Exhibit 99.11
NONQUALIFIED STOCK OPTION AGREEMENT
UNDER THE ▇▇▇▇▇▇'▇ RESTAURANTS, INC. NONQUALIFIED FORMULA STOCK
OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
This NONQUALIFIED STOCK OPTION AGREEMENT (the "Agreement") is made and
entered into as of the ____ day of _______________2002, by and between ▇▇▇▇▇▇'▇
RESTAURANTS, INC., a Delaware corporation (herein called the "Company"), and
_______________ (herein called the "Director").
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company (the "Board"), with the
approval and authorization of the shareholders thereof, has resolved that the
interests of the Company will be advanced by encouraging and enabling
non-employee directors of the Company to acquire proprietary shares in the
Company, thus providing them with a more direct concern in the welfare of the
Company and assuring a closer identification of their interests with those of
the Company; and
WHEREAS, the Board believes that the acquisition of such an interest in
the Company will stimulate the endeavors of such directors on behalf of the
Company and strengthen their desire to remain in service with the Company by
adding long-term incentives for high levels of performance and for unusual
efforts designed to improve the financial performance of the Company; and
WHEREAS, the individual above named is one of such directors;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained and other good and valuable consideration, the
parties hereto agree as follows:
1. Company hereby grants to Director the right and option to purchase,
at the time and on the terms and conditions hereinafter set forth, __________
shares of the presently authorized Common Stock of the Company (the "Option
Shares") at the purchase price of dollars and no cents ($________) per share.
2. The option provided for in this Agreement is granted pursuant to the
▇▇▇▇▇▇'▇ Restaurants, Inc. Nonqualified Formula Stock Option Plan for
Non-Employee Directors (hereinafter referred to as the "Plan"). The terms and
provisions of such Plan are incorporated herein by reference and, in the event
of any conflict arises between the terms and provisions of this Agreement and
those of the Plan, the terms and provisions of the Plan, including without
limitation, those with respect to the powers of the administrator appointed
thereunder to administer the Plan (hereinafter referred to as the "Plan
Administrator"), shall prevail and be controlling.
3. This option shall continue for ten (10) years from the date hereof,
except and to the extent that such term may be reduced as provided in Paragraphs
6, ▇, ▇ and 11 hereof; provided, however, that if any termination date provided
for herein shall fall on a Saturday, Sunday or legal holiday, then such
termination date shall be deemed to be the first normal business day of the
Company, at its office specified in Paragraph 16 hereof, before such Saturday,
Sunday or legal holiday.
4. Except as otherwise provided herein, this option shall be
exercisable as follows:
(a) 20% of the Option Shares maybe acquired on or after the later of
July 22, 2003 or the first anniversary date of this Agreement;
(b) 40% of the Option Shares may be acquired on or after July 22,
2004, or the second anniversary date of this Agreement;
(c) 60% of the Option Shares may be acquired on or after July 22,
2005, or the third anniversary date of this Agreement;
(d) 80% of the Option Shares may be acquired on or after July 22, 2006
or the fourth anniversary date of this Agreement;
(e) 100% of the Option Shares may be acquired on or after July 22,
2007, or the fifth anniversary date of this Agreement.
Under no circumstances may this option be exercised on a date later than ten
(10) years from the date hereof. Director's right to exercise the option granted
hereunder accrues only in accordance with the foregoing provisions and , except
as otherwise provided herein, only to the extent that he remains in the
continuous service of the Company. This option shall be exercisable during the
lifetime of the Director only by him or his duly appointed guardian or personal
representative. In no event may Director or any person exercising this option
pursuant to Paragraph 8 hereof exercise this option (before or after any
adjustment or substitution pursuant to Paragraph 10, 11 or 17 hereof) for a
fraction of a share.
