock Option
but is under no obligation to do so.
7.5 The Optionee by accepting this Incentive Stock Option agrees
that whenever the Company undertakes a firmly underwritten public offering of
its securities and if requested by the managing underwriter in such offering,
the Optionee will enter into an agreement not to sell or dispose of any
securities of the Company owned or controlled by the Optionee provided that such
restriction will not extend beyond 12 months from the effective date of the
registration statement filed in connection with such offering.
7.6 The undersigned Optionee understands that under federal tax
law as it currently exists the exercise of this Incentive Stock Option may
result in alternative minimum taxes and the sale of shares acquired by exercise
of this Incentive Stock Option either within two years of the date that this
Incentive Stock Option is granted to Optionee or within one year of the date on
which this Incentive Stock Option is exercised will result in ordinary income to
the Optionee in an amount equal to the difference between the Option Price and
the fair market value of the shares acquired on the date of such exercise.
8. RIGHTS PRIOR TO EXERCISE OF THIS INCENTIVE STOCK OPTION. The
Optionee will have no rights as a shareholder in the shares covered by this
Incentive Stock Option until payment of the Option Price and the delivery by the
Company to the Optionee of the stock certificate evidencing such shares.
Without limiting the foregoing the Optionee will have no right to receive any
dividends with respect to or to vote or exercise any other right with respect to
any shares until the certificates representing such shares have been delivered
to the Optionee.
9. NO EFFECT ON EMPLOYMENT. Nothing contained in this Incentive
Stock Option will be construed to limit or restrict the rights of the Company to
terminate the employment of the Optionee at any time, with or without cause, to
change the duties of the Optionee, or to increase or decrease the Optionee's
compensation from the rate in existence at the time this Incentive Stock Option
is granted.
10. BINDING EFFECT. This Incentive Stock Option will be binding upon
and inure to the benefit of the parties hereto and their heirs, executors,
administrators, successors, and assigns.
11. NOTICES. All notices to the Optionee or other persons then
entitled to exercise this Incentive Stock Option will be delivered at the
address contained in the records of the Company or such other address as may be
specified in writing by the Optionee or such other person. All notices to the
Company will be delivered at its principal offices.
12. GOVERNING LAW AND INTERPRETATION. This Incentive Stock Option
will be governed by the laws of the State of Oregon as to all matters, including
but not limited to matters of validity, construction, effect and performance,
without giving effect to rules of choice of law. This Incentive Stock Option
hereby incorporates by reference all of the provisions of the Plan, and will in
all respects be interpreted and construed in such manner as to effectuate the
intent
5
<PAGE>
of the Plan. In the event of a conflict between the terms of this Incentive
Stock Option and the Plan, the terms of the Plan will prevail. All matters of
interpretation of the Plan and this Incentive Stock Option, including the terms
and conditions thereof and hereof and the definitions of the words used therein
and herein, will be determined in the sole and final discretion of the Committee
or the Board of Directors.
13. ATTORNEYS FEES. If any suit or action is instituted in
connection with any controversy arising out of this Incentive Stock Option or
the enforcement of any right hereunder, the prevailing party will be entitled to
recover, in addition to costs, such sums as the court may adjudge reasonable as
attorney's fees, including fees on any appeal.
INTERNATIONAL YOGURT COMPANY
By:
-------------------------
John N. Hanna,
Chief Executive Officer
OPTIONEE:
---------------------------------
---------------------------------
<PAGE>
EXHIBIT 4.5
INTERNATIONAL YOGURT COMPANY
NON-QUALIFIED STOCK OPTION AGREEMENT
NON-QUALIFIED STOCK OPTION
TO PURCHASE UP TO SHARES OF COMMON STOCK
THIS OPTION HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 OR THE SECURITIES LAWS OF ANY STATE, AND IS BEING OFFERED
AND ISSUED IN RELIANCE UPON EXEMPTIONS FROM REGISTRATION AND
MAY NOT BE SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED EXCEPT IN COMPLIANCE WITH ALL APPLICABLE FEDERAL
AND STATE SECURITIES LAWS AND AN OPINION OF COUNSEL, OBTAINED
AT THE HOLDER'S EXPENSE, THAT ANY PROPOSED TRANSFER WOULD BE IN
COMPLIANCE WITH ALL APPLICABLE FEDERAL AND STATE SECURITIES
LAWS. ANY DOCUMENTS EVIDENCING THIS SECURITY WILL CONTAIN A
SIMILAR LEGEND, NOTATIONS WITH RESPECT TO THESE RESTRICTIONS
WILL BE PLACED ON THE ISSUER'S SECURITIES RECORDS AND A TRANSFER
AGENT, IF ONE IS EVER APPOINTED, WILL BE INFORMED OF SUCH
RESTRICTIONS.
