-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LElPgczaoUZ8XoFwfQ1zBzhsNLeDb0RFPYQ4nGtfjFKU2sU+lLtQ7z9uiVnL/gEM TKIko6casPev9QAmonJErQ== 0001000096-98-000537.txt : 19980827 0001000096-98-000537.hdr.sgml : 19980827 ACCESSION NUMBER: 0001000096-98-000537 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19980826 EFFECTIVENESS DATE: 19980826 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: ORGANIC FOOD PRODUCTS INC CENTRAL INDEX KEY: 0001034992 STANDARD INDUSTRIAL CLASSIFICATION: CANNED, FRUITS, VEG & PRESERVES, JAMS & JELLIES [2033] IRS NUMBER: 943076294 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-62249 FILM NUMBER: 98698005 BUSINESS ADDRESS: STREET 1: 550 MONTEREY RD CITY: MORGAN HILL STATE: CA ZIP: 95037 BUSINESS PHONE: 4087821133 MAIL ADDRESS: STREET 1: 550 MONTEREY RD CITY: MORGAN HILL STATE: CA ZIP: 95037 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on August 26, 1998. Registration No. 333-_______ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------- ORGANIC FOOD PRODUCTS, INC. ---------------------------------------------------- (Exact name of Registrant as specified in its charter) ----------- California 94-3076294 - ------------------------------- ------------------ (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) ----------- 550 Monterey Road, Suite B, Morgan Hill, California 95037 --------------------------------------------------------- (Address of principal executive offices) (Zip Code) 1995 Stock Option Plan ---------------------- (Full title of the plan) James F. Swallow, Chief Executive Officer 550 Monterey Road, Suite B Morgan Hill, California 95037 (408) 782-1133 ------------------------------------------ (Name, address, including zip code, and telephone number, including area code, of agent for service) Approximate date of commencement of proposed sale to public: From time to time after the Registration Statement becomes effective. -------------------------------- Exhibit Index Begins at Page II-5 CALCULATION OF REGISTRATION FEE ================================================================================ Title of Amount to be Proposed Proposed Amount of Securities Registered(1) Maximum Maximum Registration to be Offering Aggregate Fee Registered Price Per Offering Security(2) Price(2) - -------------------------------------------------------------------------------- Common Stock, 625,000 Shares $1.34 $837,500 $247. No par value ================================================================================ (1) This Registration Statement, pursuant to Rule 416, covers any additional shares of no par value Common Stock ("shares") which become issuable under the 1995 Stock Option Plan ("Plan") set forth herein by reason of any stock dividend, stock split, recapitalization or any other similar transaction without receipt of consideration which results in an increase in the number of shares outstanding. (2) Estimated solely for the purpose of computing the amount of the Registration fee under Rule 457 of the Securities Act of 1933, as amended. A total of 625,000 shares are issuable under the Plan at an offering price per share based upon the closing price of the Common Stock on the NASDAQ SmallCap Market on August 20, 1998 of $1.34 per share. ii
ORGANIC FOOD PRODUCTS, INC. PART I Cross Reference Sheet Required by Item 501 Item in Form S-8 Caption In Prospectus ---------------- --------------------- 1. General Plan Information.................... Cover Page; Issuer and Participating Employees; Description of the Plan; Tax Consequences 2. Registrant Information and Employee Plan Annual Information................................. Available Information 3. Incorporation of Documents by Reference................................ Incorporation of Documents by Reference 4. Description of Securities................... Description of Common Stock 5. Interests of Named Experts and Counsel................................. Counsel 6. Indemnification of Directors and Officers...................... SEC Position Regarding Indemnification 7. Exemption from Registration Claimed..................................... Not Applicable 8. Exhibits.................................... Not Applicable (See Part II, Item 8) 9. Undertakings................................ Not Applicable (See Part II, Item 9)
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Pursuant to the requirements of the Note to Part I of Form S-8 and Rule 428(b)(1) of the Rules under the Securities Act of 1933, as amended, the information required by Part I of Form S-8 is included in the Reoffer Prospectus which follows. The Reoffer Prospectus together with the documents incorporated by reference pursuant to Item 3 of Part II of this Registration Statement constitute the Section 10(a) Prospectus. iii REOFFER PROSPECTUS The material which follows, up to but not including the page beginning Part II of this Registration Statement, constitutes a prospectus, prepared on Form S-3, in accordance with General Instruction C to Form S-8, to be used in connection with resales of securities acquired under the Registrant's 1995 Stock Option Plan by directors of the Registrant, as defined in Rule 405 under the Securities Act of 1933, as amended. iv 625,000 SHARES COMMON STOCK ORGANIC FOOD PRODUCTS, INC. --------------- 1995 STOCK OPTION PLAN --------------- This Reoffer Prospectus ("Prospectus") relates to the offering by Organic Food Products, Inc. (the "Company") and the Company's employees, officers, directors and consultants of up to 625,000 shares (subject to adjustment in certain circumstances) of the Company's no par value Common Stock (the "Common Stock" or "shares"), purchasable by such employees, officers, directors and consultants pursuant to Common Stock options ("options") under the Company's 1995 Stock Option Plan (the "Plan"). As of the date hereof, 534,000 options issued under the Plan are outstanding. --------------- This Prospectus will be used by non-affiliates of the Company as well as persons who are "affiliates" (as that term is defined under the Securities Act of 1933) to effect resales of the shares. See "Selling Stockholders." The Company will receive no part of the proceeds of any such sales although it will receive the exercise price of the options. --------------- THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. --------------- No person is authorized to give any information or to make any representation not contained in this Prospectus in connection with the offer made hereby, and, if given or made, such information or representation must not be relied upon as having been authorized by the Company. The delivery of this Prospectus at any time does not imply that the information herein is correct as of the time subsequent to the date hereof. ---------------- The date of this Prospectus is August 26, 1998. 1 AVAILABLE INFORMATION --------------------- The Company is subject to the informational requirements of the Securities Exchange Act of 1934, as amended, including Sections 14(a) and 14(c) relating to proxy and information statements, and in accordance therewith files reports and other information with the Securities and Exchange Commission ("Commission"). Reports and other information filed by the Company can be inspected and copied at the public reference facilities maintained by the Commission at 450 Fifth Street N.W., Washington, D.C. 20549; 500 West Madison Street, Suite 1400, Chicago, Illinois 60661; 7 World Trade Center, New York, New York 10048; and 5670 Wilshire Boulevard, Los Angeles, California 90036. Copies of such material can be obtained from the Public Reference Section of the Commission, 450 Fifth Street N.W., Washington, D.C. 20549 at prescribed rates. The Company's Common Stock is traded on the NASDAQ SmallCap Market under the symbol "OFPI." Reports, proxy and information statements may also be inspected at the NASDAQ SmallCap Market offices, 1735 K Street Northwest, Washington, D.C. 20006. The Company furnishes annual reports to its shareholders which include audited financial statements. The Company may furnish such other reports as may be authorized, from time to time, by its Board of Directors. INCORPORATION BY REFERENCE Certain documents have been incorporated by reference into this Prospectus, either in whole or in part. The Company will provide without charge (i) to each person to whom a Prospectus is delivered, upon written or oral request of such person, a copy of any and all of the information that has been incorporated by reference (not including exhibits to the information unless such exhibits are specifically incorporated by reference into the information), and (ii) documents and information required to be delivered to the Company's directors pursuant to Rule 428(b). Requests for such information shall be addressed to the Company at 550 Monterey Road, Suite B, Morgan Hill, California 95037, (408) 782-1133. 2 TABLE OF CONTENTS ----------------- INTRODUCTION............................................................ 4 SELLING STOCKHOLDERS..................................................... 4 METHOD OF SALE........................................................... 5 SEC POSITION REGARDING INDEMNIFICATION................................... 5 DESCRIPTION OF THE PLAN.................................................. 5 APPLICABLE SECURITIES LAW RESTRICTIONS................................... 6 TAX CONSEQUENCES......................................................... 7 LEGAL MATTERS............................................................ 8 EXPERTS ................................................................ 