<PAGE> 1
As Filed With the Securities and Exchange Commission on September 24, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON. D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
SANTA BARBARA RESTAURANT GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware 33-0403086
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1200 North Harbor Boulevard, Anaheim, CA 92803
(Address of Principal Executive Offices) (Zip Code)
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1998 STOCK INCENTIVE PLAN
1989 NON-QUALIFIED STOCK OPTION PLAN
1995 STOCK OPTION PLAN (TIMBER LODGE)
(Full titles of the plans)
---------------
M'Liss Jones Kane
Senior Vice President and Secretary
Santa Barbara Restaurant Group, Inc.
1200 North Harbor Boulevard, Anaheim, CA 92803
(Name and address of agent for service)
(949) 491-6400
(Telephone number, including area code, of agent for service)
Copies to:
J. Michael Vaughn, Esq.
Stradling Yocca Carlson & Rauth, a Professional Corporation
660 Newport Center Drive, Suite 1600, Newport Beach, California 92660
(949) 725-4000
CALCULATION OF REGISTRATION FEE
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<CAPTION>
===============================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount To Be Offering Aggregate Amount of
To Be Registered Registered(1) Price Per Share(2) Offering Price(2) Registration Fee
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 1,000,000 shares(3) $4.978 $4,256,650 $1,255.71
Common Stock 874,194 shares(4) $8.33 $7,282,036 $2,148.20
Common Stock 261,796 shares(5) $3.79 $ 992,207 $ 292.70
---------
Total: $3,696.61
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</TABLE>
(1) Also registered hereunder are an indeterminate number of shares which may
become issuable pursuant to the anti-dilution adjustment provisions of the
Registrant's 1998 Stock Incentive Plan (the "1998 Plan"), the 1989
Non-Qualified Stock Option Plan (the "1989 Plan"), and the 1995 Stock Option
Plan (the "1995 Plan"). The 1995 Plan was assumed by the Registrant on
September 1, 1998 in connection with its acquisition of Timber Lodge
Steakhouse, Inc.
(2) In accordance with Rule 457(h), and solely for purposes of calculating the
filing fee, the aggregate offering price of (a) 550,000 shares issuable upon
the exercise of outstanding options granted under the 1998 Plan, the 874,194
shares issuable upon the exercise of outstanding options granted under the
1989 Plan and the 261,796 shares issuable upon the exercise of outstanding
options granted under the 1995 Plan are based upon the weighted average
exercise price of such options, which are $4.978, $8.33 and $3.79,
respectively, per share, and (b) the remaining 450,000 shares issuable under
the 1998 Plan is estimated on the basis of the average of the bid and asked
prices reported by the Nasdaq Stock Market for the Common Stock on September
18, 1995, which was $3.375 per share.
(3) Issuable pursuant to the 1998 Plan.
(4) Additional shares issuable pursuant to the 1989 Plan. 100,806 shares of
Common Stock reserved for issuance under the 1989 Plan were registered on a
Registration Statement on Form S-8 filed on May 16, 1994 (Registration No.
33-79042).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Santa Barbara Restaurant Group, Inc.
(the "Registrant" or the "Company") with the Securities and Exchange Commission
(the "Commission") pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), are incorporated by reference in this registration
statement:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1997, as amended;
(b) The Company's Quarterly Reports on Form 10-Q for the quarterly
periods ended March 31, 1998 and June 30, 1998;
(c) The Company's Current Reports on Form 8-K dated February 19, 1998
and September 1, 1998; and
(d) The description of the Registrant's common stock, par value $.08
per share (the "Common Stock"), contained in the Registrant's
Registration Statement filed under Section 12 of the Exchange
Act, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all of such securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of filing of such documents, except as to any
portion of any future annual or quarterly report to stockholders or document
that is not deemed filed under such provisions. For the purposes of this
Registration Statement, any statement in a document incorporated by reference
shall be deemed to be modified or superseded to the extent that a statement
contained in this Registration Statement modifies or supersedes a statement in
such document. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
The contents of the Registrant's Registration Statement on Form S-8
(Registration No. 33-79042) are incorporated herein by reference.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Certificate of Incorporation limits, to the maximum
extent permitted by Delaware law, the personal liability of directors for
monetary damages for breach of their fiduciary duties as a director. The
Registrant's Bylaws provide that the Registrant shall indemnify its officers and
directors and may indemnify its employees and other agents to the fullest extent
permitted by Delaware Law.
Section 145 of the DGCL provides that a corporation may indemnify any
person made a party to an action (other than an action by or in the right of the
corporation) by reason of the fact that he or she was a director, officer,
employee or agent of the corporation or was serving at the request of the
corporation against expenses (including attorneys' fees), judgments, fines, and
amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action if he or she acted in good faith and in a manner he
or she reasonably believed to be in, or
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not opposed to, the best interests of the corporation and, with respect to any
criminal action (other than an action by or in the right of the corporation),
has no reasonable cause to believe his or her conduct was unlawful.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed as part of this Registration
Statement:
Number Description
------ -----------
4.1 1998 Stock Incentive Plan.
4.2 1989 Non-Qualified Stock Option Plan, as amended to
date.
4.3 1995 Stock Option Plan of Timber Lodge Steakhouse, Inc.
5.1 Opinion of Stradling Yocca Carlson & Rauth, a
Professional Corporation.
23.1 Consent of Grant Thornton LLP, independent auditors,
with respect to the consolidated financial statements
of the Registrant as of and for the years ended
December 31, 1996 and 1997.
23.2 Consent of Cacciamatta Accountancy Corporation,
independent auditors, with respect to the consolidated
financial statements of the Registrant as of and for
the year ended December 31, 1995.
23.3 Consent of Stradling Yocca Carlson & Rauth, a
Professional Corporation (included in the Opinion filed
as Exhibit 5.1).
24.1 Power of Attorney (included on the signature page).
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(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;
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(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this
section do not apply if the information required to be included in a
post-effective amendment by these paragraphs is contained in periodic reports
filed with or furnished to the Commission by the Registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act 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.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act 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 therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 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 Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Anaheim, State of California, on the 24th day of
September, 1998.
SANTA BARBARA RESTAURANT GROUP, INC.
By: /s/ Andrew F. Puzder
--------------------------------
Andrew F. Puzder,
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned directors and officers of Santa Barbara Restaurant
Group, Inc., do hereby make, constitute and appoint William P. Foley, II, Andrew
F. Puzder and Frank P. Willey, and each of them acting individually, our true
and lawful attorneys-in-fact and agents, with power to act without any other and
with full power of substitution, to do any and all acts and things in our name
and behalf in our capacities as directors and officers, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
or any related Registration Statement that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to
file the same, with 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 or necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ WILLIAM P. FOLEY, II
- -------------------------------- Chairman of the Board September 23, 1998
William P. Foley, II
/s/ ANDREW F. PUZDER Chief Executive Officer
- --------------------------------- and Director September 23, 1998
Andrew F. Puzder (Principal Executive Officer)
/s/ FRANK P. WILLEY
- --------------------------------- Director September 23, 1998
Frank P. Willey
/s/ THEODORE ABAJIAN Executive Vice President and
- --------------------------------- Chief Financial Officer September 23, 1998
Theodore Abajian Principal Financial Officer and
Principal Accounting Officer)
/s/ C. THOMAS THOMPSON
- --------------------------------- Director September 23, 1998
C. Thomas Thompson
/s/ T. ANTHONY GREGORY
- --------------------------------- Director September 23, 1998
T. Anthony Gregory
- --------------------------------- Director September __, 1998
Bruce H. Haglund
</TABLE>
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EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
4.1 1998 Stock Incentive Plan.
4.2 1989 Non-Qualified Stock Option Plan, as amended to date.
4.3 1995 Stock Option Plan of Timber Lodge Steakhouse, Inc.
5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional
Corporation
23.1 Consent of Grant Thornton LLP, independent auditors, with respect to
the consolidated financial statements of the Registrant as of and
for the years ended December 31, 1996 and 1997.
23.2 Consent of Cacciamatta Accountancy Corporation, independent
auditors, with respect to the consolidated financial statements of
the Registrant as of and for the year ended December 31, 1995.
23.3 Consent of Stradling Yocca Carlson & Rauth, a Professional
Corporation (included in the Opinion filed as Exhibit 5.1).