This Agreement is by and between INTERNATIONAL YOGURT COMPANY, an Oregon
corporation (herein the "Company"), and (herein the
"Optionee") and is dated as of , 19 .
R E C I T A L S :
The Company has employed the Optionee and considers it desirable and in
the best interests of the Company and its shareholders that the Optionee be
given an inducement to acquire a proprietary interest in the Company and an
added incentive to promote the success of the Company's business in the form of
an option to purchase shares of Common Stock of the Company. It is intended by
the Company and the Optionee that this Non-Qualified Stock Option will NOT
qualify as an incentive stock option within the meaning of Section 422A of the
Internal Revenue Code of 1986, as amended.
AGREEMENT
NOW, THEREFORE, in consideration of the promises, it is agreed as
follows:
1. GRANT OF OPTION. The Company hereby grants to the Optionee the
right, privilege, and option to purchase up to shares, subject
to adjustment as hereinafter set forth in Section 6, of the Company's Common
Stock (without par value) at a price of $ per share, subject to
adjustment as hereinafter set forth in Section 6, (herein the "Option Price"),
in the manner and subject to the conditions hereinafter set forth.
1
<PAGE>
This Non-Qualified Stock Option is granted pursuant to the Company's 1994
Combined Incentive and Non-Qualified Stock Option Plan dated January 4, 1994
(herein the "Plan"). The Company agrees that at all times there will be
reserved for issuance upon exercise of the Option such number of shares of its
Common Stock as is required for such issuance.
2. TIME OF EXERCISE OF NON-QUALIFIED STOCK OPTION. This
Non-Qualified Stock Option may be exercised in whole or in part on or after
as follows, subject to adjustment as hereinafter set forth in Section
6:
Maximum Number
On or After Of Shares
----------- --------------
, 19
, 19
, 19
, 19 * (3) *
In the event of any dissolution or liquidation of the Company, or any merger or
consolidation with one or more corporations in which the Company is not the
surviving entity, in lieu of any continuing rights under this Non-Qualified
Stock Option, the Committee may, in its sole discretion, provide a 30-day period
immediately prior to such event during which the Optionee will have the right to
exercise this Non-Qualified Stock Option in whole or in part without any of the
foregoing limitations on exercisability.
Notwithstanding the foregoing, this Non-Qualified Stock Option may be
exercised only to the extent not previously exercised and only if this
Non-Qualified Stock Option has not expired pursuant to the provisions of Section
4 hereof or terminated pursuant to the provisions of Section 5 hereof.
3. METHOD OF EXERCISE. This Non-Qualified Stock Option may be
exercised by written notice signed and delivered by the Optionee (or, in the
case of exercise after death of the Optionee, by the executor, administrator,
heir or legatee of the Optionee, as the case may be) directed to the President
of the Company at the principal business office of the Company stating the
number of shares being purchased, the method of payment of the Option Price for
the shares being purchased and containing the representation required pursuant
to Subsection 7.4 hereof.
3.1 The notice must be accompanied by payment of the Option
Price for the number of shares so purchased either by check or by surrender of
other securities of the Company equal to the Option Price for the number of
shares so purchased. If the Option Price is being paid in whole or in part by
the delivery of other securities of the Company, the notice must be accompanied
by delivery of the certificates or instruments representing such other
securities duly endorsed for transfer. Any other securities of the Company will
be valued at the publicly reported price for the last sale on the last business
day preceding the day the Company receives such notice, or, if there are no
publicly reported prices of such other
2
<PAGE>
securities of the Company, at the fair market value of such other securities of
the Company, as determined in good faith by the Board of Directors of the
Company.