5. The option granted hereunder shall be exercised by delivering to the
Secretary of the Company from time to time within the time limits specified in
Paragraph 4 hereof a written notice specifying the number of vested shares
Director then desires to purchase together with either: (i) a cashier's check
payable in United States currency (unless a personal check shall be acceptable
to such officer) to the order of the Company for an amount equal to the option
price for such number of shares; or (ii) with the prior consent of the Board,
and upon receipt of all regulatory approvals, certificates for Common Stock of
the Company, valued at the Fair Market Value (as defined in the Plan) of such
Common Stack on the date of exercise of this option, as payment of all or any
portion of the option price for such number of shares, and (iii) such other
instruments or agreements duly signed by Director as in the opinion of counsel
for the Company may be necessary or advisable in order that the issuance of such
number of shares comply with applicable rules and regulations under the
Securities Act of 1933, as amended (the "Act"), any appropriate state security
laws or any requirement of any national securities exchange or market system on
which such stock may be traded. As soon as practicable after any such exercise
of the option in whole or in part by Director, the Company will deliver to
Director at Director's address, as set forth below, a certificate for the number
of shares with respect to which the option shall have been so exercised, issued
in Director's name. Such stock certificate shall carry such appropriate legend,
and such written instructions shall be given to the Company's Transfer Agent, as
may be deemed necessary or advisable by counsel for the Company to satisfy the
requirements of the Act or any state securities laws.
6. (a) If the directorship of Director is terminated by any reason
other than (i) Disability (as hereinafter defined) of Director, (ii) death of
Director, or (iii) on account of any act of
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fraud or intentional misrepresentation of embezzlement, misappropriation of
conversion of assets or opportunities of the Company or any Affiliate (as
defined in the Plan), then Director shall have the right at any time within one
(1) month after the termination of such directorship or, if shorter, during the
unexpired term of this option, to exercise this option for the full number of
shares or any portion thereof (except as to the issuance of fractional shares)
but only to the extent this option was exercisable on the date of such
termination.
(b) If the directorship of Director is terminated on account of any act
of fraud or intentional misrepresentation or embezzlement, misappropriation or
conversion of assets or opportunities of the Company or any Affiliate, then his
rights under the option granted hereunder shall terminate immediately.
7. If Director's directorship is terminated by reason of Disability,
this option (whether or not then exercisable on the date of Directors
termination of directorship by reason of Disability) may be exercised in full ,
or to the extent of any part thereof (except as to the issuance of fractional
shares) at any time within six (6) months after the date of such termination or
within the unexpired term of this option, whichever is the shorter period. As
used herein, the term "Disability" shall have the meaning given to such term in
the Plan. Disability shall be determined in the sole and absolute discretion of
the Plan Administrator, as provided in the Plan.
8. If Director dies while serving as a member of the Board or during
the six-month period described in Paragraph 7 above, this option may be
exercised in full, or to the extent of any part thereof (except as to the
issuance of fractional shares), whether or not exercisable on the date of death
of Director, at anytime within six (6) months from the date of death of Director
or within the unexpired term of this option, whichever is the shorter period, by
the person or persons entitled to do so under the Director's will or if Director
fails to make testamentary disposition of this option or dies intestate, by
Director's legal representative or representatives, whichever is applicable. If
Director dies during the six-month period described in Paragraph 7 above, this
option may be exercised as described above, but only to the extent exercisable
on the date of death of Director.
9. Shares to be issued on the exercise of this option may, at the
election of the Company, be either authorized and unissued shares, or shares
previously issued and reacquired by the Company.
10. If, prior to the delivery of all the shares with respect to whom
this option is granted, there shall by any change in the outstanding Common
Stock of the Company, through reorganization, recapitalization,
reclassification, stock dividend, stock split, amendment to the Company's
Certificate of Incorporation or reverse stock split, an appropriate and
proportionate adjustment shall be made in the number and/or kind of securities
allocated to the option hereby granted, without change in the aggregate purchase
price applicable to the unexercised portion of the option, but with a
corresponding adjustment in the number and price for each share or other unit of
any security by the option. Such adjustments shall be made by the Plan
Administrator, whose determination in the matter shall be conclusive and binding
on the Company, Director and Director's legal representatives.
11. If prior to the delivery of all the shares in respect of which this
option is granted, a Change of Control of the Company shall occur, as defined in
the Plan:
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(a) If provision be made in writing in connection with such
transaction for the assumption and continuance of the option
hereby granted, or the substitution for such option of a new
option covering the shares of the successor corporation, with
appropriate adjustment as to number and kind of shares and
prices, the option hereby granted, or the new option substituted
therefor, as the case may be, shall continue in the manner and
under the terms provided.
