RUTH’S CHRIS STEAK HOUSE, INC. STOCK OPTION AGREEMENT [Issue Date]
EXHIBIT 10.18
▇▇▇▇’▇ ▇▇▇▇▇ STEAK HOUSE, INC.
[Issue Date]
«FirstName» «LastName»
«Address1»
«Address2»
«City», «State» «PostalCode»
| Re: | ▇▇▇▇’▇ ▇▇▇▇▇ Steak House, Inc. (the “Company”) |
| Grant of Stock Option |
Dear «FirstName»:
The Company is pleased to advise you that its Board of Directors has granted to you a stock option (an “Option”), as provided below, under the Company’s January 2000 Stock Option Plan (the “Plan”), a copy of which is attached hereto and incorporated herein by reference.
1. Definitions. For the purposes of this Agreement, the following terms shall have the meanings set forth below:
“Board” shall mean the Board of Directors of the Company.
“Cause” shall mean (i) your theft or embezzlement, or attempted theft or embezzlement, of money or property of the Company, your perpetration or attempted perpetration of fraud, or your participation in a fraud or attempted fraud, on the Company or your unauthorized appropriation of, or your attempt to misappropriate, any tangible or intangible assets or property of the Company, (ii) any act or acts of disloyalty, misconduct or moral turpitude by you injurious to the interest, property, operations, business or reputation of the Company or your commission of a crime which results in injury to the Company or (iii) your willful disregard of a directive given by a superior or the Board or a violation of a Company employment policy.
“Class A Common Stock” shall mean the Company’s Class A Common Stock par value $.01 per share, or, in the event that the outstanding Class A Common Stock is hereafter changed into or exchanged for different stock or securities of the Company, such other stock or securities.
“Code” shall mean the Internal Revenue Code of 1986, as amended, and any successor statute.
“Committee” shall mean the Stock Option Committee, or such other committee of the Board, which may be designated by the Board to administer this Option. The Committee shall be composed of two or more directors as appointed from time to time to serve by the Board. In the absence of a Committee, the functions of the Committee shall be performed by the Board.
#«Option_»
#<<Option_>>
“Company” shall mean ▇▇▇▇’▇ ▇▇▇▇▇ Steak House, Inc., a Louisiana corporation, and (except to the extent the context requires otherwise) any subsidiary corporation of ▇▇▇▇’▇ ▇▇▇▇▇ Steak House, Inc. as such term is defined in Section 425(f) of the Code.
“Cost” shall mean the Exercise Price for the Option Shares (as proportionately adjusted for subsequent stock splits and combinations, stock dividends and recapitalization affecting the Class A Common Stock).
“Disability” shall mean your inability, due to illness, accident, injury, physical or mental incapacity or other disability, to carry out effectively your duties and obligations to the Company or to participate effectively and actively in the management of the Company for a period of at least 90 consecutive days or for shorter periods aggregating at least 120 days (whether or not consecutive) during any twelve-month period, as determined in the reasonable judgment of the Board.
“Fair Market Value” of the Class A Common Stock shall be the fair market value as determined by the Committee or, in the absence of the Committee, by the Board.
“Independent Third Party” means any Person who, immediately prior to the contemplated transaction, (i) does not own in excess of 5% of the Company’s Class A Common Stock on a fully-diluted basis (a “5% Owner”), (ii) is not controlling, controlled by or under common control with any such 5% Owner, (iii) is not the spouse or descendent (by birth or adoption) of any such 5% Owner or a trust for the benefit of such 5% Owner and/or such other Persons and (iv) is neither a portfolio company of any such 5% Owner nor a subsidiary of any portfolio company of any such 5% Owner.
“Investor” shall mean Madison Dearborn Capital Partners III, L.P., a Delaware limited partnership.