3.2 The Company will make delivery of the shares purchased
within a reasonable time after it receives such notice, provided that if any law
or regulation requires the Company to take any action with respect to the shares
specified in such notice before the issuance thereof, including, without
limitation, actions required for compliance with federal and state securities
laws, then the date of delivery of such shares may be extended for the period
necessary to take such action.
3.3 Prior to delivery of any shares purchased upon exercise of
this Non-Qualified Stock Option, the Company will determine the amount of any
federal, state or local income tax, if any, which is required to be withheld
under applicable law and the Optionee will pay such amount to the Company to the
extent that it has not been previously withheld.
4. EXPIRATION OF NON-QUALIFIED STOCK OPTION. This Non-Qualified
Stock Option, to the extent not previously exercised, will expire upon the close
of business on . To the extent that this Non-Qualified Stock
Option has not been exercised prior to its expiration, all further rights to
purchase shares pursuant to this Non-Qualified Stock Option will cease and
terminate at the expiration of such period.
5. TERMINATION OF NON-QUALIFIED STOCK OPTION UPON TERMINATION OF
EMPLOYMENT, DEATH AND DISABILITY.
5.1 In the event the employment of the Optionee by the Company
or a subsidiary of the Company terminates by retirement or for any reason other
than because of disability or death as hereinafter provided, this Non-Qualified
Stock Option may be exercised by the Optionee at any time prior to the
expiration date of this Non-Qualified Stock Option or the expiration of three
months after the date of such termination of employment, whichever is the
shorter period, but only if and to the extent the Optionee was entitled to
exercise this Non-Qualified Stock Option at the date of such termination.
5.2 In the event the employment of the Optionee by the Company
or a subsidiary of the Company terminates because of disability of the Optionee
within the meaning of Section 105(d)(4) of the Internal Revenue Code of 1986, as
amended, this Non-Qualified Stock Option may be exercised by the Optionee at any
time prior to the expiration date of this Non-Qualified Stock Option or the
expiration of one year after the date of such termination, whichever is the
shorter period, but only if and to the extent the Optionee was entitled to
exercise this Non-Qualified Stock Option at the date of such termination.
5.3 In the event of the death of the Optionee, this
Non-Qualified Stock Option will be exercisable at any time prior to the
expiration date of this Non-Qualified Stock Option or the expiration of one year
after the date of such death, whichever is the shorter period, but only if and
to the extent the Optionee was entitled to exercise this Non-Qualified Stock
Option at the date of the Optionee's death and only by the person or persons to
whom the Optionee's rights under this Non-Qualified Stock Option may pass by the
Optionee's will or by the laws of descent and distribution of the state or
country of the Optionee's domicile at the time of death.
3
<PAGE>
5.4 To the extent that this Non-Qualified Stock Option has not
been exercised within the limited periods above provided, all further rights to
purchase shares pursuant to this Non-Qualified Stock Option will cease and
terminate at the expiration of such period.
6. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. In the event of
changes in the outstanding Common Stock of the Company by reason of stock
dividends, stock splits, combinations, exchanges of shares, separations, or
reorganizations, the number and class of shares deliverable upon the exercise of
this Non-Qualified Stock Option and the Option Price will be subject to
adjustment. Adjustments under this Section 6 will be made by the committee of
the Company's Board of Directors authorized by the Plan to administer the Plan
(herein the "Committee"), whose determination as to what adjustments will be
made, and the extent thereof, will be final, binding and conclusive. No
fractional shares of stock will be issued under this Non-Qualified Stock Option
for any such adjustment.
7. REPRESENTATIONS OF THE OPTIONEE AND RESTRICTIONS ON TRANSFER OF
SECURITIES. Unless expressly waived by the Company at the time of the grant of
this Non-Qualified Stock Option and at the time of any exercise of this Non-
Qualified Stock Option, the undersigned Optionee hereby represents, warrants and
covenants as follows:
7.1 This Non-Qualified Stock Option has been acquired for
investment and not with the view to distribution or resale.