24.1 Power of Attorney (included on the signature page).
<PAGE> 1
EXHIBIT 4.1
GB FOODS CORPORATION
1998 STOCK INCENTIVE PLAN
This 1998 STOCK INCENTIVE PLAN (the "Plan") is hereby established by GB
FOODS CORPORATION, a Delaware corporation (the "Company") and adopted by its
Board of Directors as of the fifteenth (15th) day of April, 1998 (the "Effective
Date").
ARTICLE 1.
PURPOSES OF THE PLAN
1.1 Purposes. The purposes of the Plan are (a) to enhance the Company's
ability to attract and retain the services of qualified employees, consultants
and other service providers upon whose judgment, initiative and efforts the
successful conduct and development of the Company's business largely depends,
and (b) to provide additional incentives to such persons or entities to devote
their utmost effort and skill to the advancement and betterment of the Company,
by providing them an opportunity to participate in the ownership of the Company
and thereby have an interest in the success and increased value of the Company.
ARTICLE 2.
DEFINITIONS
For purposes of this Plan, the following terms shall have the meanings
indicated:
2.1 Administrator. "Administrator" means the Board or, if the Board
delegates responsibility for any matter to the Committee, the term Administrator
shall mean the Committee.
2.2 Affiliated Company. "Affiliated Company" means any "parent
corporation" or "subsidiary corporation" of the Company, whether now existing or
hereafter created or acquired, as those terms are defined in Sections 424(e) and
424(f) of the Code, respectively.
2.3 Board. "Board" means the Board of Directors of the Company.
2.4 Change in Control. "Change in Control" shall have the meaning ascribed
thereto in Section 8.1.
2.5 Code. "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
2.6 Committee. "Committee" means a committee of two or more members of the
Board appointed to administer the Plan, as set forth in Section 7.1 hereof.
2.7 Common Stock. "Common Stock" means the Common Stock, par value $0.08
per share, of the Company, subject to adjustment pursuant to Section 4.2 hereof.
2.8 Disability. "Disability" means permanent and total disability as
defined in Section 22(e)(3) of the Code. The Administrator's determination of a
Disability or the absence thereof shall be conclusive and binding on all
interested parties.
2.9 Effective Date. "Effective Date" means the date on which the Plan is
adopted by the Board, as set forth on the first page hereof.
2.10 Exercise Price. "Exercise Price" means the purchase price per share
of Common Stock payable upon exercise of an Option.
2.11 Fair Market Value. "Fair Market Value" on any given date means the
value of one share of Common Stock, determined as follows:
(a) If the Common Stock is then listed or admitted to trading on a
NASDAQ market system or a stock exchange which reports closing sale prices,
the Fair Market Value shall be the closing sale price on the date of
valuation on such NASDAQ market system or principal stock exchange on which
the Common Stock is then listed or admitted to trading, or, if no closing
sale price is quoted on such day,
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then the Fair Market Value shall be the closing sale price of the Common
Stock on such NASDAQ market system or such exchange on the next preceding
day for which a closing sale price is reported.
(b) If the Common Stock is not then listed or admitted to trading on a
NASDAQ market system or a stock exchange which reports closing sale prices,
the Fair Market Value shall be the average of the closing bid and asked
prices of the Common Stock in the over-the-counter market on the date of
valuation.
(c) If neither (a) nor (b) is applicable as of the date of valuation,
then the Fair Market Value shall be determined by the Administrator in good
faith using any reasonable method of evaluation, which determination shall
be conclusive and binding on all interested parties.
2.12 Incentive Option. "Incentive Option" means any Option designated and
qualified as an "incentive stock option" as defined in Section 422 of the Code.
2.13 Incentive Option Agreement. "Incentive Option Agreement" means an
Option Agreement with respect to an Incentive Option.
2.14 NASD Dealer. "NASD Dealer" means a broker-dealer that is a member of
the National Association of Securities Dealers, Inc.
2.15 Nonqualified Option. "Nonqualified Option" means any Option that is
not an Incentive Option. To the extent that any Option designated as an
Incentive Option fails in whole or in part to qualify as an Incentive Option,
including, without limitation, for failure to meet the limitations applicable to
a 10% Shareholder or because it exceeds the annual limit provided for in Section
5.6 below, it shall to that extent constitute a Nonqualified Option.
2.16 Nonqualified Option Agreement. "Nonqualified Option Agreement" means
an Option Agreement with respect to a Nonqualified Option.
2.17 Offeree. "Offeree" means a Participant to whom a Right to Purchase
has been offered or who has acquired Restricted Stock under the Plan.
2.18 Option. "Option" means any option to purchase Common Stock granted
pursuant to the Plan.
2.19 Option Agreement. "Option Agreement" means the written agreement
entered into between the Company and the Optionee with respect to an Option
granted under the Plan.
2.20 Optionee. "Optionee" means a Participant who holds an Option.
2.21 Participant. "Participant" means an individual or entity who holds an
Option, a Right to Purchase or Restricted Stock under the Plan.
2.22 Purchase Price. "Purchase Price" means the purchase price per share
of Restricted Stock payable upon acceptance of a Right to Purchase.
2.23 Restricted Stock. "Restricted Stock" means shares of Common Stock
issued pursuant to Article 6 hereof, subject to any restrictions and conditions
established pursuant to such Article 6.
2.24 Right to Purchase. "Right to Purchase" means a right to purchase
Restricted Stock granted to an Offeree pursuant to Article 6 hereof.
2.25 Service Provider. "Service Provider" means a consultant or other
person or entity who provides services to the Company or an Affiliated Company
and who the Administrator authorizes to become a Participant in the Plan.
2.26 Stock Purchase Agreement. "Stock Purchase Agreement" means the
written agreement entered into between the Company and the Offeree with respect
to a Right to Purchase offered under the Plan.
2.27 10% Shareholder. "10% Shareholder" means a person who, as of a
relevant date, owns or is deemed to own (by reason of the attribution rules
applicable under Section 424(d) of the Code) stock
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possessing more than 10% of the total combined voting power of all classes of
stock of the Company or of an Affiliated Company.
ARTICLE 3.
ELIGIBILITY
3.1 Incentive Options. Officers and other key employees of the Company or
of an Affiliated Company (including members of the Board if they are employees
of the Company or of an Affiliated Company) are eligible to receive Incentive
Options under the Plan.
3.2 Nonqualified Options and Rights to Purchase. Officers and other key
employees of the Company or of an Affiliated Company, members of the Board
(whether or not employed by the Company or an Affiliated Company), and Service
Providers are eligible to receive Nonqualified Options or Rights to Purchase
under the Plan.
3.3 Limitation on Shares. In no event shall any Participant be granted
Options or Rights to Purchase in any one calendar year pursuant to which the
aggregate number of shares of Common Stock that may be acquired thereunder
exceeds two hundred fifty thousand (250,000) shares.
ARTICLE 4.
PLAN SHARES
4.1 Shares Subject to the Plan. A total of one million (1,000,000) shares
of Common Stock may be issued under the Plan, subject to adjustment as to the
number and kind of shares pursuant to Section 4.2 hereof. For purposes of this
limitation, in the event that (a) all or any portion of any Option or Right to
Purchase granted or offered under the Plan can no longer under any circumstances
be exercised, or (b) any shares of Common Stock are reacquired by the Company
pursuant to an Incentive Option Agreement, Nonqualified Option Agreement or
Stock Purchase Agreement, the shares of Common Stock allocable to the
unexercised portion of such Option or such Right to Purchase, or the shares so
reacquired, shall again be available for grant or issuance under the Plan.
4.2 Changes in Capital Structure. In the event that the outstanding shares
of Common Stock are hereafter increased or decreased or changed into or
exchanged for a different number or kind of shares or other securities of the
Company by reason of a recapitalization, stock split, combination of shares,
reclassification, stock dividend, or other change in the capital structure of
the Company, then appropriate adjustments shall be made by the Administrator to
the aggregate number and kind of shares subject to this Plan, and the number and
kind of shares and the price per share subject to outstanding Option Agreements,
Rights to Purchase and Stock Purchase Agreements in order to preserve, as nearly
as practical, but not to increase, the benefits to Participants.
ARTICLE 5.