8 3 INTRODUCTION Since 1987, the Company has manufactured and marketed pesticide-free ("organic") and preservative-free ("all natural") pasta sauces, salsas and condiments under the brand names "Garden Valley Naturals" and "Parrot." The Company began marketing its Parrot line of salsas in 1987, its Garden Valley Naturals line of condiments in 1991 and its Garden Valley Naturals line of pastas and salsas in 1994. In June 1996 the Company merged with Organic Foods Products, Inc. ("OFP"), which also marketed a line of organic food products (including pasta sauces and salsas, together with dry cut pastas and organic children's meals) under the "Millina's Finest" brand name. In August 1997 the Company completed an initial public offering of its securities ("IPO") selling 1,300,000 shares of its Common Stock to the public at $4.00 per share for gross proceeds of $5,200,000. In January 1998 the Company acquired Sunny Farms Juice Company, a manufacturer of branded beverages including natural juices and bottled water. All of the Company's products (with the exception of its pastas, kids' meals, organic mustards and beverages) are manufactured at the Company's 24,000 square foot processing and warehouse facility in Morgan Hill, California. See "Manufacturing Facilities." The Company sells its products either directly or through distributors or independent commissioned food brokers and specialty food brokers to (i) health food and specialty food stores, (ii) club stores and (iii) retail chain and independent grocery stores. SELLING STOCKHOLDERS This Prospectus covers possible sales by officers and directors of the Company (as well as employees whose names are not included herein) of shares they acquire through exercise of options granted under the Plan. The names of such officers and directors who may be Selling Stockholders from time to time are listed below, along with the number of shares of Common Stock currently owned by them and the number of shares offered for sale hereby. The number of shares offered for sale by such individuals may be updated in supplements to this Prospectus, which will be filed with the Securities and Exchange Commission in accordance with Rule 424(b) under the Securities Act of 1933, as amended. Number of Name of Selling Shareholdings Shares Offered Stockholder(1) Number Percent For Sale(*) - -------------- ------ ------- ----------- Kenneth A. Steel 354,691 4.85% 50,000 Charles B. Bonner 25,000 .3% 25,000 Charles R. Dyer 57,000 .8% 25,000 * Represents all shares issuable under the Plan 4 (1) The stockholders listed in the table have sole voting and investment powers with respect to the shares. Their addresses are in care of the Company. METHOD OF SALE Sales of the shares offered by this Prospectus will be made on the NASDAQ SmallCap Market, where the Company's Common Stock is listed for trading, in other markets where the Company's Common Stock may be traded or in negotiated transactions. Sales will be at prices current when the sales take place and will generally involve payment of customary brokers' commissions. There is no present plan of distribution. SEC POSITION REGARDING INDEMNIFICATION The Company's Article of Incorporation and Bylaws provide for indemnification of officers and directors, among other things, in instances in which they acted in good faith and in a manner they reasonably believed to be in, or not opposed to, the best interests of the Company and in which, with respect to criminal proceedings, they had no reasonable cause to believe their conduct was unlawful. Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to directors, officers or persons controlling the Company under the provisions described above, the Company has been informed that in the opinion of the Securities and Exchange Commission that indemnification is against public policy as expressed in that Act and is therefore unenforceable. DESCRIPTION OF THE PLAN In November 1995, the Company's Board of Directors (and subsequently its shareholders) approved the Plan for the benefit of employees, officers, directors and consultants of the Company. The Company believes that the Plan provides an incentive to individuals to act as employees, officers, directors and consultants of the Company and to maintain a continued interest in the operations and future of the Company. All options were issued under Section 422A of the Internal Revenue Code, and include qualified and non-qualified stock options. The terms of the Plan provide that the Company is authorized to grant options to purchase shares of Common Stock ("options" or "option shares") to employees, officers, directors and consultants of the Company upon the majority consent of the Company's Board of Directors acting as the Stock Option Committee ("Committee"). Any employee, officer, director or consultant of the Company is eligible to receive options under the Plan. The option price to be paid by optionees for shares under qualified stock options must not be less than the fair market value of the options shares as reported by the NASDAQ SmallCap Market on the date of the grant. (Fair market value is defined as the mean price between the bid and offer prices on the grant date.) The option price for nonqualified stock options must not be less than 100% of such fair market value. Options must be exercised within 10 years following the date of grant (or sooner 5 at the discretion of the Board of Directors), and the optionee must exercise options during service to the Company or within 90 days of termination of such service (12 months in the event of death on disability). The Board of Directors may accelerate the time at which the option is exercisable or extend the termination date of an option. A total of 625,000 shares of the Company's authorized but unissued Common Stock have been reserved for issuance pursuant to the Plan of which 534,000 options are currently outstanding at exercise prices ranging from $2.00 to $3.34 per share. Options under the Plan may not be transferred, except by will or by the laws of intestate succession. The number of shares and price per share of the options under the Plan will be proportionately adjusted to reflect forward and reverse stock splits. The holder of an option under the Plan has none of the rights of a shareholder until shares are issued. The Plan is administered by the Board of Directors, acting as the Committee, which has the power to interpret the Plan, determine which persons are to be granted options and the amount of such options. The provisions of the Federal Employee Retirement Income Security Act of 1974 do not apply to the Plan. Shares issuable upon exercise of options will not be purchased in open market transactions but will be issued by the Company from authorized shares. Payment for shares must be made by optionees in cash from their own funds. No payroll deductions or other installment plans have been established. No reports will be made to optionees under the Plan except in the form of updated information for the Prospectus. There are no assets administered under the Plan, and, accordingly, no investment information is furnished herewith. Shares issuable under the Plan may be sold in the open market, without restrictions, as free trading securities. No options may be assigned, transferred, hypothecated or pledged by the option holder. No person may create a lien on any securities under the Plan, except by operation of law. However, there are no restrictions on the resale of the shares underlying the options. The Plan will remain in effect until April, 2005 but may be terminated or extended by the Company's Board of Directors. Additional information concerning the Plan and its administrators may be obtained from the Company at the address and telephone number indicated under "Incorporation by Reference" above. APPLICABLE SECURITIES LAW RESTRICTIONS If the optionee is deemed to be an "affiliate" (as that term is defined under the Securities Act of 1933, as amended), the resale of the shares 6 purchased upon exercise of options covered hereby will be subject to certain restrictions and requirements. The Company's legal counsel may be called upon to discuss these applicable restrictions and requirements with any optionee who may be deemed to be an affiliate, prior to exercising an option. In addition to the requirements imposed by the Securities Act of 1933, the antifraud provisions of the Securities Exchange Act of 1934 and the rules thereunder (including Rule 10b-5) are applicable to any sale of shares acquired pursuant to options. Up to 625,000 shares may be issued under the Plan. The Company has authorized 20,000,000 shares of Common Stock of which 7,235,113 shares were outstanding as of June 30, 1998. Common shares outstanding and those to be issued upon exercise of options are fully paid and nonassessable, and each share of stock is entitled to one vote at all shareholders' meetings. All shares are equal to each other with respect to lien rights, liquidation rights and dividend rights. There are no preemptive rights to purchase additional shares by virtue of the fact that a person is a shareholder of the Company. Shareholders do not have the right to cumulate their votes for the election of directors unless a candidate's name has been placed in nomination prior to commencement of voting and a shareholder has given notice prior to commencement of the voting of the shareholder's intention to cumulate votes. Directors must comply with certain reporting requirements and resale restrictions pursuant to Sections 16(a) and 16(b) of the Securities Exchange Act of 1934 and the rules thereunder upon the receipt or disposition of any options. TAX CONSEQUENCES If an option is exercised and if the optionee does not dispose of the shares acquired pursuant to the exercise within two years