“Option Shares” shall mean (i) all shares of Class A Common Stock issued or issuable upon the exercise of the Option and (ii) all shares of Class A Common Stock issued with respect to the Class A Common Stock referred to in clause (i) above by way of stock dividend or stock split or in connection with any conversion, merger, consolidation or recapitalization or other reorganization affecting the Class A Common Stock. Option Shares shall continue to be Option Shares in the hands of any holder other than you (except for the Company or the Investor and, to the extent that you are permitted to transfer Option Shares pursuant to paragraph 6, 14 or 15 hereof, purchasers pursuant to a public offering under the Securities Act), and each such transferee thereof shall succeed to the rights and obligations of a holder of Option Shares hereunder.
“Participant” shall mean any executive or other key employee of the Company who has been selected to participate in the Plan by the Committee or the Board.
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“Public Sale” means any sale of Option Shares to the public pursuant to an offering registered under the Securities Act or to the public through a broker, dealer or market maker pursuant to the provisions of Rule 144 adopted under the Securities Act.
“Registration Agreement” shall mean that certain Registration Agreement, dated as of September 17, 1999, by and among the Company and certain investors as amended from time to time.
“Sale of the Company” means (A) a merger or consolidation effecting a change in control of the Company such that the holders as of the close of business on the date of this Agreement of the Company’s capital stock and securities or rights convertible or exchangeable for or exercisable into capital stock cease to have the power to elect a majority of the Company’s board of directors, (B) a sale of all or substantially all of the Company’s assets, (C) a sale to any person or entity or group of affiliated persons or entities of the Company’s outstanding voting securities having the voting power to elect a majority of the Company’s board of directors or (D) any other transaction as a result of which Madison Dearborn Capital Partners III, L.P. and its affiliates cease to have the power to elect a majority of the Company’s board of directors and any person or entity or group of affiliated persons or entities obtains the power to elect a majority of the Company’s board of directors.
“Securities Act” shall mean the Securities Act of 1933, as amended, and any successor statute.
“Shareholders Agreement” shall mean the shareholders agreement, dated as of September 17, 1999 between the Company, Madison Dearborn Capital Partners III, L.P., Madison Dearborn Special Equity III, L.P., Special Advisors Fund I, LLC, First Union Investors, Inc., GS Mezzanine Partners, L.P., GS Mezzanine Partners Offshore, and each of the shareholders listed as Investors on the signature page thereto.
2. Option.
(a) Terms. Your Option is for the purchase of up to «SharesAmt» shares of Class A Common Stock (the “Option Shares”) at a price per share of [Price] (the “Exercise Price”), payable upon exercise as set forth in paragraph 2(b) below. Your Option shall expire at the close of business on the tenth anniversary of the date hereof (the “Expiration Date”), subject to earlier expiration as provided in paragraph 3(c) below or upon termination of your employment as provided in paragraph 4(b) below. This Option is not intended to be an “incentive stock option” within the meaning of Section 422 of the Code.
(b) Payment of Option Price. Subject to paragraph 3 below, your Option may be exercised in whole or in part upon payment of an amount (the “Option Price”) equal to the product of (i) the Exercise Price multiplied by (ii) the number of Option Shares to be acquired. Payment shall be made in cash (including check, bank draft or money order) or, in the discretion of the Committee, by delivery of a promissory note (if in accordance with policies approved by the Board) or with
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#<<Option_>>
the approval of the Committee upon written notice to the Company that the Company is authorized to withhold from issuance a number of shares of Class A Common Stock issuable upon exercise of your Option which when multiplied by the Fair Market Value of the shares of Class A Common Stock issuable upon exercise of your Option is equal to the exercise price of your Option as set forth in paragraph 2(a).
3. Exercisability/Vesting.
(a) Normal Vesting. Your Option may be exercised only to the extent it has become vested. One fifth of your option shall vest over each of the first five years following the date hereof, pro rata on a daily basis, if and only if you are, and have been, continuously employed by the Company from the Grant Date through such anniversary date.