7.2 The undersigned Optionee understands and acknowledges that
this Non-Qualified Stock Option and the Common Stock to be issued upon exercise
of this Non-Qualified Stock Option have not at this time been registered under
the Securities Act of 1933 or the securities laws of certain states, and are
being offered, issued and sold in reliance upon exemptions from registration;
and that this Non-Qualified Stock Option may not be sold, assigned, pledged,
hypothecated or otherwise transferred except in compliance with all applicable
federal and state securities laws and delivery to the Company of an opinion from
legal counsel (at the expense of the transferee) satisfactory to the Company and
its legal counsel that such transfer is in compliance with all applicable
federal, state and other securities laws.
7.3 The undersigned Optionee understands and acknowledges that,
in addition to the restrictions on transfer contained in Subsection 7.2 hereof,
this Non-Qualified Stock Option may not be assigned or transferred by the
Optionee except by will or by the laws of descent and distribution of the state
or country of the Optionee's domicile at the time of death.
7.4 The undersigned Optionee understands and acknowledges that
the Company may require as a condition to the Optionee's notice of intention to
exercise this Non-Qualified Stock Option pursuant to Section 3 hereof the
delivery by the Optionee to the Company of a representation that it is
Optionee's then present intention to acquire the shares of Common Stock issuable
upon exercise of this Non-Qualified Stock Option for investment and not for
resale or distribution, unless in the opinion of counsel for the Company, such a
representation is not required to comply with the Securities Act of 1933, as
amended. The undersigned Optionee understands and acknowledges that unless a
registration statement under the Securities Act of 1933, as amended, is in
effect as to the shares purchased upon any exercise of this Non-Qualified Stock
Option, such shares will bear the following legend:
4
<PAGE>
The securities represented by this Certificate are restricted securities
within the meaning of the Securities Act of 1933. The securities may not be
sold or transferred in the absence of an effective registration statement under
the Securities Act of 1933 or an opinion of counsel satisfactory to the issuer
obtained at the expense of the transferee that the sale or transfer is exempt
from registration under such Act.
The undersigned Optionee further understands and acknowledges that the
Company may in its sole discretion file a registration statement under the
Securities Act of 1933 with respect to this Non-Qualified Stock Option or the
shares of Common Stock which can be acquired by exercise of this Non-Qualified
Stock Option but is under no obligation to do so.
7.5 The Optionee by accepting this Non-Qualified Stock Option
agrees that whenever the Company undertakes a firmly underwritten public
offering of its securities and if requested by the managing underwriter in such
offering, the Optionee will enter into an agreement not to sell or dispose of
any securities of the Company owned or controlled by the Optionee provided that
such restriction will not extend beyond 12 months from the effective date of the
registration statement filed in connection with such offering.
7.6 The undersigned Optionee understands that under federal tax
law as it currently exists the exercise of this Non-Qualified Stock Option will
result in ordinary income to the Optionee in an amount equal to the difference
between the Option Price and the fair market value of the shares acquired on the
date of such exercise without the receipt by the Optionee of any cash or the
ability to resell the shares purchased in order to pay any resulting federal and
state income taxes.
8. RIGHTS PRIOR TO EXERCISE OF THIS NON-QUALIFIED STOCK OPTION. The
Optionee will have no rights as a shareholder in the shares covered by this
Non-Qualified Stock Option until payment of the Option Price and the delivery by
the Company to the Optionee of the stock certificate evidencing such shares.
Without limiting the foregoing the Optionee will have no right to receive any
dividends with respect to or to vote or exercise any other right with respect to
any shares until the certificates representing such shares have been delivered
to the Optionee.
9. NO EFFECT ON EMPLOYMENT. Nothing contained in this Non-Qualified
Stock Option will be construed to limit or restrict the rights of the Company to
terminate the employment of the Optionee at any time, with or without cause, to
change the duties of the Optionee, or to increase or decrease the Optionee's
compensation from the rate in existence at the time this Non-Qualified Stock
Option is granted.
10. BINDING EFFECT. This Non-Qualified Stock Option will be binding
upon and inure to the benefit of the parties hereto and their heirs, executors,
administrators, successors, and assigns.
11. NOTICES. All notices to the Optionee or other persons then
entitled to exercise this Non-Qualified Stock Option will be delivered at the
address contained in the records of the Company or such other address as may be
specified in writing by the Optionee or such other person. All notices to the
Company will be delivered at its principal offices.