of the date of the granting of the option nor within one year from the transfer of the shares pursuant to exercise of the options, then there will not be any federal income tax consequences to the Company from either the exercise of the option or the receipt of the proceeds with respect to the exercise of the option. In such circumstances, the optionee would not be required to recognize any taxable income upon the exercise of the option. Furthermore, the sale of the shares received pursuant to the exercise of the option would result in long-term capital gain or long-term capital loss to the optionee based on the difference between the amount received with respect to such sale and the amount paid upon the exercise of the option. If an optionee exercised an option and sold the shares acquired pursuant to such exercise either within two years from the date of the granting of the option or within one year from the date of the transfer of such shares to him pursuant to his exercise of the option, then in general the Company would be entitled to a deduction for federal income tax purposes equal to lessor of: (1) the fair market value of the stock on the date of exercise over the option price of the stock; or (2) the amount realized on disposition over the adjusted basis 7 of the stock. The optionee would recognize income equal to the amount of the Company's deduction. The Company's deduction would be allowed, and the optionee's income would be taxable, in the year the optionee disposed of the shares. However, if the disposition occurs within two years of the date of the grant and the disposition is a sale or exchange with respect to which a loss, if sustained, would be recognized (generally any disposition other than to a related party), then the optionee's income and the Company's deduction would not exceed the excess (if any) of the amount realized on such sale or exchange over the adjusted basis of such shares. The Company expects that optionees will be required to exercise their options within five years from the date of grant although optionees may hold the shares issuable upon exercise of the options indefinitely. For options exercised after 1987, an individual generally must include in alternative minimum taxable income the amount by which the option price paid is exceeded by the fair market value at the time the individual's rights to the shares are freely transferable or are not subject to a substantial risk of forfeiture. The alternative minimum tax is payable only if the alternative minimum tax exceeds the regular income tax liability. The provision of Section 401(a) of the Code, relating to "qualified" pension, profit sharing and stock bonus plans, do not apply to the options or underlying shares covered hereby. LEGAL MATTERS The validity of the shares of Common Stock offered hereby upon exercise of Options will be passed on for the Company by Gary A. Agron, 5445 DTC Parkway, Suite 520, Englewood, Colorado 80111. EXPERTS The financial statements of the Company incorporated by reference in the Company's Annual Report on Forms 10KSB for the years ended June 30, 1996 and 1997, were audited by Semple & Cooper LLP, independent public accountants, as indicated in their report with respect thereto, and are incorporated herein by reference. 8 PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 3. Incorporation of Documents by Reference The Registrant hereby incorporates by reference in this Registration Statement the following documents previously filed with the Securities and Exchange Commission: (a) The Registrant's Annual Report on Form 10KSB for the year ended June 30, 1997, filed pursuant to Section 13(a) of the Securities Exchange Act of 1934 (the "Exchange Act"); (b) The Registrant's Quarterly Report on Form 10-QSB for the quarters ended September 30, 1997, December 31, 1997 and March 31, 1998, filed pursuant to Section 13(a) of the Exchange Act; and (c) The description of the Registrant's Common Stock contained in the Registrant's Registration Statement on Form SB-2 under the Securities Act of 1933, as amended (Registration No. 333-22997), including any amendments or reports filed for the purpose of updating such description. (d) All other reports and subsequent reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended. All reports and definitive proxy or information statements filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Registration Statement and 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 at the time of such amendment will be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Item 4. Description of Securities. Not applicable. II-1 Item 5. Interests of Named Experts and Counsel. Not applicable. Item 6. Indemnification of Directors and Officers. Article IV of the Registrant's Articles of Incorporation provides as follows: "The liabilities of the directors of the corporation for monetary damages shall be eliminated to the fullest extent permissible under California law." Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended (the "1933 Act"), may be permitted to officers, directors or persons controlling the Company, the Company has been advised that, in the opinion of the Securities and Exchange Commission, Washington, D.C. 20549, such indemnification is against public policy as expressed in the 1933 Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the officer, director or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such officer, director or controlling person in connection with the securities being registered, the Company 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 1933 Act and will be governed by the final adjudication of such issue. Item 7. Exemption from Registration Claimed Not applicable. Item 8. Exhibits The following is a list of Exhibits filed as part of the Registration Statement: 4. 1995 Stock Option Plan. 4.1 Incentive Stock Option Agreement. 4.2 Nonqualified Stock Option Agreement. 5. Opinion of Gary A. Agron 24. Consent of Semple & Cooper, LLP, independent certified public accountants II-2 Item 9. Undertakings The 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; 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 Registration Statement; (3) that, for the purpose of determining any liability under the Securities Act of 1933, each 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; and (4) 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 Plan. The Registrant hereby undertakes to deliver or cause to be delivered with the prospectus to each person to whom the prospectus is sent or given, the latest annual report to security holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and, where interim financial information required to be presented by Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information. 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 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 against the Registrant 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. II-3 SIGNATURES Pursuant to the requirements of the 1933 Act, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements of filing on Form S-8 and has caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Morgan Hill, California, on August 10, 1998. ORGANIC FOOD PRODUCTS, INC. By: /s/ James F. Swallow ----------------------------------------- James F. Swallow, Chief Executive Officer Pursuant to the requirements of the 1933 Act, as amended, this Registration Statement has been signed below by the following persons on the dates indicated. [TOM TO UPDATE OFFICERS AND DIRECTORS.] Signature Title Date --------- ----- ---- /s/ James F . Swallow Chief Executive Officer August 10, 1998 - ----------------------------------- and Director James F. Swallow /s/ John Battendieri President and Director August 10, 1998 - ----------------------------------- John Battendieri /s/ David J. O'Gorman Chief Financial Officer August 10, 1998 - ----------------------------------- David J. O'Gorman /s/ Kenneth A. Steel, Jr. Director August 10, 1998 - ----------------------------------- Kenneth A. Steel, Jr. /s/ Charles B. Bonner Director August 10, 1998 - ----------------------------------- Charles B. Bonner /s/ Charles R. Dyer Director August 10, 1998 - ----------------------------------- Charles R. Dyer II-4 EXHIBIT INDEX ------------- Exhibit No. Exhibit Page No. ----------- ------- -------- 4. 1995 Stock Option Plan. 4.1 Incentive Stock Option Agreement. 4.2 Nonqualified Stock Option Agreement. 5. Opinion of Gary A. Agron. 24. Consent of Semple & Cooper, LLP, independent certified public accountants. 