OPTIONS
5.1 Option Agreement. Each Option granted pursuant to this Plan shall be
evidenced by an Option Agreement which shall specify the number of shares
subject thereto, vesting provisions relating to such Option, the Exercise Price
per share, and whether the Option is an Incentive Option or Nonqualified Option.
As soon as is practical following the grant of an Option, an Option Agreement
shall be duly executed and delivered by or on behalf of the Company to the
Optionee to whom such Option was granted. Each Option Agreement shall be in such
form and contain such additional terms and conditions, not inconsistent with the
provisions of this Plan, as the Administrator shall, from time to time, deem
desirable, including, without limitation, the imposition of any rights of first
refusal and resale obligations upon any shares of Common Stock acquired pursuant
to an Option Agreement. Each Option Agreement may be different from each other
Option Agreement.
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5.2 Exercise Price. The Exercise Price per share of Common Stock covered
by each Option shall be determined by the Administrator, subject to the
following: (a) the Exercise Price of an Incentive Option shall not be less than
100% of Fair Market Value on the date the Incentive Option is granted, (b) the
Exercise Price of a Nonqualified Option shall not be less than 85% of Fair
Market Value on the date the Nonqualified Option is granted, and (c) if the
person to whom an Option is granted is a 10% Shareholder on the date of grant,
the Exercise Price shall not be less than 110% of Fair Market Value on the date
the Option is granted.
5.3 Payment of Exercise Price. Payment of the Exercise Price shall be made
upon exercise of an Option and may be made, in the discretion of the
Administrator, subject to any legal restrictions, by: (a) cash; (b) check; (c)
the surrender of shares of Common Stock owned by the Optionee that have been
held by the Optionee for at least six (6) months, which surrendered shares shall
be valued at Fair Market Value as of the date of such exercise; (d) the
Optionee's promissory note in a form and on terms acceptable to the
Administrator; (e) the cancellation of indebtedness of the Company to the
Optionee; (f) the waiver of compensation due or accrued to the Optionee for
services rendered; (g) provided that a public market for the Common Stock
exists, a "same day sale" commitment from the Optionee and an NASD Dealer
whereby the Optionee irrevocably elects to exercise the Option and to sell a
portion of the shares so purchased to pay for the Exercise Price and whereby the
NASD Dealer irrevocably commits upon receipt of such shares to forward the
Exercise Price directly to the Company; (h) provided that a public market for
the Common Stock exists, a "margin' commitment from the Optionee and an NASD
Dealer whereby the Optionee irrevocably elects to exercise the Option and to
pledge the shares so purchased to the NASD Dealer in a margin account as
security for a loan from the NASD Dealer in the amount of the Exercise Price,
and whereby the NASD Dealer irrevocably commits upon receipt of such shares to
forward the Exercise Price directly to the Company; or (i) any combination of
the foregoing methods of payment or any other consideration or method of payment
as shall be permitted by applicable corporate law.
5.4 Term and Termination of Options. The term and provisions for
termination of each Option shall be as fixed by the Administrator, but no Option
may be exercisable more than ten (10) years after the date it is granted. An
Incentive Option granted to a person who is a 10% Shareholder on the date of
grant shall not be exercisable more than five (5) years after the date it is
granted.
5.5 Vesting and Exercise of Options. Each Option shall vest and become
exercisable in one or more installments at such time or times and subject to
such conditions, including without limitation the achievement of specified
performance goals or objectives, as shall be determined by the Administrator;
provided, however, in no event shall any Option vest as to less than 20% of the
shares represented thereby in each of the five years following grant until such
Option is fully vested.
5.6 Annual Limit on Incentive Options. To the extent required for
"incentive stock option" treatment under Section 422 of the Code, the aggregate
Fair Market Value (determined as of the time of grant) of the Common Stock shall
not, with respect to which Incentive Options granted under this Plan and any
other plan of the Company or any Affiliated Company become exercisable for the
first time by an Optionee during any calendar year, exceed $100,000.
5.7 Nontransferability of Options. No Option shall be assignable or
transferable except by will or the laws of descent and distribution, and during
the life of the Optionee shall be exercisable only by such Optionee; provided,
however, that, in the discretion of the Administrator, an Option may be assigned
or transferred in any manner which an such option is permitted to be assigned or
transferred under the Code.
5.8 Rights as Shareholder. An Optionee or permitted transferee of an
Option shall have no rights or privileges as a shareholder with respect to any
shares covered by an Option until such Option has been duly exercised and
certificates representing shares purchased upon such exercise have been issued
to such person.
5.9 Company's Repurchase Right. In the event of termination of a
Participant's employment or service as a director of the Company for any reason
whatsoever (including death or disability), the Option Agreement may provide, in
the discretion of the Administrator, that the Company, or its assignee, shall
have the right, exercisable at the discretion of the Administrator, to
repurchase shares of Common Stock acquired pursuant to the exercise of an Option
at any time prior to the consummation of the Company's initial public offering
of
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securities in an offering registered under the Securities Act of 1933, as
amended, and at the price equal to the Fair Market Value per share of Common
Stock (determined in accordance with Section 2.11 hereof) as of the date of
termination of Optionee's employment. The repurchase right provided in this
Section 5.9 shall terminate and be of no further force or effect following the
consummation of an underwritten public offering of the Company's Common Stock.
In any event, the right to repurchase must be exercised within ninety (90)
days of the termination of Participant's employment and may be paid by the
Company, or its assignee, by cash, check, or cancellation of indebtedness.
5.10 Restrictions on Underlying Shares of Common Stock. Shares of Common
Stock issued pursuant to the exercise of an Option may not be sold, assigned,
transferred, pledged or otherwise encumbered or disposed of except as
specifically provided in the Option Agreement.
ARTICLE 6.
RIGHTS TO PURCHASE
6.1 Nature of Right to Purchase. A Right to Purchase granted to an Offeree
entitles the Offeree to purchase, for a Purchase Price determined by the
Administrator, shares of Common Stock subject to such terms, restrictions and
conditions as the Administrator may determine at the time of grant ("Restricted
Stock"). Such conditions may include, but are not limited to, continued
employment or the achievement of specified performance goals or objectives.
6.2 Acceptance of Right to Purchase. An Offeree shall have no rights with
respect to the Restricted Stock subject to a Right to Purchase unless the
Offeree shall have accepted the Right to Purchase within ten (10) days (or such
longer or shorter period as the Administrator may specify) following the grant
of the Right to Purchase by making payment of the full Purchase Price to the
Company in the manner set forth in Section 6.3 hereof and by executing and
delivering to the Company a Stock Purchase Agreement. Each Stock Purchase
Agreement shall be in such form, and shall set forth the Purchase Price and such
other terms, conditions and restrictions of the Restricted Stock, not
inconsistent with the provisions of this Plan, as the Administrator shall, from
time to time, deem desirable. Each Stock Purchase Agreement may be different
from each other Stock Purchase Agreement.
6.3 Payment of Purchase Price. Subject to any legal restrictions, payment
of the Purchase Price upon acceptance of a Right to Purchase Restricted Stock
may be made, in the discretion of the Administrator, by: (a) cash; (b) check;
(c) the surrender of shares of Common Stock owned by the Offeree that have been
held by the Offeree for at least six (6) months, which surrendered shares shall
be valued at Fair Market Value as of the date of such exercise; (d) the
Offeree's promissory note in a form and on terms acceptable to the
Administrator; (e) the cancellation of indebtedness of the Company to the
Offeree; (f) the waiver of compensation due or accrued to the Offeree for
services rendered; or (g) any combination of the foregoing methods of payment or
any other consideration or method of payment as shall be permitted by applicable
corporate law.
6.4 Rights as a Shareholder. Upon complying with the provisions of Section
6.2 hereof, an Offeree shall have the rights of a shareholder with respect to
the Restricted Stock purchased pursuant to the Right to Purchase, including
voting and dividend rights, subject to the terms, restrictions and conditions as
are set forth in the Stock Purchase Agreement. Unless the Administrator shall
determine otherwise, certificates evidencing shares of Restricted Stock shall
remain in the possession of the Company until such shares have vested and are no
longer subject to any repurchase rights or restrictions on transfer in
accordance with the terms of the Stock Purchase Agreement.