12. GOVERNING LAW AND INTERPRETATION. This Non-Qualified Stock
Option will be governed by the laws of the State of Oregon as to all matters,
including but not limited to
5
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matters of validity, construction, effect and performance, without giving effect
to rules of choice of law. This Non-Qualified Stock Option hereby incorporates
by reference all of the provisions of the Plan, and will in all respects be
interpreted and construed in such manner as to effectuate the intent of the
Plan. In the event of a conflict between the terms of this Non-Qualified Stock
Option and the Plan, the terms of the Plan will prevail. All matters of
interpretation of the Plan and this Non-Qualified Stock Option, including the
terms and conditions thereof and hereof and the definitions of the words used
therein and herein, will be determined in the sole and final discretion of the
Committee or the Board of Directors.
13. ATTORNEYS FEES. If any suit or action is instituted in
connection with any controversy arising out of this Non-Qualified Stock Option
or the enforcement of any right hereunder, the prevailing party will be entitled
to recover, in addition to costs, such sums as the court may adjudge reasonable
as attorney's fees, including fees on any appeal.
INTERNATIONAL YOGURT COMPANY
By:
-------------------------
John N. Hanna,
Chief Executive Officer
OPTIONEE:
-------------------
-------------------
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EXHIBIT 5.1
April 10, 1996
Board of Directors
International Yogurt Company
5858 N.E. 87th Avenue
Portland, Oregon 97220
Re: Form S-8 Registration of 1994 Combined Incentive and Non-Qualified
Stock Option Plan
Gentlemen:
This firm is special counsel to International Yogurt Company, an Oregon
corporation, (the "Company") and, in that capacity we have assisted in the
preparation of certain documents relating to the potential issuance of 200,000
shares of the Company common stock ("Shares") in accordance with the Company's
1994 Combined Incentive and Non-Qualified Stock Option Plan (the "Plan"), in
particular the Company's Registration Statement on Form S-8 (the "Registration
Statement").
In the course of our representation as described above, we have examined
the Plan, the Registration Statement as prepared for filing with the Securities
and Exchange Commission and related documents and correspondence. We have
received from officers of the Company having custody thereof and have reviewed
the Articles of Incorporation and Bylaws of the Company, and any amendments to
each of such, and minutes of certain meetings of the Company's Board of
Directors and certain meetings of the Company's shareholders. We have received
from the officers of the Company certificates containing representations
concerning various aspects of the matters covered by this opinion. We have
received such certificates from, and have had conversations with, public
officials in those jurisdictions in which we have deemed it appropriate.
We have relied as to matters of fact upon the above certificates, documents
and investigation. We have assumed without investigation the genuineness of all
signatures and the authenticity of all of the documents submitted to us as
originals and the conformity to original documents submitted to us as certified
or photostatic copies.
Based upon and subject to all of the foregoing, we are of the opinion that:
The Shares have been validly authorized, and when issued in the
manner described in the above mentioned Registration Statement
and when (i)
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Page 8
the applicable provisions of the Securities Act of 1933, as amended,
and such state securities laws as may be applicable have been complied
with, and (ii) the Shares have been delivered against payment therefor
as contemplated by the Registration Statement, the Shares will be
validly issued, fully paid and non-assessable.
This opinion is solely for your information and is not to be quoted in
whole or in part or otherwise referred to, nor is it to be filed with any
governmental agency or other person, without our prior written consent. We
hereby consent to the filing of this opinion with the Securities and Exchange
Commission as an exhibit to the Registration Statement.
Very truly yours,
FOSTER PEPPER & SHEFELMAN
By: /s/ Curt B. Gleaves
_______________________________________________
Curt B. Gleaves
Portland, Oregon
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated January 10, 1996 accompanying the financial
statements of International Yogurt Company appearing in the Annual Report on
Form 10-K for the year ended October 31, 1995 which are incorporated by
reference in this Registration Statement on Form S-8. We consent to
incorporation by reference in the Registration Statement of the aforementioned
report.
/s/ Grant Thornton LLP
Portland, Oregon
April 3, 1996