11-5 EX-4 2 1995 STOCK OPTION PLAN. 1995 STOCK OPTION PLAN OF S & D FOODS. INC., - -------------------------------------------------------------------------------- a California corporation I. PURPOSE. ------- The purpose of this 1995 Stock Option Plan (the "Plan") of S & D FOODS, INC., a California corporation (the "Company") is to encourage ownership in the Company by one or more key employees whose long-term employment is considered essential to the Company's continued progress and thus to provide such employee or employees with a further incentive to continue in the employ of the Company. The purpose of the Plan is to be carried out by issuing stock options ("Options") pursuant to the Plan. The purpose of the Plan is to be carried out by issuing incentive stock options and nonqualified options pursuant to the Plan (hereinafter referred to as "Options") to one or more key employees of the Company. It is intended that to the maximum extent permissible under the Plan, Options shall constitute incentive stock options ("Incentive Stock Options") within the meaning of Section 422 of the Internal Revenue Code (the "Code") and that to the extent not so permissible, such Options shall not constitute Incentive Stock Options ("Nonqualified Stock Options"). For purposes of the Plan, all references to a subsidiary or subsidiaries shall include only wholly-owned subsidiaries of the Company. II. ADMINISTRATION --------------- 1. Stock Option Committee. ----------------------- The Plan shall be administered by the Board of Directors of the Company (the "Board") sitting as a Stock Option Committee (the "Committee") 2. Duties and Powers of Committee. -------------------------------- The Committee shall conduct the general administration of the Plan in accordance with its provisions. The Committee shall from time to time at its discretion determine to whom Options shall be issued, whether such Options shall be Incentive Stock Options, Nonqualified Stock Options or both, the amount of stock to be optioned in each case, and the terms and conditions pursuant to which each Option shall be granted. The Committee shall have the power to interpret the Plan and the Options and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret, amend or revoke any such rules. Any such interpretations and rules shall be consistent with a purpose of the Plan to grant "incentive stock options" within the meaning of Section 422 of the Code to the maximum extent permissible under Section 422. The interpretation and construction by the Committee of any provisions of the Plan or of any Option shall be final. 3. Majority Rule. ------------- The Committee shall act by a majority of its members in office either by vote at a meeting or by a memorandum or other written instrument signed by a majority of the Committee. 4. Compensation; Professional Assistance; Good Faith Actions. --------------------------------------------------------- Members of the Committee shall not receive compensation for their services as members but all expenses and liabilities they incur in connection with the administration of the Plan shall be borne by the Company. The Committee may, with the approval of the Board, employ attorneys, consultants, accountants, appraisers, brokers or other persons. The Committee, the Company and its officers and directors shall be entitled to rely upon the advice, opinions or valuations of any such persons. All actions taken and all interpretations and determinations made by the Committee in good faith shall be final and binding upon all Optionees, the Company and all other interested persons. No member of the Committee shall be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or the Options and all members of the Committee shall be fully protected by the Company in respect to any such action, determination or interpretation. 2 III. MANDATORY REQUIREMENTS FOR STOCK OPTIONS. ---------------------------------------- Each Option shall be authorized by action of the Committee and shall be evidenced by a written agreement in such form as the Committee shall from time to time approve and shall comply with the following terms and conditions: 1. Stock Option Plan, Stock, Eligibility, and Shareholder Approval. --------------------------------------------------------------- a. Stock Option Plan. Options shall be granted pursuant to the Plan. ----------------- b. Stock. The stock subject to the Options shall. be shares of the Company's authorized but unissued or reacquired Common Stock, no par value ("Common Stock"). The aggregate number of shares which may be issued under Options shall not exceed Two Hundred Fifty Thousand (250,000) shares of Common Stock. The limitation established by the preceding sentence shall be subject to adjustment as provided in paragraph 4 of Article IV of the Plan. If any outstanding Option for any reason expires or is terminated, the shares of Common Stock allocable to the unexercised portion of such Option may again be subjected to an Option. c. Eligibility. ----------- (i) The persons who shall be eligible to receive Incentive Stock Options ("ISO Eligible Individuals") shall be such key employees of the Company as the Committee shall select from time to time. The holder of an Incentive Stock Option (an "Incentive Stock Optionee") may hold more than one Option, but only on the terms and subject to the restrictions hereinafter set forth. (ii) The persons who shall be eligible to receive Nonqualified Stock Options shall be such individuals whose participation the Committee determines is in the best interests of the Company. d. Shareholder Approval. The Plan shall not take effect until approved by the holders of a majority of the outstanding shares of capital stock of the Company, which approval must occur within the period beginning twelve months before and ending twelve months after the date the Plan is approved by the Board. 3 2. Term of Plan. ------------ Subject to Section 9 hereof, Incentive Stock Options may be granted pursuant to the Plan from time to time within ten (10) years from the date the Plan is approved by the Board, or the date the Plan is approved by the holders of a majority of the outstanding shares of capital stock of the Company, whichever is earlier. Nonqualified Stock Options may be granted pursuant to the Plan at any time, and the Plan shall not have any fixed termination date with respect to Nonqualified Stock Options. 3. Commencement of Exercisability. ------------------------------ Options shall become exercisable at such times and in such installments (which may be cumulative), if any, as the Committee shall provide in the terms of each individual Option; provided, however, that: a. By a resolution adopted after an Option is granted the Committee may, on such terms and conditions as it may determine to be appropriate, accelerate the time at which such Option or any portion thereof may be exercised. b. Unless an Option specifically provides to the contrary, such Option shall immediately become exercisable in full in the event of the consummation of any of the following transactions: (i) A merger or acquisition in which the Company is not the surviving entity; (ii) The sale, transfer or other disposition of all or substantially all of the assets of the Company; or (iii) Any merger in which the Company is the surviving entity but in which fifty percent (50~) or more of the Company's outstanding voting stock is issued to holders different from those who held the stock immediately prior to such merger. 4. Expiration of Option. -------------------- a. No Option may be exercised to any extent by anyone after the first to occur of the following events: (i) The expiration of ten years after the date the Option was granted; 4 (ii) Except in the case~ of any of any Optionee who is Permanently Disabled (as defined below), the expiration of three months after the date of the Optionee's Termination of Employment (as defined below) for any reason other than such Optionee's death unless the Optionee dies within such three-month period; (iii) In the case of an Optionee who is Permanently Disabled, the expiration of one year after the date of the Optionee's Termination of Employment for any reason other than such Optionee's death unless the Optionee dies within such one-year period; (iv) The expiration of one year after the date of the Optionee's death. b. Subject to the foregoing provisions of this paragraph 4, the Committee shall provide, in the terms of each individual Option, when such Option expires and becomes unexercisable; provided that the Committee may provide in the terms of such individual Option that said Option expires immediately upon a Termination of Employment for any reason. c. "Termination of Employment" shall mean the time when the employee-employer relationship between the Optionee and the Company or a subsidiary is terminated for any reason, including1 but not by a way of limitation, a termination by resignation, discharge, death or retirement, but excluding terminations where there is a simultaneous reemployment by the Company or a subsidiary. The Committee, in its absolute discretion, shall determine the effect of all other matters and questions relating to Termination of Employment, including, but not by way of limitation, the question of whether a termination of Employment resulted from a discharge for good cause, and all questions of whether particular leaves of absence constitute Terminations of Employment; provided, however, that a leave of absence shall constitute a Termination of Employment if, and to the extent that, such leave of absence interrupts employment for the purposes of Section 422 (a) (2) of the Code and the then applicable regulations and revenue rulings under such section. 5 d. "Permanently Disabled" shall mean the inability of the Optionee, while in the employ of the Company and under the age of sixty-five (65) years, to perform the Optionee's duties as such employee of the Company by reason of sickness or accident for a continuous period of more than nine (9) months. 