exhibit_4-5.htm


    
 

    
      

      

    

    
 EXHIBIT 4.5

    OVERHILL
FARMS, INC.

     

    AMENDED
AND RESTATED 2002 EMPLOYEE STOCK OPTION PLAN

     

    STOCK
OPTION AGREEMENT

     

        Unless
otherwise defined herein, the terms defined in the Amended and Restated 2002
Employee Stock Option Plan of Overhill Farms, Inc. (“Plan”) shall have the
same defined meanings in this Stock Option Agreement (“Option
Agreement”).

    


    
      	
              I.

            	
              NOTICE
      OF GRANT OF STOCK PURCHASE RIGHT

            


    

    


    
      	 
      	
              Name:

            	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
              Address:

            	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      


    

     

        The
undersigned Optionee has been granted an Option to purchase Common Stock of the
Company, subject to the terms and conditions of the Plan and this Option
Agreement, as follows:

    


    
      	 
      	
              Grant
      Number

            	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
              Date
      of Grant

            	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
              Exercise
      Price per Share

            	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
              Total
      Number of Shares

            	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
              Total
      Exercise Price

            	 
      	 
      	 
      


    

    


    
      	 
      	
              Type
      of Option:

            	 
      	 
      	 
      	
              Incentive
      Stock Option

            
	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	
              Nonqualified
      Stock Option

            


    

    


    
      	 
      	
              Term/Expiration
      Date:

            	 
      	 
      


    

     

        Vesting
Schedule:

     

        Subject to
the terms and conditions of the Plan, this Option shall vest and become
exercisable according to the following schedule:

     

        [insert
vesting schedule].


    
      
         


      

      
         


        
          

        

      

      
         


      

    


        Termination
Period:

     

        Any
unexercised portion of this Option shall automatically and without notice
terminate and become null and void, after the earliest to occur of the
following:

     

                (a) six (6) months
following the death or Disability of the Optionee;

     

                (b) thirty (30) days
following the date on which the Optionee ceases to be an Eligible Person for any
reason other than death, Disability, or 

        termination
for Cause; or

     

                (c) immediately upon
the termination of an Optionee as an Eligible Person for Cause.

     

        In no event,
however, shall the periods described above extend beyond the Term/Expiration
Date provided above or beyond the expiration of ten (10) years from the Date of
Grant.

    


    
      
        	
                II.

              	
                AGREEMENT

              


      

    

    


        1.  Grant of Option. The
Committee (or the Disinterested Committee, if applicable) hereby grants to the
Optionee named in the Notice of Grant (the “Optionee”), an option
(this “Option”)
to purchase the number of Shares set forth in the Notice of Grant, at the
exercise price per Share set forth in the Notice of Grant (the “Exercise Price”), and
subject to the terms and conditions of the Plan, which is incorporated herein by
reference, and this Option Agreement. In the event of a conflict between the
terms and conditions of the Plan and this Option Agreement, the terms and
conditions of the Plan shall prevail.

     

        If designated
in the Notice of Grant as an Incentive Stock Option (“ISO”), this Option is
intended to qualify as an Incentive Stock Option as defined in Section 422
of the Code. Nevertheless, to the extent that it exceeds the $100,000 rule of
Code Section 422(d), this Option shall be treated as a Nonqualified Stock Option
(“NSO”).

     

        2.      Exercise of
Option.

     

                (a) Right to Exercise. This Option
shall vest and become exercisable during its term in accordance with the Vesting
Schedule set out in the Notice of Grant and with the applicable provisions of
the Plan and this Option Agreement.

     

                (b) Method of Exercise. This Option
shall be exercisable by delivery of an exercise notice in the form attached as
Exhibit A
(the “Exercise
Notice”), which shall state the election to exercise this Option, the
number of Shares with respect to which this Option is being exercised (“Exercised Shares”),
and such other representations and agreements as may be required by the Company.
The Exercise Notice shall be accompanied by payment of the aggregate Exercise
Price as to all Exercised Shares. This Option shall be deemed to be exercised
when (i) the Company has received a fully executed Exercise Notice, (ii) full
payment of the aggregate Exercise Price for the Exercised Shares has been made,
and (iii) arrangements that are satisfactory to the Committee (or the
Disinterested Committee, if applicable) in its sole discretion


    
      
        
          
            	
                     

                  	
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     have
been made for the Optionee’s payment to the Company of the amount, if any, that
the Committee (or the Disinterested Committee, if applicable) determines to be
necessary for the Company or a Subsidiary to withhold in accordance with
applicable federal or state income tax withholding requirements.

     

        No Shares
shall be issued pursuant to the exercise of an Option unless the issuance and
the exercise complies with all applicable laws, as determined by the Committee
(or the Disinterested Committee, if applicable) in its sole discretion. Assuming
such compliance, for income tax purposes the Shares shall be considered
transferred to the Optionee on the date on which the Option is exercised with
respect to the Shares.