6.5 Restrictions and Repurchase Right. Shares of Restricted Stock may not
be sold, assigned, transferred, pledged or otherwise encumbered or disposed of
except as specifically provided in the Stock Purchase Agreement. In the event of
termination of a Participant's employment, service as a director of the Company,
or Service Provider status for any reason whatsoever (including death or
disability), the Stock
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Purchase Agreement may provide, in the discretion of the Administrator, that the
Company, or its assignees, shall have the right, exercisable at the discretion
of the Administrator, to repurchase any shares of Restricted Stock which are
Unvested at the original Purchase Price and shares of Restricted Stock which are
Vested at a price that is equal to the Fair Market Value per share of Restricted
Stock (determined in accordance with Section 2.11 hereof) as of the date of
termination of Participant's employment. The repurchase right provided in this
Section 6.5 shall terminate and be of no further force or effect following the
consummation of an underwritten public offering of the Company's Common Stock.
In any event, the right to repurchase upon termination of Participant's
employment must be exercised within ninety (90) days of the termination of
employment and may be paid by the Company, or its assignee, by cash, check, or
cancellation of indebtedness.
6.6 Vesting of Restricted Stock. The Stock Purchase Agreement shall
specify the date or dates, the performance goals or objectives which must be
achieved, and any other conditions on which the Restricted Stock may vest.
6.7 Dividends. If payment for shares of Restricted Stock is made by
promissory note, any cash dividends paid with respect to the Restricted Stock
may be applied, in the discretion of the Administrator, to repayment of such
note.
6.8 Nonassignability of Rights. No Participant's Right to Purchase shall
be assignable or transferable except by will or the laws of descent and
distribution or as otherwise provided by the Administrator.
ARTICLE 7.
ADMINISTRATION OF THE PLAN
7.1 Administrator. Authority to control and manage the operation and
administration of the Plan shall be vested in the Board, which may delegate such
responsibilities in whole or in part to a committee consisting of two (2) or
more members of the Board (the "Committee"). Members of the Committee may be
appointed from time to time by, and shall serve at the pleasure of, the Board.
7.2 Powers of the Administrator. In addition to any other powers or
authority conferred upon the Administrator elsewhere in the Plan or by law, the
Administrator shall have full power and authority: (a) to determine the persons
to whom, and the time or times at which, Incentive Options or Nonqualified
Options shall be granted and Rights to Purchase shall be offered, the number of
shares to be represented by each Option and Right to Purchase and the
consideration to be received by the Company upon the exercise thereof; (b) to
interpret the Plan; (c) to create, amend or rescind rules and regulations
relating to the Plan; (d) to determine the terms, conditions and restrictions
contained in, and the form of, Option Agreements and Stock Purchase Agreements;
(e) to determine the identity or capacity of any persons who may be entitled to
exercise a Participant's rights under any Option or Right to Purchase under the
Plan; (f) to correct any defect or supply any omission or reconcile any
inconsistency in the Plan or in any Option Agreement or Stock Purchase
Agreement; (g) to accelerate the vesting of any Option or Right to Purchase and
to release, waive, or assign any repurchase rights of the Company with respect
to Restricted Stock or shares issued pursuant to the exercise of an Option; (h)
to extend the exercise date of any Option or acceptance date of any Right to
Purchase; (i) to provide for rights of first refusal and/or repurchase rights;
(j) to amend outstanding Option Agreements and Stock Purchase Agreements to
provide for, among other things, any change or modification which the
Administrator could have provided for upon the grant of an Option or Right to
Purchase or in furtherance of the powers provided for herein; (k) to assign any
of the Company's rights to repurchase shares of Common Stock, with or without
any consideration for the assignment; and (l) to make all other determinations
necessary or advisable for the administration of the Plan, but only to the
extent not contrary to the express provisions of the Plan. Any action, decision,
interpretation or determination made in good faith by the Administrator in the
exercise of its authority conferred upon it under the Plan shall be final and
binding on the Company and all Participants.
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7.3 Limitation on Liability. No employee of the Company or member of the
Board or Committee shall be subject to any liability with respect to duties
under the Plan unless the person acts fraudulently or in bad faith. To the
extent permitted by law, the Company shall indemnify each member of the Board or
Committee, and any employee of the Company with duties under the Plan, who was
or is a party, or is threatened to be made a party, to any threatened, pending
or completed proceeding, whether civil, criminal, administrative or
investigative, by reason of such person's conduct in the performance of duties
under the Plan.
ARTICLE 8.
CHANGE IN CONTROL
8.1 Change in Control. In the event that the Company at any time proposes
to enter into any transaction approved by the Board to sell substantially all of
its assets or merge or consolidate with any other entity as a result of which
either the Company is not the surviving corporation or the Company is the
surviving corporation and the ownership of the voting power of the Company's
capital stock changes by more than 50% as a result of such transaction, or in
the event of a "Recommended Share Purchase Offer" (as defined below) (a "Change
in Control"), the time period relating to the exercise or realization of all
outstanding Options, Rights to Purchase and Restricted Stock shall automatically
accelerate immediately prior to the consummation of such Change in Control,
unless the Administrator, in its discretion, shall specifically determine to the
contrary with respect to all outstanding Options, Rights to Purchase and
Restricted Stock. In addition, in the event of a Change in Control of the
Company, with respect to Options and Rights to Purchase, the Administrator may,
in its discretion, at the time any Option or Right to Purchase is granted, or at
any time thereafter, take one or more of the following actions: (i) provide for
the purchase or exchange of each Option or Right to Purchase for an amount of
cash or other property having a value equal to the difference, or spread,
between (x) the value of the cash or other property that the Participant would
have received pursuant to such Change in Control transaction in exchange for the
shares issuable upon exercise of the Option or Right to Purchase had the Option
or Right to Purchase been exercised immediately prior to such Change in Control
transaction and (y) the Exercise Price of such Option or the Purchase Price
under such Right to Purchase; (ii) adjust the terms of the Options and Rights to
Purchase in a manner determined by the Administrator to reflect the Change in
Control; (iii) cause the Options and Rights to Purchase to be assumed, or new
rights substituted therefor, by another entity, through the continuance of the
Plan and the assumption of outstanding Options and Rights to Purchase, or the
substitution for such Options and Rights to Purchase of new options and new
rights to purchase of comparable value covering shares of a successor
corporation, with appropriate adjustments as to the number and kind of shares
and Exercise Prices, in which event the Plan and such Options and Rights to
Purchase, or the new options and rights to purchase substituted therefor, shall
continue in the manner and under the terms so provided; or (iv) make such other
provision as the Administrator may consider equitable. If the Administrator does
not take any of the forgoing actions, all Options and Rights to Purchase shall
terminate upon the consummation of the Change in Control and the Administrator
shall cause written notice of the proposed transaction to be given to all
Participants not less than fifteen (15) days prior to the anticipated effective
date of the proposed transaction. For purposes of this Section 8.1, a
"Recommended Share Purchase Offer" shall be a transaction in which an offer is
made to purchase outstanding securities of the Company constituting more than
50% of the voting power of the Company's capital stock, which offer is
recommended to the Company's securityholders by the Company's Board.
ARTICLE 9.
AMENDMENT AND TERMINATION OF THE PLAN
9.1 Amendments. The Board may from time to time alter, amend, suspend or
terminate the Plan in such respects as the Board may deem advisable. No such
alteration, amendment, suspension or termination shall be made which shall
substantially affect or impair the rights of any Participant under an
outstanding Option Agreement or Stock Purchase Agreement without such
Participant's consent. The Board may alter or amend the Plan to comply with
requirements under the Code relating to Incentive Options or other types of
options which give Optionees more favorable tax treatment than that applicable
to Options granted under this
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<PAGE> 8
Plan as of the date of its adoption. Upon any such alteration or amendment, any
outstanding Option granted hereunder may, if the Administrator so determines and
if permitted by applicable law, be subject to the more favorable tax treatment
afforded to an Optionee pursuant to such terms and conditions.
9.2 Plan Termination. Unless the Plan shall theretofore have been
terminated, the Plan shall terminate on the tenth (10th) anniversary of the
Effective Date and no Options or Rights to Purchase may be granted under the
Plan thereafter, but Option Agreements, Stock Purchase Agreements and Rights to
Purchase then outstanding shall continue in effect in accordance with their
respective terms.
ARTICLE 10.