5. Option Agreement. ---------------- Each Option shall be evidenced by a written stock option agreement, which shall be executed by the Optionee and an authorized officer of the Company and which shall contain such terms and conditions as the Committee shall determine, consistent with the Plan. 6. Option Price. ------------- a. Each Option shall state the purchase price of each share of Common Stock subject to the Option (the "Option Price"). The Option Price with respect to any Incentive Stock Option shall be not less than 100% of the fair market value of each share of Common Stock of the Company on the date such Incentive Stock Option is granted. Subject to the foregoing, the Committee shall have full authority and discretion to fix the Option Price. b. For the purpose of this paragraph 6, the fair market value of a share of Common Stock of the Company on the date of delivery to the Company's Secretary at his office shall be: (i) the closing price of a share of such class of Stock on the principal exchange on which shares of such class of Stock are then trading, if any, on such date, or, if such shares were not traded on such date, then on the next preceding trading day during which a sale occurred; or (ii) if such class of stock is not traded on an exchange but quoted on NASDAQ or a successor quotation system, (1) the last sale price (if the stock is then listed as a National market Issue under the NASD National Market System) or (2) the mean between the closing representative bid and asked prices (in all other cases) for the stock on such date as reported by NASDAQ or such successor quotation system; (iii) if such stock is not publicly traded on an exchange and not quoted on NASDAQ or a successor quotation system, the mean between the closing bid and asked prices for the stock on such date as determined in good 6 faith by the Committee; or (iv) if such stock is not publicly traded, the fair market value established by the Committee. 7. Restrictions on Transfer. ------------------------ a. An Option shall not be transferable by the Optionee otherwise than by will or the laws of descent and distribution, and is exercisable, during such Optionee's lifetime, only by such Optionee. If an Optionee shall die while in the employ of the Company and shall not have fully exercised any Option, such Option may be exercised, subject to the condition that no Option shall be exercisable after the expiration of ten years from the date it is granted, to the extent that such Optionee's right to exercise such Option had accrued at the time of his death and had not previously been exercised, at any time within one year after such Optionee's death, by the executors or administrators of such Optionee or by any person or persons who shall have acquired the Option directly from the Optionee by bequest or inheritance. b. The Committee, in its absolute discretion, may impose such restrictions on the transferability of the shares purchasable upon the exercise of an Option as it deem appropriate. 8. Certain Shareholders Not ISO Eligible Individuals. ------------------------------------------------- The term "ISO Eligible Individual" shall not include an individual who, at the time an Incentive Stock Option is granted, owns stock possessing more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or of its parent or any subsidiary corporation. This paragraph 8 of Article III shall not apply if at the time such Incentive Stock Option is granted the Option Price is at least one hundred ten percent (l0%) of the fair market value of the Common Stock subject to the Incentive Stock Option and such Incentive Stock Option is by its terms not exercisable after the expiration of five (5) years from the date such Incentive Stock Option is granted. For purposes of determining whether an Optionee owns more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or of its parent or any subsidiary corporation, stock owned by other persons and entities shall be attributed to such Optionee by operation of Section 424(d) of the Code. 7 9. Limitation on Aggregate Fair Market Value. ----------------------------------------- The aggregate fair market value (determined as of the time an Incentive Stock Option is granted) of the Common Stock with respect to which Incentive Stock Options are exercisable for the first time for any ISO Eligible Individual shall not exceed $100,000 during any calendar year, provided that notwithstanding any other provision of the Plan, if the foregoing limitation is exceeded for any calendar year, then the Options first exercisable during such calendar year in excess of such limitation shall be Nonqualified Options. IV. ADDITIONAL TERMS AND CONDITIONS. The Options shall comply with and be subject to the following additional terms and conditions: 1. Number of Shares. ---------------- Each Option shall state the number of shares to which it pertains. 2. Partial Exercise. ---------------- At any time and from time to time prior to the time when any exercisable Option or exercisable portion thereof becomes unexercisable under paragraph 4 of Article III or paragraph 4 of this Article IV, such Option or portion thereof may be exercised in whole or in part; provided, however, that the Company shall not be required. to issue fractional shares and the Committee may, by the terms of the Option, require any partial exercise to be with respect to a specified minimum number of shares. 3. Manner of Exercise. ------------------ a. An exercisable Option, or any exercisable portion thereof, may be exercised solely by delivery to the Company's Secretary or his office of all of the following prior to the time when such Option or such portion becomes unexercisable under paragraph 4 of Article III or paragraph 4 of this Article IV; 8 (i) Notice in writing signed by the Optionee or other person when entitled to exercise such Option or portion, stating that such Option or portion is exercised, such notice complying with all applicable rules established by the Committee; (ii) Full payment (in cash or by check) for the shares with respect to which such Option or portion is thereby exercised, or shares of Common Stock owned by the Optionee or other person then entitled to exercise such option or portion, duly endorsed for transfer to the Company with a fair market value (as determined under paragraph 6.b of Article III) on the date of delivery equal to the aggregate Option Price of the shares with respect to which such Option or portion is thereby exercised; (iii) Such representations and additional documents as the Committee, in its absolute discretion, deems necessary or advisable to effect compliance with all applicable provisions of the Securities Act of 1933, as amended, and any other federal or state securities laws or regulations. The Committee may, in its absolute discretion, also take whatever additional actions it deems appropriate to effect such compliance including, without limitation, placing legends on share certificates and issuing stop- transfer orders to transfer agents and registrars; and (iv) In the event that the Option or portion thereof shall be exercised pursuant to paragraph 7 of Article III by any person or persons other than the Optionee, appropriate proof of the right of such person or persons to exercise the Option or portion thereof. b. For the purpose of this paragraph 3, the fair market value of a share of Common Stock on the date of delivery to the Company's Secretary or his office shall be determined in accordance with Article III, Section 6.b. 4. Adjustments in Outstanding Options. ---------------------------------- a. If the outstanding shares of the capital stock of the Company are increased, decreased, or changed into, or exchanged for a different number or kind of shares or securities of the Company through reorganization, merger, recapitalization, reclassification, stock split, stock dividend, stock 9 consolidation, or otherwise, or the Company spins off to its shareholders a material amount of its assets, the Committee shall make an appropriate and proportionate adjustment in the number and kind of shares as to which Options may be granted. The Committee shall make a corresponding adjustment changing the number or kind of shares and the exercise price per share allocated to unexercised Options or portions thereof, which shall have been granted prior to any such change. Any such adjustment, however, in an outstanding Option shall be made without change in the total price applicable to the unexercised portion of the Option (except for any change in the aggregate price resulting from rounding-off of share quantities or prices) but with a corresponding adjustment in the price for each share covered by the Option. Any such adjustment made by the Committee shall be final and binding upon all Optionees, the Company and all other interested persons. b. Upon the dissolution or liquidation of the Company; or upon a reorganization, merger, or consolidation of the Company with one or more corporations as a result of which the Company is not the surviving corporation, or upon a sale of all or substantially all of the assets of the Company to another corporation, the Plan shall terminate, and any Option theretofore granted hereunder shall terminate, unless provision is made in connection with such transaction for the assumption of Options theretofore granted, or the substitution for such Options of new options covering the stock of a successor corporation, or a parent or subsidiary thereof, with appropriate adjustments as to number and kind of shares and prices; and the Committee may, in its absolute discretion and on such terms and conditions as it deems appropriate, provide, either by the terms of such Option or by a resolution adopted prior to the occurrence of such dissolution, liquidation, reorganization, merger, consolidation or sale of assets, that, for some period of time prior to such event, such Option shall be exercisable as to all shares covered thereby, notwithstanding anything to the contrary in paragraphs 3 and 4 of Article III or any installment provisions of such Option. 