(b) Effect on Vesting in Case of Employment Termination. Notwithstanding paragraph 3(a) above, the following special vesting rules shall apply if your employment with the Company terminates prior to the Expiration Date:
(i) Death or Disability. If you die or become subject to any Disability while an employee of the Company, your Option shall be vested and become fully exercisable with respect to a number of Option Shares equal to the sum of (x) the Option Shares that were exercisable on the date of your death or Disability, plus (y) such additional Option Shares to which you would have been entitled had your employment continued for one additional year following the date of termination of your employment as a result of death or Disability. Your Option with respect to the remaining Option Shares that was not exercisable on the date of your death or Disability as set forth above shall expire and be forfeited.
(ii) Retirement or Resignation. If you retire (with the approval of the Committee or the Board) or resign from employment with the Company, your Option shall be vested and fully exercisable with respect to that portion of your Option that was exercisable on the date of your retirement or resignation. Any portion of your Option that was not exercisable on the date of your retirement shall expire and be forfeited.
(iii) Termination For Cause. If your employment terminates for Cause, all of your Option not previously exercised shall expire and be forfeited (whether exercisable or not) on the date the Company delivers notice of termination of employment for Cause to you.
(iv) Other Termination of Employment. Unless otherwise determined by the Committee, if your employment terminates other than as a result of death, Disability, retirement (with the approval of the Committee or the Board), resignation or discharge for Cause, your Option shall be vested and fully exercisable with respect to that portion of your Option that was vested and exercisable on the date your employment with the Company ceased and any portion of your Option that was not vested and exercisable on such date shall expire and be forfeited.
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#<<Option_>>
Except as provided in this paragraph 3(b), the number of Option Shares with respect to which your Option may be exercised shall not increase once you cease to be employed by the Company.
(c) Acceleration of Vesting on Sale of the Company. If you have been continuously employed by the Company from the date of this Agreement until a Sale of the Company, the portion of your outstanding Option which has not become vested at the date of such event shall, upon the requisite approval of the Company’s shareholders as provided under Section 280 G of the Code to the extent necessary to avoid any “parachute” payments thereunder, immediately vest and become exercisable with respect to 100% of the Option Shares simultaneously with the consummation of the Sale of the Company. In any event, any portion of your Option which has not been exercised prior to or in connection with the Sale of the Company shall be forfeited, unless otherwise determined by the Committee or the Board.
4. Expiration of Option.
(a) Normal Expiration. In no event shall any part of your Option be exercisable after the Expiration Date set forth in paragraph 2(a) above.
(b) Early Expiration Upon Termination of Employment. Any portion of your Option that was not vested and exercisable on the date your employment with the Company terminated shall expire and be forfeited on such date, and any portion of your Option that was vested and exercisable on the date your employment with the Company terminated shall also expire and be forfeited; provided that: (i) if you die or become subject to any Disability, the portion of your Option that is vested and exercisable shall expire 180 days from the date of your death or Disability, but in no event after the Expiration Date, (ii) if you retire (with the approval of the Committee or the Board), the portion of your Option that is vested and exercisable shall expire 90 days from the date of your retirement, but in no event after the Expiration Date, (iii) if you resign, the portion of your Option that is vested and exercisable shall expire 30 days from the date of your resignation, but in no event after the Expiration Date, and (iv) if you are discharged other than for Cause, the portion of your Option that is vested and exercisable shall expire 90 days from the date of your discharge, but in no event after the Expiration Date. Notwithstanding the foregoing, any Option that is intended to be an incentive stock option (“ISO”) under Section 422 of the Code shall be exercisable only during such Participant’s employment by the Company, provided, however, that the Committee may, in its discretion, provide at the time such ISO is granted that such ISO may be exercised for a period not to extend beyond the earliest of (x) the expiration of the term of the Option as determined in accordance with paragraph 2(a) or (y) the date that is three months after termination of such Participant’s employment. The Committee’s discretion to extend the period during which such ISO is exercisable shall only apply if and to the extent that (a) such Participant was entitled to exercise such ISO on the date of termination and (b) such ISO would not have expired had such Participant continued to be employed by the Company.