TAX WITHHOLDING
10.1 Withholding. The Company shall have the power to withhold, or require
a Participant to remit to the Company, an amount sufficient to satisfy any
applicable Federal, state, and local tax withholding requirements with respect
to any Options exercised or Restricted Stock issued under the Plan. To the
extent permissible under applicable tax, securities and other laws, the
Administrator may, in its sole discretion and upon such terms and conditions as
it may deem appropriate, permit a Participant to satisfy his or her obligation
to pay any such tax, in whole or in part, up to an amount determined on the
basis of the highest marginal tax rate applicable to such Participant, by (a)
directing the Company to apply shares of Common Stock to which the Participant
is entitled as a result of the exercise of an Option or as a result of the
purchase of or lapse of restrictions on Restricted Stock or (b) delivering to
the Company shares of Common Stock owned by the Participant. The shares of
Common Stock so applied or delivered in satisfaction of the Participant's tax
withholding obligation shall be valued at their Fair Market Value as of the date
of measurement of the amount of income subject to withholding.
ARTICLE 11.
MISCELLANEOUS
11.1 Benefits Not Alienable. Other than as provided above, benefits under
the Plan may not be assigned or alienated, whether voluntarily or involuntarily.
Any unauthorized attempt at assignment, transfer, pledge or other disposition
shall be without effect.
11.2 No Enlargement of Employee Rights. This Plan is strictly a voluntary
undertaking on the part of the Company and shall not be deemed to constitute a
contract between the Company and any Participant to be consideration for, or an
inducement to, or a condition of, the employment of any Participant. Nothing
contained in the Plan shall be deemed to give the right to any Participant to be
retained as an employee of the Company or any Affiliated Company or to interfere
with the right of the Company or any Affiliated Company to discharge any
Participant at any time.
11.3 Application of Funds. The proceeds received by the Company from the
sale of Common Stock pursuant to Option Agreements and Stock Purchase
Agreements, except as otherwise provided herein, will be used for general
corporate purposes.
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EXHIBIT 4.2
1989 NON-QUALIFIED STOCK OPTION PLAN
GB FOODS CORPORATION
1. Purpose.
The purpose of the Plan is to promote the growth and general prosperity of
GB FOODS CORPORATION (herein called the "Company") by permitting the Company,
by grant of options (herein "Option" or "Options") to purchase shares of its
Common Stock, to attract and retain the best available personnel for positions
of substantial responsibility as officers, directors, consultants, legal
counsel and others who would perform services valuable to the Company
(hereinafter generally referred to as "Optionee").
2. Administration.
The Plan shall be administered by the Board of Directors of the Company.
Subject to the provisions of the Plan, the Board of Directors shall have sole
authority, in its absolute discretion, to determine which of the eligible
individuals shall receive Options, the time when Options shall be granted, the
terms of such Options (which may differ from one another), and the number of
shares to be optioned and shall have authority to do everything necessary or
appropriate to administer the Plan including, without limitation, interpreting
the Plan. All decisions, determinations and interpretations of the Board of
Directors shall be final and binding on all Optionees.
3. Eligibility.
The Board of Directors may grant Options to any key employee, including an
officer or director of the Company, any stockholder of the Company, any
director of the Company, any attorney for the Company or any individual
performing services for the Company that the directors deem valuable to the
Company.
4. Stock to be Optioned.
Subject to the provisions of Section 10, no Options may be granted
hereunder if the effect of granting such Option would be to cause the aggregate
number of Options issued under this plan to exceed 100,000 shares.
5. Term.
The Plan shall become effective upon its adoption by the Board of
Directors. It shall continue in effect for a term of ten (10) years unless
sooner terminated under Section 9.
6. Option Exercise Price.
The option price per share of the Common Stock to be issued under the Plan
shall be its market price at the date of grant of the Option.
7. Exercise of Option by Optionee.
(a) The number of shares optioned to an Optionee will be available to the
Optionee at any time after the grant in total or in share lots not less than
one thousand shares (1,000). Provided, however, in any event, the Board of
Directors of the Company may determine specific terms and conditions of any of
the Options granted to an Optionee. An Option may not be exercised for
fractional shares of the stock of the Company.
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<PAGE> 2
An Option may be exercised in installments and at any time and from time to
time during the period commencing on the date(s) established by the Board of
Directors or the Executive Committee at the time of the grant of Options and
ending ten (10) years from the date of grant of such Option with respect to all
or part of the shares covered by such Option, subject, however, to the further
restriction contained in this Section 7.
In the event the Company or the shareholders of the Company enter into an
agreement to dispose of all or substantially all of the assets or stock of the
Company by means of a sale, a reorganization, a liquidation, or otherwise, any
Option granted shall become immediately exercisable with respect to the full
number of shares subject to that Option, notwithstanding the preceding
paragraphs of this Section 7(a), during the period commencing as of the date of
such agreement and ending when the disposition of assets or stock contemplated
by the agreement is consummated or the agreement is terminated.
(b) An Option shall be exercised when written notice of such exercise has
been given to the Company at its principal business office by the person
entitled to exercise the Option and full payment for the shares with respect to
which the Option is exercised has been received by the Company. Until the
issuance of the stock certificates, no right to vote or receive dividends or
any other rights associated with the ownership of stock shall exist with
respect to optioned shares notwithstanding the exercise of the Option. No
adjustment will be made for a dividend or other rights for which the record
date is prior to the date the stuck certificate is issued except as provided in
Section 10.
(c) An Option may be exercised by an Optionee who is a director, officer, or
employee only while he is, and has continually been since the date of the grant
of the Option, a director or officer of the Company, its subsidiaries, its
parent, or its successor companies, and for a period ending three (3) months
after such Optionee has terminated his continuous activity with the Company,
except that if his continuous service terminates by reason of his death, to the
extent that installments have accrued and remain unexercised on the date of the
Optionee's death, such Option of the deceased Optionee may be exercised within
one year after the death of such Optionee, but in no event later than five (5)
years after the date of grant of such Option, by (and only by) the person or
persons to whom his rights under such Option shall have passed by will or by
laws of descent and distribution.
(d) An Option may be exercised in accordance with this Section 7 as to all
or any portion of the shares subject to the Option from time to time, but shall
not be exercisable with respect to fractions of a share.
8. Options not Transferable by Employees.
As to employees only, Options under the Plan may not be sold, pledged,
assigned or transferred in any manner otherwise than by will or the laws of
descent or distribution, and may be exercised during the lifetime of an
employee/Optionee only by such employee/Optionee.
9. Amendment or Termination of the Plan.
(a) The Board of Directors may amend the Plan from time to time in such
respects as the Board may deem advisable.
(b) The Board of Directors may at any time terminate the Plan. Any such
termination of the Plan shall not affect Options already granted and such
Options shall remain in full force and effect as if this Plan had not been
terminated.
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10. Adjustments Upon Changes In Capitalization.
If all or any portion of an Option is exercised subsequent to any stock
dividend, split-up, recapitalization, combination or exchange of shares,
merger, consolidation, acquisition of property or stock, separation,
reorganization, or liquidation, as a result of which shares of any class shall
be issued in respect of outstanding shares of Common Stock or shares of Common
Stock shall be changed into the same or a different number of shares of the
same or another class or classes, the person or persons so exercising such an
Option shall receive, for the aggregate price payable upon such exercise of the
Option, the aggregate number and class of shares which, if shares of Common
Stock (as authorized at the date of the granting of such Option) had been
purchased at the date of granting of the Option for the same aggregate price
(on the basis of the price per share provided in the Option) and had not been
disposed of, such person or persons would be holding at the time of such
exercise, as a result of such purchase and any such stock dividend, split-up,
recapitalization, combination or exchange of shares, merger, consolidation,
acquisition of property or stock, separation, reorganization or liquidation;
provided, however, that no fractional share be issued upon any such exercise,
and the aggregate price paid shall be appropriately reduced on account of any
fractional share not issued. In the event of any such change in the outstanding
Common Stock of the Company, the aggregate number and class of shares remaining
available under the Plan shall be that number and class which a person, to whom
an Option had been granted for all of the available shares under the Plan on
the date preceding such change, would be entitled to receive as provided in the
first sentence of this Section 10.