10 c. Adjustments under this paragraph 4 shall be made by the Committee, whose determination as to what adjustments shall be made and the extent thereof shall be final, binding, and conclusive; provided that no Incentive Stock Option shall be adjusted in a manner which causes such Incentive Stock Option to fail to qualify as an incentive stock option within the meaning of Section 422 of the Code. 5. Rights as a Shareholder. ----------------------- An Optionee or transferee of an Option shall have no rights as a shareholder with respect to any shares covered by his Option until the date of the issuance of a stock certificate to him for such shares. No adjustment shall be made for dividends (ordinary or extraordinary, whether in cash, securities or other property) or distributions or other rights for which the record date is prior to the date such stock certificate is issued, except as provided in paragraph 4 of this Article IV. 6. Modification Extension and Renewal of Options. --------------------------------------------- Subject to the terms and conditions and within the limitations of the Plan, the Committee may modify, extend or renew outstanding Options granted under the Plan (subject to the condition that no Incentive Stock Option shall be exercisable after the expiration of ten years from the date it is granted), or accept the surrender of outstanding Options (to the extent not theretofore exercised) and authorize the granting of new Options in substitution therefor. The Committee shall not, however, modify any outstanding Option so as to specify a lower price or accept the surrender of any outstanding Option and authorize the granting of a new Option in substitution therefor specifying a lower price. Notwithstanding the foregoing, however, no modification of an Option shall, without the consent of the Optionee, alter or impair any rights or obligations under any Option theretofore granted under the Plan. 11 7. Investment Purpose. ------------------ Each Option under the Plan shall be granted on the condition that the purchase of Common Stock thereunder shall be for investment purposes only, and not with a view to resale or for sale in connection with any distribution except that in the event the Common Stock subject to such Option is registered under the Securities Act of 1933 as amended, or in the event a resale of such Common Stock without such registration would otherwise be permissible, such condition shall be inoperative if in the opinion of counsel for the Company such condition is not required under the Securities Act of 1933 or any other applicable law, regulation, or rule of any governmental agency. 8. Consent of Commissioner of Corporations. --------------------------------------- No shares shall be issued upon exercise of any Option unless and until the Company shall obtain from the Commissioner of Corporations of the State of California such permit, if any, as may be required authorizing such issuance of shares. The Company shall at all times during the term of the Plan reserve and keep available such number of shares of Common Stock as will be sufficient to satisfy the requirements of the Options, shall pay all original issue and transfer taxes with respect to issue and transfer of shares pursuant hereto and all other fees and expenses necessarily incurred by the Company in connection therewith, and shall from time to time us~ its best efforts to comply with all laws and regulations which, in the opinion of counsel for the Company, shall be applicable thereto. 9. Securities Act of 1933. ---------------------- a. Notwithstanding anything to the contrary herein, each certificate representing shares issued to an Optionee hereunder, unless they have been registered under the Securities Act of 1933, as amended, shall bear a legend reading substantially as follows: "The shares represented by this certificate have been issued in a transaction exempt from the provisions of the Securities Act of 1933, as amended, and consequently no sale, offer to sell or transfer of the 12 shares represented by this certificate shall be made unless a registration under the federal Securities Act of 1933, as amended, with respect to said shares is then in effect or, in the opinion of legal counsel for the corporation, an exemption from registration requirements of such act is then in effect applicable to such shares." b. Each Option shall be issued subject to the condition that if at any time the Committee shall determine, in its discretion, that the registration or qualification of the shares covered by the Option under any state or federal law is necessary or desirable, delivery of any shares to the Optionee pursuant to exercise of the Option shall be deferred until such registration or qualification shall have been effected. In the event the Committee determines that such registration or qualification is necessary or desirable, the Company shall, at its expense, take such action as may be required to effect such registration or qualification. 10. Other Provisions. ---------------- Each Option shall contain such other provisions, including, without limitation, restrictions upon the exercise of the Option, as the Committee shall deem advisable. Each Incentive Stock Option shall contain such limitations and restrictions upon the exercise of the Incentive Stock Option as shall be necessary in order that such Incentive Stock Option will be an "incentive stock option" as defined in Section 422 of the Code or to conform to any change in the law. V. INDEMNIFICATION OF COMMITTEE. ---------------------------- In addition to such other rights of indemnification as they may have as directors or as members of the Committee, the members of the Committee shall be indemnified by the Company against the reasonable expenses, including attorneys' fees actually and necessarily incurred in connection with the defense of any action, suit or proceeding, or in connection with any appeal therein, to which they or any of them may be a party by reason of any action taken or failure to act under or in connection with the Plan or any Option granted thereunder, and 13 against all amounts paid by them in settlement thereof (provided such settlement is approved by independent legal counsel selected by the Company) or paid by them in satisfaction of a judgment in any such action, suit or proceeding, except in relation to matters as to which it shall be adjudged in such action, suit or proceeding that such Committee member is liable for gross negligence or misconduct in the performance of his duties; provided that within 60 days after institution of any such action, suit or proceeding a Committee member shall in writing offer the Company the opportunity, at its own expense, to handle and defend the same. VI. AMENDMENT OF THE PLAN. ---------------------- The Committee may, insofar as permitted by law, from time to time, with respect to any shares at the time not subject to Options, suspend or discontinue the Plan or revise or amend it in any respect whatsoever except that, without approval of the shareholders, no such revision or amendment shall change the number of shares subject to the Plan, change the designation of the classes of persons eligible to receive Options, or decrease the price at which Options may be granted. Furthermore, the Plan may not, without the approval of the shareholders, be amended in any manner that will cause Incentive Stock Options issued under it to fail to meet the requirements of incentive stock options as defined in Section 422 of the Code. VII. APPLICATION OF FUNDS. -------------------- The proceeds received by the Company from the sale of Common Stock pursuant to Options will be used for general corporate purposes. VIII. NO OBLIGATION TO EXERCISE OPTION. -------------------------------- The granting of an Option shall impose no obligation upon the Optionee to exercise such Option. 14 IX. LIMITATION OF RIGHTS -------------------- 1. No Right to an Option. --------------------- Nothing in the Plan shall be construed to give any person any right to be granted an Option. 2. No Employment Right. ------------------- Neither the Plan, nor the granting of an Option nor any other action taken pursuant to the Plan, shall constitute or be evidence of any agreement or understanding, express or implied, that the Company will employ an Optionee for any period of time or in any position, or at any particular rate of compensation. 3. No Rights Granted. ----------------- The grant of any Option pursuant to this Plan shall not affect in any way the right or power of the Company to make adjustments, reclassifications, reorganizations, or changes in its capital or business structure or to merge, consolidate, dissolve, liquidate, or sell or transfer all or any part of its assets or business. X. EFFECT OF PLAN UPON OTHER OPTIONS AND COMPENSATION PLANS. -------------------------------------------------------- The adoption of the Plan shall not affect any other compensation or incentive plans in effect for the Company or any subsidiary of the Company. Nothing in the Plan shall be construed to limit the right of the Company or any subsidiary of the Company (a) to establish any other forms of incentives or compensation for employees of the Company or any subsidiary of the Company or (b) to grant or assume options otherwise than under the Plan in connection with any proper corporate purpose, including, but not be way of limitation, the grant or assumption of options in connection with the acquisition by purchase, lease, merger, consolidation or otherwise, of the business, stock or assets of any corporation, firm or association. 15 Article III, Section l.b, of the 1995 Stock Option Plan was amended on June 24, 1996, to increase the aggregate number of shares which may be issued under Options to 525,000. It was subsequently amended on February 1, 1997, to increase the aggregate number of shares which may be issued under Options to 625,000. 