5. Procedure for Exercise. You may exercise all or any portion of your Option, to the extent it has vested and is outstanding, at any time and from time to time prior to its expiration, by delivering written notice to the Company (to the attention of the Company’s Secretary) and your
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written acknowledgment that you have read and have been afforded an opportunity to ask questions of management of the Company regarding all financial and other information provided to you regarding the Company, together with payment of the Option Price in accordance with the provisions of paragraph 2(b) above. As a condition to any exercise of your Option, you shall permit the Company to deliver to you all financial and other information regarding the Company it believes necessary to enable you to make an informed investment decision, and you shall make all customary investment representations which the Company requires.
6. Securities Laws Restrictions and Other Restrictions on Transfer of Option Shares. You represent that when you exercise your Option you shall be purchasing Option Shares for your own account and not on behalf of others. You understand and acknowledge that federal and state securities laws govern and restrict your right to offer, sell or otherwise dispose of any Option Shares unless your offer, sale or other disposition thereof is registered under the Securities Act and state securities laws, or in the opinion of the Company’s counsel, such offer, sale or other disposition is exempt from registration or qualification thereunder. You agree that you shall not offer, sell or otherwise dispose of any Option Shares in any manner which would: (i) require the Company to file any registration statement with the Securities and Exchange Commission (or any similar filing under state law) or to amend or supplement any such filing or (ii) violate or cause the Company to violate the Securities Act, the rules and regulations promulgated thereunder or any other state or federal law. You further understand that the certificates for any Option Shares you purchase shall bear such legends, as the Company deems necessary or desirable in connection with the Securities Act or other rules, regulations or laws.
7. Non-Transferability of Option. Your Option is personal to you and is not transferable by you other than by will or the laws of descent and distribution. During your lifetime only you (or your guardian or legal representative) may exercise your Option. In the event of your death, your Option may be exercised only (i) by the executor or administrator of your estate or the person or persons to whom your rights under the Option shall pass by will or the laws of descent and distribution and (ii) to the extent that you were entitled hereunder at the date of your death.
8. Conformity with Plan. Your Option is intended to conform in all respects with, and is subject to all applicable provisions of, the Plan (which is incorporated herein by reference). Inconsistencies between this Agreement and the Plan shall be resolved in accordance with the terms of the Plan. By executing and returning the enclosed copy of this Agreement, you acknowledge your receipt of this Agreement and the Plan and agree to be bound by all of the terms of this Agreement and the Plan.
9. Rights of Participants. Nothing in this Agreement shall interfere with or limit in any way the right of the Company to terminate your employment at any time (with or without Cause), nor confer upon you any right to continue in the employ of the Company for any period of time or to continue your present (or any other) rate of compensation, and in the event of your termination of employment (including, but not limited to, termination by the Company without Cause) any portion of your Option that was not previously vested and exercisable shall be forfeited. Nothing in this Agreement shall confer upon you any right to be selected again as a Plan participant, and nothing
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in the Plan or this Agreement shall provide for any adjustment to the number of Option Shares subject to your Option upon the occurrence of subsequent events, except as provided in paragraph 11 below.
10. Withholding of Taxes. The Company shall be entitled, if necessary or desirable, to withhold from you any amounts due and payable by the Company to you (or secure payment from you in lieu of withholding) the amount of any withholding or other tax due from the Company with respect to any Option Shares issuable under this Plan, and the Company may defer such issuance unless indemnified by you to its satisfaction.