11. Agreement and Representations of Optionee.
As a condition to the exercise of any portion of an Option, the Company may
require the person exercising such Option to represent and warrant at the time
of any such exercise that the shares are being purchased only for investment
and without any present intention to sell or distribute such shares if, in the
opinion of counsel for the Company, such a representation is required under the
Securities Act of 1933 or any other applicable law, regulation or rule of any
governmental agency.
12. Reservation of Shares of Common Stock.
The Company, during the term of this Plan, will at all times reserve and
keep available, and will seek or obtain from any regulatory body having
jurisdiction any requisite authority in order to issue and sell such number of
shares of its Common Stock as shall be sufficient to satisfy the requirements
of the Plan. Inability of the Company to obtain from any regulatory body having
jurisdiction authority deemed by the Company's counsel to be necessary to the
lawful issuance and sale of any shares of its stock hereunder shall relieve the
Company of any liability in respect of the nonissuance or sale of such stock
as to which such requisite authority shall not have been obtained.
DATE PLAN ADOPTED BY BOARD OF DIRECTORS: October 26, 1989
DATE PLAN APPROVED BY STOCKHOLDERS:
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EXHIBIT 4.3
TIMBER LODGE STEAKHOUSE, INC.
1995 STOCK OPTION PLAN
1.) Purposes. The principal purposes of the Timber Lodge Steakhouse,
Inc. (the "Corporation") 1995 Stock Option Plan (the "Plan") are incentives and
rewards to employees, directors and consultants of the Corporation, (b) to
assist the Corporation in attracting, retaining and motivating employees and
consultants with experience and ability, and (c) to associate the interests of
such persons with those of the corporation's shareholders.
Options granted under this Plan may either be Incentive Stock Options
qualified under Section 422 of the code or Non-Qualified Options.
(01) "Capital Stock" - any of the Corporation's authorized but unissued
shares of voting common stock, par value of One Dollar ($1.00) per share.
(02) "Code" - the Internal Revenue Code of 1986, as amended from time to
time.
(03) "Corporation" - Timber Lodge Steakhouse, Inc., a Minnesota
corporation and any of its Subsidiaries or its Parent.
(04) "Exchange Act" - the Securities Exchange Act of 1934, as amended.
(05) "Fair Market Value" - the price per share determined as follows: (a)
if the security is listed for trading on one or more national securities
exchanges (including the NASDAQ National Market System), the reported last
sales price on such principal exchange on the date in question, or if such
security shall not have been traded on such principal exchange on such
date, the reported last sales price on such principal exchange on the first
day prior thereto on which such security was so traded; or (b) if the
security is not listed for trading on a national securities exchange
(including the NASDAQ National Market System) but is traded in the
over-the-counter market, the mean of the highest and lowest bid prices for
such security on the date in question, or if there are no such bid prices
for such security on such date, the mean of the highest and lowest bid
prices or the first day prior thereto on which such prices existed; or (c)
if neither (a) nor (b) is applicable, by any means deemed fair and
reasonable by the Committee (as defined below), which determination shall
be final and binding on all parties.
<PAGE> 2
(06) "Incentive Stock Option" - an option defined in Section 422 of the
code to purchase shares of the Capital Stock of the Corporation.
(07) "Non-Qualified Stock Option" - an option, not intended to qualify as
an Incentive Stock Option as defined in Section 422 of the code, to
purchase Capital Stock of the Corporation.
(08) "Option" - the term shall refer to either an Incentive Stock Option
or a Non-Qualified Stock Option.
(09) "Option Agreement" - a written agreement pursuant to which the
corporation grants an option to an Optionee and sets the terms and
conditions of the option.
(10) "Option Date" - the date upon which an Option agreement for an option
granted pursuant to this Plan is duly executed by or on behalf of the
Corporation.
(11) "Option Stock" - the voting common stock of the Corporation, par
value of One Dollar ($1.00) per share (subject to adjustment as described
in Section 8) reserved for options pursuant to this Plan, or any other
class of stock of the Corporation which may be substituted therefor by
exchange, stock split or otherwise.
(12) "Optionee" - an officer, management level employee, other employee,
and consultant of the Corporation or one of its Subsidiaries to whom an
option has been granted under the plan.
(13) "Plan" - this 1995 Stock Option Plan as amended hereafter from time
to time.
(14) A "Subsidiary" - any corporation in an unbroken chain of corporations
beginning with the Corporation, if, at the time of granting the option,
each of the corporations other than the last corporation in the chain owns
stock possessing fifty percent (50%) or more of the total combined voting
power of all classes of stock in one of the other corporations in such
chain. The term shall include any subsidiaries which become such after
adoption of this Plan.
(15) A "Parent" - a corporation that directly, or indirectly through
related corporations, owns more than 50 percent of the voting power of the
shares entitled to vote for directors of Timber Lodge Steakhouse, Inc. The
term shall include a corporation which becomes such after adoption of this
Plan.
3.) Options Available Under Plan. The Corporation's authorized Capital
Stock in an amount equal to 250,000 shares is hereby made available, and shall
be reserved for issuance under this Plan. The aggregate number of shares
available under this
2.
<PAGE> 3
Plan shall be subject to adjustment on the occurrence of any of the events and
in the manner set forth in Section 8. Except as provided in Section 8, in no
event shall the number of shares reserved be reduced below the number of shares
issuable upon exercise of outstanding Options. If an Option shall expire or
terminate for any reason without having been exercised in full, the unpurchased
shares, shall (unless the Plan shall have been terminated) become available for
other Options under the Plan.
4.) Administration. The Plan shall be administered by the Board of
Directors provided that the Board may appoint, from time to time, a committee
consisting solely of not less than two members of the Board of Directors of the
Corporation (the "Committee") who are "disinterested" within the meaning of and
to the extent required by the General Rules and Regulations promulgated
pursuant to Section 16 of the Exchange Act (the "Section 16 Regulations"). Any
such committee shall exercise those functions delegated to it by the Board of
Directors. To the extent permitted by the Section 16 Regulations, the Board of
Directors may serve as the Committee.
The Corporation shall grant Options pursuant to the Plan upon
determinations of the Committee as to which of the eligible persons shall be
granted Options, the number of shares to be Optioned and the term during which
any such Options may be exercised. The Committee may from time to time adopt
rules and regulations for carrying out the Plan and interpretations and
constructions of any provision of the Plan, which shall be final and conclusive.
5.) Eligibility for Incentive Stock Options. Incentive Stock Options may
only be granted to an officer, management level employee or other employee of
the Corporation or any of its Subsidiaries. A director of the Corporation who
is not also an employee shall not be eligible to receive an Incentive Stock
Option.
In selecting the employees to whom Incentive Stock Options shall be
granted, as well as determining the number of shares subject to each Option,
the Committee shall take into consideration such factors as it deems relevant
in connection with accomplishing the purposes of the Plan. For any calendar
year, the aggregate Fair Market Value (determined at the Option Date) of the
stock with respect to which any Incentive Stock Options are exercisable for the
first time by any individual employee (under all Incentive Stock Option plans
of the Corporation, the Parent, and all Subsidiary corporations) shall not
exceed $100,000. Subject to the provisions of Section 3, an employee who has
been granted an Option may, if he or she is otherwise eligible, be granted an
additional Option or Options if the Committee shall so determine.
3.
<PAGE> 4
No Incentive Stock Option may be granted under this Plan later than the
expiration of ten (10) years from the effective date.
6.) Eligibility for Non-Qualified Options. Non-Qualified Options may be
granted only to an officer, director, management level employee, other employee
or consultant of the Corporation or a subsidiary. No further restrictions are
placed on the Committee in determining eligibility for granting Non-Qualified
Options.
7.) Terms and Conditions of Options. Whenever the Committee shall
designate an Optionee, it shall communicate to the Secretary of the Corporation
the name of the Optionee, the number of shares to be Optioned and such other
terms and conditions as it shall determine, not inconsistent with the
provisions of this Plan. The President or other officer of the Corporation
shall then enter into an Option Agreement with the optionee, complying with and
subject to the following terms and conditions and setting forth such other
terms and conditions of the Option as determined by the Committee:
(01) Number of Shares and Option Price. The Option Agreement shall state
the total number of shares to which it pertains. The price of Option Stock
for an Incentive Stock Option, shall be not less than one hundred percent
(100%) of the Fair Market Value of the Option Stock at the Option Date. The
price of the Option Stock for a Non-Qualified Stock Option shall be
determined by the Committee, but such price must be at least eighty-five
percent (85%) of the Fair Market Value at the Option Date. In the event an
Incentive Stock Option is granted to an employee, who, at the Option Date,
owns more than ten percent (10%) of the voting power of all classes of the
Corporation's stock then outstanding, the price of the shares of common
stock which will be covered by such Option shall be not less than one
hundred ten percent (110%) of the Fair Market Value of the common stock at
the Option Date. The Option price shall be subject to adjustment as
provided in Section 8 hereof.