16 EX-4.1 3 INCENTIVE STOCK OPTION AGREEMENT STOCK OPTION AGREEMENT ---------------------- (Incentive Stock Option) THIS STOCK OPTION AGREEMENT is made as of __________ between ORGANIC FOOD PRODUCTS, INC. a California corporation ("Company"), and __________________ ("Optionee"), under the following circumstances: A. Optionee is a key employee of Company whose knowledge of the operations of Company and expertise is instrumental for Company. B. Company has established its 1995 Stock Option Plan (the "Plan"), a copy of which is attached hereto. The Board of Directors of Company, sitting as the Stock Option Committee under the Plan, has approved the issuance of the stock option described herein to Optionee. C. In accordance with Article III, Section 9 of the Plan, the parties hereto intend that to the maximum extent permissible, the option described herein shall be an incentive stock option (an "lncentive Stock Option") as described in Section 422 of the Internal Revenue Code (the "Code"). NOW, THEREFORE, the parties hereto agree as follows: 1. Grant of Option. In consideration of Optionee's continuing to render services to Company, Company hereby grants Optionee an option to purchase _________________ shares of Company's Common Stock (the "Shares"). This option is granted upon the following terms and conditions: a. Vesting. This option vests according to the following schedule: Number of Shares Vesting Date ---------------- ------------ Notwithstanding the foregoing, the option shall become immediately exercisable as to all of the Shares during the ten (10) day period immediately preceding a change in control (as defined below). Company shall give Optionee written notice of a proposed change in control at least ten (10) days prior to a scheduled change in control, during which time Optionee may exercise the option as to all of the Shares. For purposes of this paragraph, change in control shall mean (i) consolidation or merger of Company in which Company is not the surviving entity, or (ii) the sale of substantially all of the assets of Company. b. Option Price. The option price shall be $_______ per share. c. Restriction on Transfer. This option is not transferable by Optionee otherwise than by will or the laws of descent and distribution applicable upon Optionee's death and is exercisable, during Optionee's lifetime, only by Optionee. This option may not be transferred, assigned, pledged, or hypothecated by Optionee during Optionee's lifetime, whether by operation of law or otherwise, and is not subject to execution, attachment or similar process. If an attempted transfer, assignment, pledge, or hypothecation is made in violation of this provision, then Optionee's rights under this Stock Option Agreement shall automatically terminate without notice. d. Term. Unless earlier terminated as herein provided, this option shall expire and terminate ten (10) years from the date hereof. e. Exercise After Termination of Employment. Except as otherwise provided herein, all rights of Optionee under this option, to the extent that it has not been exercised, shall terminate upon the termination of Optionee' 5 employment for any reason (including without limitation death or disability). If Optionee's employment is terminated by Optionee or Company, then except as hereinafter provided, for a period of ninety (90) days following the date of such employment termination, Optionee shall retain the right to exercise all or a portion of the rights accrued under subparagraph 1.a above as of the date of employment termination. f. Exercise After Death or Disability. If Optionee's employment is terminated by reason of Optionee's death or Optionee's permanent disability, as defined in Section 22(e) of the Code or in any successor statute or regulation, or if Optionee dies within three (3) months after any other termination of his employment, then for a period of one (1) year after Optionee dies or becomes permanently disabled this option may be exercised as to all or a portion of the rights accrued under subparagraph 1.a above as of the date of employment termination. g. Manner of Exercise. This option shall be exercised by delivering to the Company at its principal office a written notice stating the number of shares as to which the option is exercised. The written notice must be accompanied by payment of the full option price for such shares in cash. h. Additional Documents. Optionee shall make such representations and execute such additional documents as Company, in its absolute discretion, deems necessary or advisable to effect compliance with all applicable provisions of the Securities Act of 1933, as amended, and any other federal or state securities laws or regulations. Such representations may include the representation of Optionee that the purchase of Common Stock, under this Option, shall be for investment purposes only and not with a view to resale or for sale in connection with any distribution. i. Stock Option Plan. This option is granted pursuant to the Plan and is subject to the terms, conditions and limitations in the Plan. The terms "an Optionee" and "such Optionee" and similar references in the Plan shall mean the Optionee under this Agreement. The terms "an Option," "any Option," "such Optionee's Options," "such Options" and "each Option" and similar references in the Plan shall mean the option granted pursuant to this Agreement. 2 j. Representations of Optionee. Optionee acknowledges and represents to Company that Optionee, as a key employee of Company, (i) has had full access to the books and records of Company concerning the operations and financial condition of Company, (ii) is fully aware of Company's operations and financial condition, and (iii) is satisfied that he has obtained any and all information about Company that he desires in connection with the issuance of this option. 2. No Stockholder Rights. Optionee shall have no rights as a stockholder with respect to the shares covered by this option until the date of the issuance to him or her of a stock certificate or certificates therefor, and no adjustment will be made for dividends or other rights for which the record date is prior to the date such certificate is issued. 3. No Employment Agreement. The granting of this option shall not constitute or be evidence of any agreement or understanding, express or implied, that Company will employ Optionee for any period of time or in any position, or at any particular rate of compensation. 4. Adjustment of Number of Shares. In the event of any reorganization, recapitalization, stock dividend, stock split, or a merger or consolidation of Company with another corporation in which Company is the surviving corporation, or other change in the corporate structure or capitalization affecting Company's present capital stock (each, a "Capital Event"), appropriate adjustment shall be made by the Board of Directors in the number and kind of shares, and the option price of shares which are or may become subject to options granted or to be granted hereunder so that Optionee may receive, on exercise of this option, the number of shares of Company to which Optionee would have been entitled on such Capital Event if this option had been exercised immediately before such Capital Event. Any determination or interpretation made by the Board of Directors in connection with this provision shall be final and binding upon Company and Optionee. 5. Notice. Any notice required or permitted under this Agreement shall be given in writing by personal delivery or upon deposit in the United States mall, by registered or certified mall, addressed to Optionee at the address shown on Company's employment records and to Company at the address of its principal corporate offices (attention: President) or at such other address as such party may designate by written notice to the other party hereto. 6. Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California. 7. Entire Agreement. This Agreement (including the Plan, which is attached hereto) constitutes the full and entire understanding and agreement between the parties and supersedes all prior agreements with respect to the subject matter hereof. No amendment or modification of this Agreement shall be binding unless set forth in writing and signed by each party hereto. 3 IN WITNESS WHEREOF, the parties hereto have executed this Stock Option Agreement as of the day and year first hereinabove written. ORGANIC FOOD PRODUCTS, INC., a California corporation By: ---------------------------------------- Its: --------------------------------------- "Company" --------------------------------------- "Optionee" 4 EX-4.2 4 NONQUALIFIED STOCK OPTION AGREEMENT STOCK OPTION AGREEMENT ---------------------- (Non-Qualified Stock Option) THIS STOCK OPTION AGREEMENT is made as of , between ORGANIC FOOD PRODUCTS, INC. a California corporation ("Company"), and _________________________ ("Optionee"), under the following circumstances: A. Optionee is a [member of the Board of Directors/consultant] of Company. B. Company has established its 1995 Stock Option Plan (the "Plan"), a copy of which is attached hereto. The Board of Directors of Company, sitting as the Stock Option Committee under the Plan, has approved the issuance of the stock option described herein to Optionee. C. Optionee desires that Company grant Optionee such stock option. NOW, THEREFORE, the parties hereto agree as follows: 1. Grant of Option. In consideration of Optionee's continuing to render services to Company, Company hereby grants Optionee an option to purchase ______________ (__________) shares of Company's Common Stock (the "Shares"). This option is granted upon the following terms and conditions: a. Vesting. This option vests according to the following schedule: Number of Shares Vesting Date ---------------- ------------ Notwithstanding the foregoing, the option shall