     

        3.      Optionee’s
Representations.  If the issuance of the Shares is not
registered under the Securities Act of 1933 (“Securities Act”) at
the time this Option is exercised, then the Optionee shall, if requested by the
Company, deliver to the Company his or her Investment Representation Statement
in the form attached hereto as Exhibit
B.

     

        4.     
Method of Payment.
Payment of the aggregate Exercise Price shall be by any of the following, or a
combination thereof, at the election of the Optionee:

     

                (a)
cash;

     

                (b) certified or
cashier’s check payable to the order of the Company;

     

                (c) other Shares
which have a Fair Market Value on the date of surrender equal to the aggregate
Exercise Price of the Shares as to which 

        this Option
will be exercised; or

     

                (d) any other
consideration and method of payment for the issuance of Shares to the extent
permitted by applicable laws and authorized by 

        the Committee
(or the Disinterested Committee, if applicable).

     

        5.     
Restrictions on Exercise.
This Option may not be exercised until such time as the Plan has been approved
by the stockholders of the Company, or if the issuance of the Shares upon
exercise or the method of payment of consideration for the Shares would
constitute a violation of any applicable law.

     

        6.     
Non-Transferability of
Option. This Option may not be transferred in any manner otherwise
than by will or by the laws of descent or distribution and may be exercised
during the lifetime of Optionee only by Optionee or his guardian or legal
representative. The terms of the Plan and this Option Agreement shall be binding
upon the executors, administrators, heirs, successors and assigns of the
Optionee.

     

        7.     
Term of Option. This
Option may be exercised only within the term set out in the Notice of Grant, and
may be exercised during such term only in accordance with the Plan and the terms
of this Option Agreement.


    
      
        
          
            	
                     

                  	
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        8.      Tax
Obligations.

     

                (a) Withholding Taxes. The Optionee
agrees to make appropriate arrangements with the Company (or the Subsidiary
employing or retaining Optionee) for the satisfaction of all federal, state,
local and foreign income and employment tax withholding requirements applicable
to the Option exercise. The Optionee acknowledges and agrees that the Company
may refuse to honor the exercise and refuse to deliver Shares if the withholding
amounts are not delivered at the time of exercise.

     

                (b) Notice of Disqualifying Disposition of ISO
Shares. If this Option is an ISO, and if the Optionee sells or
otherwise disposes of any of the Shares acquired pursuant to the ISO on or
before the later of (i) the date two (2) years after the Date of Grant, or
(ii) the date one (1) year after the date of exercise, the Optionee shall
immediately notify the Company in writing of the disposition. The Optionee
agrees that the Optionee may be subject to income tax withholding by the Company
on the compensation income recognized by the Optionee.

     

        9.     
Entire Agreement. The
Plan is incorporated herein by reference. The Plan and this Option Agreement
constitute the entire agreement of the parties with respect to the subject
matter hereof and supersede in their entirety all prior undertakings and
agreements of the Company and the Optionee with respect to the subject matter
hereof, and may not be modified adversely to the Optionee’s interest except by
means of a writing signed by the Company and the Optionee.

     

        10.   Governing Law. The corporate
laws of the State of Nevada shall govern all issues concerning the relative
rights of the Company and its security holders under this Stock Option
Agreement. All other questions and obligations under this Option Agreement shall
be construed and enforced in accordance with the internal laws of the State of
California, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of California or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of California. In any action, dispute, litigation or other proceeding
concerning this Option Agreement (including arbitration), exclusive jurisdiction
shall be with the courts of California, with the County of Los Angeles being the
sole venue for the bringing of the action or proceeding.

     

        11.   
No Guarantee of Continued
Service. THE OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF
SHARES PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING AS
AN ELIGIBLE PERSON AT THE WILL OF THE COMPANY (NOT THROUGH THE ACT OF BEING
HIRED, BEING GRANTED THIS OPTION OR ACQUIRING SHARES HEREUNDER). THE OPTIONEE
FURTHER ACKNOWLEDGES AND AGREES THAT THIS OPTION AGREEMENT, THE TRANSACTIONS
CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT
CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS AN ELIGIBLE
PERSON FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND SHALL NOT
INTERFERE IN ANY WAY WITH THE OPTIONEE’S RIGHT OR THE COMPANY’S RIGHT TO
TERMINATE THE OPTIONEE’S RELATIONSHIP AS AN ELIGIBLE PERSON AT ANY TIME, WITH OR
WITHOUT CAUSE.