(b) If provision is not made in such transaction for the continuance
and assumption of the option hereby granted or for the
substitution of an option covering the shares of the successor
corporation, then Director shall be entitled, prior to the
effective date of any such transaction to purchase the full
number of shares under this option (without regard to the period
of exercisability set forth in Paragraph 4) that have not at the
time expired or been canceled, failing which purchase, any
unexercised portion shall be deemed canceled as of the effective
date of such transaction.
All adjustments under this paragraph shall be the Plan administrator, whose
determination as to what adjustments shall be made and the extent thereof, shall
be final, binding and conclusive on the Company, Director and Director's legal
representatives.
12. Neither Director nor his legal representatives shall be or have any
of the rights or privileges of a shareholder of the Company with respect to any
of the shares issuable upon the exercise of this option unless and until
certificates representing such shares have been issued and delivered to Director
or his legal representatives.
13. Neither the granting of this option, the exercise of any part
hereof, nor any provision of this Agreement shall constitute or be evidence of
any understanding, express or implied, on the part of the Company to continue
the service of Director as a member of the Board for any specified period.
14. Except as otherwise herein provided, this option and the rights and
privileges conferred hereby may not be transferred, assigned, pledged or
hypothecated in any way (whether by operation of law or otherwise) and shall not
be subject to execution, attachment or similar process. Upon any attempt to
transfer, assign, pledge, hypothecate or otherwise dispose of this option or any
right or privilege conferred hereby, contrary to the provisions hereof, this
option and the rights and privileges conferred hereby shall immediately become
null and void.
15. The Plan Administrator shall have authority to make reasonable
constructions of this option and to correct any defect or supply any omission or
reconcile any inconsistency in this option, and to prescribe reasonable rules
and regulations relating to the administration of this option and other similar
options granted under the Plan.
16. Any notice relating to this Agreement shall be in writing and
delivered in person or by registered mail to the Company at its main office,
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or to such other address as may be
hereafter specified by the Company, to the attention of its Secretary. All
notices to Director or any other person or persons then entitled to exercise the
option shall be delivered to the Director or such other person or persons at the
Director's address specified below.
17. If, prior to the delivery of all of the shares in respect to which
this option is granted, there shall be a merger or consolidation of the Company
in which the Company is the surviving
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corporation and, if as a result thereof, outstanding shares of Common Stock of
the Company was changed, converted or exchanged, then there shall be substituted
for each share of stock subject to the option granted hereby the number, kind or
amount of shares of stock or other securities or cash into which the outstanding
shares of Common Stock of the Company shall be so changed, converted or
exchanged as a result of such merger or consolidation. In the case of any such
substitution or adjustment as provided in this paragraph, the option price
referred to in this Agreement for the shares covered hereby shall be the option
price for the shares or other securities or cash which shall have been
substituted for the shares covered hereby or to which such shares shall have
been adjusted. Any adjustment or substitutions pursuant to this paragraph shall
be made by the Plan Administrator, whose determination in the matter shall be
conclusive and binding on the Company, Director and his legal representatives.
18. Any payment or any issuance or transfer of shares of the Common
Stock to Director or his legal representative, heir, legatee or distributee, in
accordance with the provisions hereof, shall, to the extent thereof, be in full
satisfaction of all claims of such persons hereunder. The Board may require
Directors and such legal representative, heir, legatee or distributee, as a
condition precedent to such payment, issuance or transfer, to execute a release
and receipt therefor in such form as it shall determine.
19. This option is not intended to qualify as an "incentive stock
option" within the meaning of Section 422 of the Internal Revenue Code and shall
be so construed.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed in its name by its President and its corporate seal to be hereunto
affixed and attested by its Secretary on the date and year first above written,
and Director has hereunto set his hand on the day and year specified above.
▇▇▇▇▇▇'▇ RESTAURANTS, INC.
ATTEST:
_________________________________ By:_______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Secretary ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
__________________________________
Director
(SEAL)
__________________________________
Street Address
__________________________________
City, State and Zip Code
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