(02) Time and Manner of Exercise of Option. Except as otherwise
determined from time to time by the Committee, Incentive Stock Options
granted under the Plan shall be exercisable as follows:
(a) After six months following the date of a grant, the option may
be exercised as to thirty-three and one-third percent (33 1/3%)
of the shares covered thereby;
(b) During each twelve (12) month period thereafter from the date on
which the option was granted, on such date designated by the
Committee, the option shall become exercisable as to an
additional
4.
<PAGE> 5
thirty-three and one-third percent (33 1/3%) of the shares
covered thereby;
(c) No option may be exercised after ten (10) years from the date on
which the option was granted; provided that no incentive stock
option granted to a 10% Holder may be exercised after five (5)
years from the date on which it was granted.
(03) Termination of Employment, Except Death or Disability. In the event
that an Optionee shall cease to be employed by the Corporation for any
reason other than his or her death, disability or "for cause," subject to
the condition that no Incentive Stock Option shall be exercisable after the
expiration of ten (10) years from the date it is granted, such Optionee
shall have the right to exercise any outstanding Options at any time within
three (3) months after the termination of the employee. In the event that
Optionee shall be terminated "for cause" including but not limited to; (i)
willfull breach of any agreement entered into with the corporation; (ii)
misappropriation of the Corporation's property, fraud, embezzlement, other
acts of dishonesty against the Corporation; or (iii) conviction of any
felony or crime involving moral turpitude, the Option may be terminated as
of the date of the Optionee's termination of employment.
(04) Leaves of Absence. The Optionee may not exercise any part of any
Incentive Stock Option while the Optionee is on leave of absence.
(05) Death or Disability of Optionee. If the Optionee shall die or become
disabled within the definition of Section 105(d)(4) of the Code, (i) while
in the employe of the Corporation or any Subsidiary, or (ii) within a
period of three (3) months after the termination of his or her employment
with the Corporation or any Subsidiary as provided in paragraph (03) of
this section, and in either case shall not have fully exercised his or her
Options, any Options granted pursuant to the Plan shall be exercisable only
within six (6) months following his or her death or date of disability or
until the earlier originally stated expiration thereof. In the case of
death, such Option shall be exercised pursuant to subparagraph (07) of this
Section by the person or persons to whom the Optionee's rights under the
Option shall pass by the Optionee's will or by the laws of descent and
distribution, and only to the extent that such Options were exercisable at
the time of death.
(06) Transfer of Option. Each Option granted hereunder shall, by its
terms, be not transferable by the Optionee other than by will or by the
laws of descent and distribution, and shall be, during the Optionee's
lifetime, exercisable only by the Optionee or Optionee's guardian or legal
representative. Except as permitted by the preceding
5.
<PAGE> 6
sentence, each Option granted under the Plan and the rights and privileges
thereby conferred shall not be transferred, assigned or pledged in any way
(whether by operation of law or otherwise), and shall not be subject to
execution, attachment or similar process. Upon any attempt to so transfer,
assign, pledge, or otherwise dispose of the Option, or of any right or
privilege conferred thereby, contrary to the provisions of the Option or
the Plan, or upon levy of any attachment or similar process upon such
rights and privileges, the Option, and such rights and privileges, shall
immediately become null and void.
(07) Manner of Exercise of Options. An Option may be exercised, in whole
or in part, at such time or times and with such rights with respect to such
shares which have accrued and are in effect. Such Option shall be
exercisable only by: (i) written notice to the Corporation of intent to
exercise the Option with respect to a specified number of shares of stock;
(ii) tendering the original Option Agreement to the Corporation; and (iii)
payment to the Corporation of the amount of the Option purchase price for
the number of shares of stock with respect to which the Option is then
exercised. Payment of the Option purchase price may be made in cash
(including certified check, bank draft or postal or express money order),
by delivery of shares of common stock of the Corporation with a Fair Market
Value equal to the Option purchase price, by a combination of cash and such
shares, whose value together with such cash shall equal the Option purchase
price or by any other method of payment which the Committee shall approve
and, in the case of an Incentive Stock Option, which shall not be
inconsistent with the provisions of Section 422 of the Code; provided,
however, that there shall be no such exercise at any one time as to fewer
than ten (10) shares or all of the remaining shares then purchasable by the
Optionee or person exercising the Option. When shares of stock are issued
to the Optionee pursuant to the exercise of an Option, the fact of such
issuance shall be noted on the Option Agreement by the Corporation before
the Option Agreement is returned to the Optionee. When all shares of
Optioned stock covered by the Option Agreement have been issued to the
Optionee, or the Option shall expire, the Option Agreement shall be
cancelled and retained by the Corporation.
(08) Option Certificate. The Board of Directors shall have discretion to
issue a certificate representing an Option granted pursuant to this Plan.
Such certificate shall be surrendered to the Corporation upon exercise of
the Option.
(09) Delivery of Certificate. Except where shares are held for unpaid
withholding taxes, between fifteen (15) and thirty (30) days after receipt
of the written notice and payment specified above, the Corporation shall
deliver to the Optionee certificates for the number of shares with respect
6.
<PAGE> 7
to which the Option has been exercised, issued in the Optionee's name;
provided, however, that such delivery shall be deemed effected for all
purposes when the Corporation, or the stock transfer agent for the
Corporation, shall have deposited such certificates in the United States
mail, postage prepaid, addressed to the Optionee and the address specified
in the written notice of exercise.
(10) Other Provisions. The Option Agreements under this Section shall
contain such other provisions as the Committee shall deem advisable.
8.) Adjustments. In the event that the outstanding shares of the common
stock of the Corporation are 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, recapitalization,
reclassification, stock split-up, combination of shares or dividends payable in
capital stock, appropriate adjustment shall be made in the number and kind of
shares as to which Options may be granted under the Plan and as to which
outstanding Options or portions thereof then unexercised shall be exercisable,
to the end that the proportionate interest of the participant shall be
maintained as before the occurrence of such event; such adjustment in
outstanding Options shall be made without change in the total price applicable
to the unexercised portion of such Options and with a corresponding adjustment
in the Option Price per share. No such adjustment shall be made which shall,
within the meaning of any applicable sections of the Code, constitute a
modification, extension or renewal of an Option or a grant of additional
benefits to a participant.
If the Corporation is a party to a merger, consolidation, reorganization
or similar corporate transaction and if, as a result of that transaction, its
shares of common stock are exchanged for: (i) other securities of the
Corporation or (ii) securities of another corporation which has assumed the
outstanding options under the Plan or has substituted for such Options its own
Options, then each Optionee shall be entitled (subject to the conditions stated
herein or in such substituted Options, if any), in respect of that Optionee's
Options, to purchase that amount of such other securities of the Corporation or
of such other corporation as is sufficient to ensure that the value of the
Optionee's Options immediately before the corporate transaction is equivalent
to the value of such Options immediately after the transaction, taking into
account the Option Price of the Option before such transaction, the fair market
value per share of the common stock immediately before such transaction and the
fair market value immediately after the transaction, of the securities then
subject to that Option (or to the option substituted for that Option, if any).
Upon the happening of any such corporate transaction, the class and aggregate
number of shares subject to the Plan which have been heretofore or may be
hereafter granted under the Plan shall be
7.
<PAGE> 8
appropriately adjusted to reflect the events specified in this clause.
9.) Rights as Stockholder. An Optionee shall not, by reason of any
Option granted hereunder, have any right of a stockholder of the Corporation
with respect to the shares covered by his Option until such shares shall have
been issued to the Optionee.
10.) No Obligation to Exercise Option. The granting of an Option shall
impose no obligation upon the Optionee to exercise such Option. Neither shall
the Plan confer upon the Optionee any rights respecting continued employment
nor limit the Optionee's rights or the Corporation's rights to terminate such
employment.