    
      
        
          
            	
                     

                  	
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        The Optionee
acknowledges receipt of a copy of the Plan and represents that he or she is
familiar with the terms and provisions thereof, and hereby accepts this Option
subject to all of the terms and provisions thereof. The Optionee has reviewed
the Plan and this Option in their entirety, has had an opportunity to obtain the
advice of counsel prior to executing this Option and fully understands all
provisions of this Option. The Optionee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Committee (or the
Disinterested Committee, if applicable) upon any questions arising under the
Plan or this Option. The Optionee further agrees to notify the Company upon any
change in the residence address indicated below.

        

        IN WITNESS
WHEREOF, the Company has caused this Option Agreement to be duly executed by its
officer thereunto duly authorized, and the Optionee has hereunto set his or her
hand, on the respective dates set forth below, to memorialize the grant of the
Option that occurred as of the Date of Grant set forth in the above Notice of
Grant.

    


    
      	
              OPTIONEE

            	 
      	
              OVERHILL
      FARMS, INC.

            


    

    


    
      
        
          	 
      	 
      	
                  By:

                	 
      
	
                  Signature

                	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	
                  Title:

                	 
      
	
                  Print
      Name

                	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	
                  Date:

                	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	
                  Residence
      Address

                	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	
                  Social
      Security Number/Taxpayer ID

                	 
      	 
      	 
      


        

      

    

    


    


    
      	
              Date:

            	 
      	 
      


    

    


    


    



    
      
        
          
            	
                     

                  	
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    EXHIBIT
A

     

    AMENDED
AND RESTATED 2002 EMPLOYEE STOCK OPTION PLAN

     

    EXERCISE
NOTICE

    


    Overhill
Farms, Inc.

    2727 East
Vernon Avenue

    Vernon,
California 90058

    Attention:
Corporate Secretary

     

        1.  Exercise of Option.
The undersigned (“Optionee”) hereby
elects to exercise Optionee’s option (the “Option”) by
purchasing _________ shares of the common stock (the “Shares”) of Overhill
Farms, Inc. (the “Company”) under and
pursuant to the Amended and Restated 2002 Employee Stock Option Plan (the
“Plan”) and the
Stock Option Agreement dated ____________, 20___ (the “Option Agreement”).
Capitalized terms not otherwise defined in this Exercise Notice shall have the
meanings ascribed thereto in the Option Agreement.

     

        2.  Delivery of Payment.
Optionee herewith delivers to the Company the full purchase price of the Shares,
as set forth in the Option Agreement, and any and all withholding taxes due in
connection with the exercise of the Option.

     

        3.  Representations of
Optionee. Optionee acknowledges that Optionee has received, read and
understood the Plan and the Option Agreement and agrees to abide by and be bound
by their terms and conditions.

     

        4.  Rights as
Stockholder. Until the issuance of the Shares (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized transfer
agent of the Company), no right to vote or receive dividends or any other rights
as a stockholder shall exist with respect to the Shares subject to the Option,
notwithstanding the exercise of the Option. The Shares shall be issued to the
Optionee as soon as practicable after the Option is exercised in accordance with
the Option Agreement. No adjustment shall be made for a dividend or other right
for which the record date is prior to the date of issuance except as provided in
the Plan.

     

        5.  Tax Consultation.
Optionee understands that Optionee may suffer adverse tax consequences as a
result of Optionee’s purchase or disposition of the Shares. Optionee represents
that Optionee has consulted with any tax consultants Optionee deems advisable in
connection with the purchase or disposition of the Shares and that Optionee is
not relying on the Company for any tax advice.

     

        6.  Successors and
Assigns. The Company may assign any of its rights under this Exercise
Notice to single or multiple assignees, and this Exercise Notice shall inure to
the benefit of the successors and assigns of the Company. Subject to the
restrictions on transfer herein set forth, this Exercise Notice shall be binding
upon Optionee and his or her heirs, executors, administrators, successors and
assigns.


    
      
        
          
            	
                     

                  	
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        7.  Interpretation. Any
dispute regarding the interpretation of this Exercise Notice shall be submitted
by Optionee or by the Company forthwith to the Committee (or the Disinterested
Committee, if applicable), which shall review such dispute at its next regular
meeting. The resolution of such a dispute by the Committee (or the Disinterested
Committee, if applicable) shall be final and binding on all
parties.

     

        8.  Governing Law;
Severability. The corporate laws of the State of Nevada shall govern all
issues concerning the relative rights of the Company and its security holders
under this Exercise Notice. All other questions and obligations under this
Exercise Notice shall be construed and enforced in accordance with the internal
laws of the State of California, without giving effect to any choice of law or
conflict of law provision or rule (whether of the State of California or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of California. In any action, dispute,
litigation or other proceeding concerning this Exercise Notice (including
arbitration), exclusive jurisdiction shall be with the courts of California,
with the County of Los Angeles being the sole venue for the bringing of the
action or proceeding. If any provision hereof becomes or is declared by a court
of competent jurisdiction to be illegal, unenforceable or void, this Exercise
Notice will continue in full force and effect.