become immediately exercisable as to all of the Shares during the ten (10) day period immediately preceding a change in control (as defined below). Company shall give Optionee written notice of a proposed change in control at least ten (10) days prior to a scheduled change in control, during which time Optionee may exercise the option as to all of the Shares. For purposes of this paragraph, change in control shall mean (i) consolidation or merger of Company in which Company is not the surviving entity, or (ii) the sale of substantially all of the assets of Company. b. Option Price. The option price shall be $__________ per share. c. Restriction on Transfer. This option is not transferable by Optionee otherwise than by will or the laws of descent and distribution applicable upon Optionee's death and is exercisable, during Optionee's lifetime, only by Optionee. This option may not be transferred, assigned, pledged, or hypothecated by Optionee during Optionee's lifetime, whether by operation of law or otherwise, and is not subject to execution, attachment or similar process. If an attempted transfer, assignment, pledge, or hypothecation is made in violation of this provision, then Optionee's rights under this Stock Option Agreement shall automatically terminate without notice. d. Term. Unless earlier terminated as herein provided, this option shall expire and terminate ten (10) years from the date hereof. e. Exercise After Termination of Relationship.Except as otherwise provided herein, all rights of Optionee under this option, to the extent that it has not been exercised, shall terminate upon the termination of Optionee' 5 employment or Optionee's service to Company as a director or consultant for any reason (including without limitation death or disability). If Optionee's employment is terminated by Optionee or Company or Optionee's service to Company as a director or consultant is terminated, then except as hereinafter provided, for a period of ninety (90) days following the date of such termination, Optionee shall retain the right to exercise all or a portion of the rights accrued under subparagraph 1.a above as of the date of termination. f. Exercise After Death or Disability. If Optionee's employment or Optionee's service as a director or consultant is terminated by reason of Optionee's death or Optionee's permanent disability, as defined in Section 22(e) of the Code or in any successor statute or regulation, or if Optionee dies within three (3) months after any other such termination, then for a period of one (1) year after Optionee dies or becomes permanently disabled this option may be exercised as to all or a portion of the rights accrued under subparagraph 1.a above as of the date of such termination. g. Manner of Exercise. This option shall be exercised by delivering to the Company at its principal office a written notice stating the number of shares as to which the option is exercised. The written notice must be accompanied by payment of the full option price for such shares in cash. h. Additional Documents. Optionee shall make such representations and execute such additional documents as Company, in its absolute discretion, deems necessary or advisable to effect compliance with all applicable provisions of the Securities Act of 1933, as amended, and any other federal or state securities laws or regulations. Such representations may include the representation of Optionee that the purchase of Common Stock, under this Option, shall be for investment purposes only and not with a view to resale or for sale in connection with any distribution. i. Stock Option Plan. This option is granted pursuant to the Plan and is subject to the terms, conditions and limitations in the Plan. The terms "an Optionee" and "such Optionee" and similar references in the Plan shall mean the Optionee under this Agreement. The terms "an Option," "any Option," "such Optionee's Options," "such Options" and "each Option" and similar references in the Plan shall mean the option granted pursuant to this Agreement. 2 j. Representations of Optionee. Optionee acknowledges and represents to Company that Optionee, as a director of Company, (i) has had full access to the books and records of Company concerning the operations and financial condition of Company, (ii) is fully aware of Company's operations and financial condition, and (iii) is satisfied that he has obtained any and all information about Company that he desires in connection with the issuance of this option. 2. No Stockholder Rights. Optionee shall have no rights as a stockholder with respect to the shares covered by this option until the date of the issuance to him or her of a stock certificate or certificates therefor, and no adjustment will be made for dividends or other rights for which the record date is prior to the date such certificate is issued. 3. No Employment Agreement. The granting of this option shall not constitute or be evidence of any agreement or understanding, express or implied, that Company will employ or engage Optionee for any period of time or in any position, or at any particular rate of compensation. 4. Adjustment of Number of Shares. In the event of any reorganization, recapitalization, stock dividend, stock split, or a merger or consolidation of Company with another corporation in which Company is the surviving corporation, or other change in the corporate structure or capitalization affecting Company's present capital stock (each, a "Capital Event"), appropriate adjustment shall be made by the Board of Directors in the number and kind of shares, and the option price of shares which are or may become subject to options granted or to be granted hereunder so that Optionee may receive, on exercise of this option, the number of shares of Company to which Optionee would have been entitled on such Capital Event if this option had been exercised immediately before such Capital Event. Any determination or interpretation made by the Board of Directors in connection with this provision shall be final and binding upon Company and Optionee. 5. Notice. Any notice required or permitted under this Agreement shall be given in writing by personal delivery or upon deposit in the United States mail, by registered or certified mail, addressed to Optionee at the address shown on Company's employment records and to Company at the address of its principal corporate offices (attention: President) or at such other address as such party may designate by written notice to the other party hereto. 6. Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California. 7. Entire Agreement. This Agreement (including the Plan, which is attached hereto) constitutes the full and entire understanding and agreement between the parties and supersedes all prior agreements with respect to the subject matter hereof. No amendment or modification of this Agreement shall be binding unless set forth in writing and signed by each party hereto. 3 IN WITNESS WHEREOF, the parties hereto have executed this Stock Option Agreement as of the day and year first hereinabove written. ORGANIC FOOD PRODUCTS, INC., a California corporation By: -------------------------------------- Its: ------------------------------------- "Company" ------------------------------------- "Optionee" 4 EX-5 5 OPINION OF GARY A. AGRON August 10, 1998 Organic Food Products, Inc. 550 Monterey Blvd., Suite B Morgan Hill, California 95037 Gentlemen: We have assisted in the preparation and filing by Organic Food Products, Inc. (the "Company") of a Registration Statement on Form S-8 (the "Registration Statement") with the Securities and Exchange Commission relating to 625,000 shares of no par value Common Stock (the "Option Shares") of the Company issuable upon exercise of options granted under the Company's 1995 Stock Option Plan, as amended (the "Option"). We have examined such records and documents and have made such examination of laws as we considered necessary to form a basis for the opinions set forth herein. In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and the conformity with the originals of all documents submitted to us as copies thereof. Based upon and subject to the foregoing, we are of the opinion that the Option Shares have been duly authorized and reserved for issuance and such Option Shares, when issued in accordance with the terms of the Option against payment therefor, will be duly and validly issued, fully paid and nonassessable. The foregoing assumes that all requisite steps will be taken to comply with the requirements of the Securities Act of 1933, as amended, and applicable state laws relating to the offer and sales of securities. We consent to the filing of a copy of this opinion in the Registration Statement and the use of our opinion in connection therewith. Very truly yours, Gary A. Agron EX-24 6 CONSENT OF SEMPLE & COOPER, LLP SEMPLE & COOPER, LLP BDO Certified Public Accountants and Consultants SEIDMAN ================================================================================ 2700 North Central Avenue, Eleventh Floor, Phoenix, Arizona 85004 - ALLIANCE Tel 602-241-1500 - FAX 602-234-1867 CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS --------------------------------------------------- As independent certified public accountants, we hereby consent to the inclusion by reference of our report dated September 24, 1997, on the financial statements of Organic Food Products, Inc. for the year ended June 30, 1997, in the Company's Form S-8 Registration Statement. /s/ Semple & Cooper, LLP - ------------------------------- Semple & Cooper, LLP Phoenix, Arizona August 21, 1998 INDEPENDENT MEMBER OF THE BDO SEIDMAN ALLIANCE -----END PRIVACY-ENHANCED MESSAGE-----