11.) Withholding Taxes. Whenever under the Plan shares of Option Stock
are to be issued upon exercise of the Options granted hereunder and prior to
the delivery of any certificate or certificates for said shares by the
Corporation, the Corporation shall have the right to require the Optionee to
remit to the corporation an amount sufficient to satisfy any federal and state
withholding or other employment taxes resulting from such exercise. In the
event that withholding taxes are not paid within five days after the date of
exercise, to the extent permitted by law the Corporation shall have the right,
but not the obligation, to cause such withholding taxes to be satisfied by
reducing the number of shares of stock deliverable or by offsetting such
withholding taxes against amounts otherwise due from the Corporation to the
Optionee. If withholding taxes are paid by reduction of the number of shares
deliverable to Optionee, such shares shall be valued at the Fair Market Value
as of the fifth business day following the date of exercise.
12.) Purchase for Investment; Rights of Holder on Subsequent Registration.
Unless the shares to be issued upon exercise of an Option granted under the
Plan have been effectively registered under the Securities Act of 1933 as now
in force or hereafter amended (the "1933 Act"), the Corporation shall be under
no obligation to issue any shares covered by any Option unless the person who
exercises such Option, whether such exercise is in whole or in part, shall give
a written representation and undertaking to the Corporation which is
satisfactory in form and scope to counsel for the Corporation and upon which,
in the opinion of such counsel, the Corporation may reasonably rely, that he or
she is acquiring the shares issued to him or her pursuant to such exercise of
the Option for his or her own account as an investment and not with a view to,
or for sale in connection with, the distribution of any such shares, and that
he or she will make no transfer of the same except in compliance with any rules
and regulations in force at the time of such transfer under the 1933 Act, or
any other applicable law, and that if shares are issued without such
registration a legend to this effect may be endorsed on the securities so
issued. In the event that the Company shall, nevertheless, deem it necessary or
8.
<PAGE> 9
desirable to register under the 1933 Act or other applicable statutes any
shares with respect to which an Option shall have been exercised, or to qualify
any such shares for exemption from the 1933 Act or other applicable statutes,
then the Corporation shall take such action at its own expense and may require
from each participant such information in writing for use in any registration
statement, prospectus, preliminary prospectus or offering circular as is
reasonably necessary for such purpose and may require reasonable indemnity to
the Company and its officers and directors from such holder against all losses,
claims, damages and liabilities arising from such use of the information so
furnished and caused by any untrue statement of any material fact required to
be stated therein or necessary to make the statement therein not misleading in
light of the circumstances under which they were made.
13.) Modification of Outstanding Options. The Committee may accelerate
the exercisability of an outstanding Option and may authorize modification of
any outstanding Option with the consent of the participant when and subject to
such conditions as are deemed to be in the best interests of the Corporation and
in accordance with the purposes of the Plan.
14.) Foreign Employees. Without amending the Plan, the Committee may
grant Options to eligible employees who are foreign nationals on such terms and
conditions different from those specified in this Plan as may in the judgment
of the Committee be necessary or desirable to foster and promote achievement of
the purposes of the Plan, and, in furtherance of such purposes the Committee
may make such modification, amendments, procedures, subplans and the like as
may be necessary or advisable to comply with provisions of laws in other
countries in which the Corporation operates or has employees.
15.) Approval of Shareholders. This Plan is expressly subject to
approval of holders of the majority of the outstanding shares of Common Stock
of the Corporation, and if it is not so approved on or before one (1) year
after the date of adoption of this Plan by the Board of Directors, the Plan
shall not come into effect and any Options granted pursuant to this Plan shall
be deemed cancelled.
16.) Liquidation. Upon the complete liquidation of the Corporation, any
unexercised Options theretofore granted under this Plan shall be deemed
cancelled, except as otherwise provided in Section 8 in connection with a
merger, consolidation or reorganization of the Corporation.
17.) Restrictions on Issuance of Shares. Notwithstanding the provisions
of Section 7, the Corporation may delay the issuance of shares covered by the
exercise of any Option and the delivery of a certificate for such shares until
one of the following conditions shall be satisfied:
9.
<PAGE> 10
(01) The shares with respect to which the Option has been exercised are at
the time of the issue of such shares effectively registered under
applicable Federal and state securities acts as now in force or hereafter
amended; or
(02) A no-action letter in respect of the issuance of such shares shall
have been obtained by the Corporation from the Securities and Exchange
Commission and any applicable state securities commissioner; or
(03) Counsel for the Corporation shall have given an opinion, which
opinion shall not be unreasonably conditioned or withheld, that such shares
are exempt from registration under applicable federal and state securities
acts as now in force or hereafter amended.
It is intended that all exercise of Options shall be effective, and the
Corporation shall use its best efforts to bring about compliance with the above
conditions within a reasonable time, except that the Corporation shall be under
no obligation to cause a registration statement or a post-effective amendment
to any registration statement to be prepared at its expense solely for the
purpose of covering the issue of shares in respect of which any option may be
exercised.
18.) Termination and Amendment of the Plan. This Plan shall terminate
ten (10) years after March 24, 1993, the effective date of the Plan, or at such
earlier time as the Board of Directors shall determine. Any termination shall
not effect any Options then outstanding under the Plan.
The Board may make such modifications of the Plan as it shall deem
advisable, but may not, without further approval of the stockholders of the
Corporation, except as provided in Section 8 hereof, (a) increase the number of
shares reserved for Options under this Plan, (b) change the manner of
determining the Option price for Incentive Stock Options, (c) increase the
maximum term of the Options provided for herein, or (d) change the class of
persons eligible to receive Options under the Plan.
10.
<PAGE> 1
EXHIBIT 5.1
STRADLING YOCCA CARLSON & RAUTH
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
660 NEWPORT CENTER DRIVE, SUITE 1600
NEWPORT BEACH, CALIFORNIA 92660-6441
TELEPHONE (949) 725-4000
FACSIMILE (949) 725-4100
SAN FRANCISCO OFFICE
44 MONTGOMERY STREET,
SUITE 2950
SAN FRANCISCO, CALIFORNIA 94104
TELEPHONE (415) 765-9180
FACSIMILE (415) 765-9187
September 21, 1998
Santa Barbara Restaurant Group, Inc.
1200 North Harbor Boulevard
Anaheim, California 92803
RE: Registration Statement on Form S-8
Ladies and Gentlemen:
At your request, we have examined the form of Registration Statement on
Form S-8 (the "Registration Statement") being filed by Santa Barbara Restaurant
Group, Inc., a Delaware corporation formerly known as GB Foods Corporation (the
"Company"), with the Securities and Exchange Commission in connection with the
registration under the Securities Act of 1933, as amended, of an aggregate of
2,135,990 shares of the Company's common stock, $.08 par value ("Common Stock"),
issuable under the Company's 1998 Stock Incentive Plan and 1989 Non-Qualified
Stock Option Plan and under the 1995 Stock Option Plan of Timber Lodge
Steakhouse, Inc. (collectively, the "Plans").
We have examined the proceedings heretofore taken and are familiar with
the additional proceedings proposed to be taken by the Company in connection
with the authorization, issuance and sale of the securities referred to above.
Based on the foregoing, it is our opinion that the 2,135,990 shares of
Common Stock, when issued under the Plans and against full payment therefor in
accordance with the respective terms and conditions of the Plans, will be
legally and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
STRADLING YOCCA CARLSON & RAUTH
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We have issued our report dated January 30, 1998, except for Note 16 as to which
the date is February 19, 1998 accompanying the consolidated financial statements
of GB Foods Corporation appearing in the Company's Annual Report on Form 10-K
for the year ended December 31, 1997 which is incorporated by reference in this
Registration Statement on Form S-8 of Santa Barbara Restaurant Group, Inc.. We
hereby consent to the incorporation by reference of said report in this
Registration Statement on Form S-8 of Santa Barbara Restaurant Group, Inc.
GRANT THORNTON LLP
Irvine, California
September 21, 1998
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement on
Form S-8 of Santa Barbara Restaurant Group, Inc. of our report dated February
23, 1996 on our audit of the statements of operations and cash flows of GB Foods
Corporation for the year ended December 31, 1995.
CACCIAMATTA ACCOUNTANCY CORPORATION
Irvine, California
September 21, 1998