     

        9.  Entire Agreement. The
Plan and the Option Agreement are incorporated herein by reference. This
Exercise Notice, the Plan and the Option Agreement constitute the entire
agreement of the parties with respect to the subject matter hereof and supersede
in their entirety all prior undertakings and agreements of the Company and
Optionee with respect to the subject matter hereof, and may not be modified
adversely to the Optionee’s interest, or modified by the Optionee, except by
means of a writing signed by the Company and Optionee.

    


    
      	
              Submitted
      by:

            	 
      	
              Accepted
      by:

            
	
              OPTIONEE

            	 
      	
              OVERHILL
      FARMS, INC.

            


    

    


    
      	 
      	 
      	
              By:

            	 
      
	
              Signature

            	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	
              Title:

            	 
      
	
              Print
      Name

            	 
      	 
      	 
      


    

    


    
      
        
          	
                  Address:

                	 
      	
                  Address:

                
	 
      	 
      	 
      
	 
      	 
      	
                  2727
      East Vernon Avenue

                
	 
      	 
      	
                  Vernon,
      California 90058

                
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	
                  Date
      Received

                


        

      

    

    


    



    
      
        
          
            	
                     

                  	
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    EXHIBIT
B

     

    AMENDED
AND RESTATED 2002 EMPLOYEE STOCK OPTION PLAN

     

    INVESTMENT
REPRESENTATION STATEMENT

     

    
      	
              OPTIONEE:

            	 
      	 
      
	 
      	 
      	 
      
	
              COMPANY:

            	 
      	
              OVERHILL
      FARMS, INC.

            
	 
      	 
      	 
      
	
              SECURITY:

            	 
      	
              COMMON
      STOCK

            
	 
      	 
      	 
      
	
              AMOUNT:

            	 
      	 
      


    

     

        In connection
with the purchase of the above-referenced Securities, the undersigned Optionee
represents to the Company as follows:

     

        (a) Optionee
is aware of the Company’s business affairs and financial condition and has
acquired sufficient information about the Company to reach an informed and
knowledgeable decision to acquire the Securities. Optionee is acquiring these
Securities for investment for Optionee’s own account only and not with a view
to, or for resale in connection with, any “distribution” thereof within the
meaning of the Securities Act of 1933 (the “Securities
Act”).

     

        (b) Optionee
acknowledges and understands that the Securities constitute “restricted
securities” under the Securities Act and have not been registered under the
Securities Act in reliance upon a specific exemption therefrom, which exemption
depends upon, among other things, the bona fide nature of Optionee’s investment
intent as expressed herein. In this connection, Optionee understands that, in
the view of the Securities and Exchange Commission, the statutory basis for the
exemption may be unavailable if Optionee’s representation was predicated solely
upon a present intention to hold these Securities for the minimum capital gains
period specified under tax statutes, for a deferred sale, for or until an
increase or decrease in the market price of the Securities, or for a period of
six (6) months, one (1) year or any other fixed period in the future. Optionee
further understands that the Securities must be held indefinitely unless they
are subsequently registered under the Securities Act or an exemption from such
registration is available. Optionee further acknowledges and understands that
the Company is under no obligation to register the Securities. Optionee
understands that the certificate evidencing the Securities may be imprinted with
any legend required under applicable federal or state securities
laws.

     

        (c) Optionee
is familiar with the provisions of Rule 144 promulgated under the
Securities Act, which, in substance, permits limited public resale of
“restricted securities” acquired, directly or indirectly from the issuer
thereof, in a non-public offering subject to the satisfaction of certain
conditions.

     

        (d) Optionee
further understands that if all of the applicable requirements of Rule 144
are not satisfied, registration under the Securities Act or some other
registration exemption will be


    
      
        
          
            	
                     

                  	
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     required;
and that, notwithstanding the fact that Rule 144 is not exclusive, the
Staff of the Securities and Exchange Commission has expressed its opinion that
persons proposing to sell private placement securities other than in a
registered offering and otherwise than pursuant to Rule 144 will have a
substantial burden of proof in establishing that an exemption from registration
is available for the offers or sales, and that persons and their respective
brokers who participate in these transactions do so at their own risk. Optionee
understands that no assurances can be given that any other registration
exemption will be available in that event.

    


    
      
        	 
      	
                Signature
      of Optionee:

              
	 
      	 
      
	 
      	 
      
	 
      	 
      
	 
      	 
      
	 
      	
                Date:                                                                            
      , 20    
      

              


      

    

    


     

    



    
      
        
          
            	
                     

                  	
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