11. Adjustments. In the event of a reorganization, recapitalization, stock dividend or stock split, or combination or other change in the shares of Class A Common Stock, the Board or the Committee shall, in order to prevent the dilution or enlargement of rights under your Option, make such adjustments in the number and type of shares authorized by the Plan, the number and type of shares covered by your Option and the Exercise Price specified herein as may be determined to be appropriate and equitable. The issuance by the Company of shares of stock of any class, or options or securities exercisable or convertible into shares of stock of any class, for cash or property, or for labor or services either upon direct sale, or upon the exercise of rights or warrants to subscribe therefor, or upon exercise or conversion of other securities, shall not affect, and no adjustment by reason thereof shall be made with respect to, the number or price of shares of Class A Common Stock then subject to any Options.
12. Right to Purchase Option Shares Upon Your Termination of Employment.
(a) Repurchase of Option Shares. If your employment with the Company shall terminate as a result of your resignation or discharge by the Company with or without Cause (the date on which such termination occurs being referred to as the “Termination Date”), then the Company shall have the option to repurchase all or any part of the Option Shares issued or issuable upon exercise of your Option, whether held by you or by one or more of your transferees, at the price determined in accordance with the provisions of paragraph 13 hereof (the “Repurchase Option”).
(b) Repurchase by Company. The Company may elect to purchase all or any portion of the Option Shares by delivery of written notice (the “Repurchase Notice”) to you or any other holders of the Option Shares within 120 days after the Termination Date. The Repurchase Notice shall set forth the number of Option Shares to be acquired from you and such other holder(s), the aggregate consideration to be paid for such shares and the time and place for the closing of the transaction. The number of Option Shares to be repurchased by the Company shall first be satisfied to the extent possible from the Option Shares held by you at the time of delivery of the Repurchase Notice. If the number of Option Shares then held by you is less than the total number of Option Shares the Company has elected to purchase, then the Company shall purchase the remaining shares elected to be purchased from the other holders thereof, pro rata according to the number of shares held by each such holder at the time of delivery of such Repurchase Notice (determined as close as practical to the nearest whole shares).
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#«Option_»
(c) Repurchase by the Shareholders. If for any reason the Company does not elect to purchase all of the Option Shares pursuant to the Repurchase Option, then the Shareholders (as defined in the Shareholders Agreement) shall be entitled to exercise the Company’s Repurchase Option in the manner set forth in paragraph 12(a) for all or any portion of the number of Option Shares the Company has not elected to purchase (the “Available Shares”). As soon as practicable after the Company has determined that there shall be Available Shares, but in any event within 90 days after the Termination Date, the Company shall deliver written notice (the “Option Notice”) to the Shareholders setting forth the number of Available Shares and the price for each Available Share. Each Shareholder may elect to purchase any number of Available Shares by delivering written notice to the Company within 20 days after receipt of the Option Notice from the Company. As soon as practicable, and in any event within five days after the expiration of such 20-day period, the Company shall notify you and any other holder(s) of Option Shares as to the number of Option Shares being purchased from you by the Shareholders (the “Supplemental Repurchase Notice”). At the time the Company delivers the Supplemental Repurchase Notice to you and such other holder(s) of Option Shares, the Shareholders shall also receive written notice from the Company setting forth the number of shares it is entitled to purchase, the aggregate purchase price and the time and place of the closing of the transaction.
(d) Closing of Repurchase of Option Shares. The purchase of Option Shares pursuant to this paragraph 12 shall be closed at the Company’s executive offices within 20 days after the expiration of the 120-day period referred to in paragraph 12(b). At the closing, the purchaser or purchasers shall pay the purchase price in the manner specified in paragraph 13(b), and you and any other holders of Option Shares being purchased shall deliver the certificate or certificates representing such shares to the purchaser or purchasers or their nominees, accompanied by duly executed stock powers. Any purchaser of Option Shares under this paragraph 12 shall be entitled to receive customary representations and warranties from you and any other selling holders of Option Shares regarding the sale of such shares (including representations and warranties regarding good title to such shares, free and clear of any liens or encumbrances) and to require all sellers’ signatures to be guaranteed by a national bank or reputable securities broker.
13 Purchase Price for Option Shares.
(a) Purchase Price. The purchase price per share to be paid for the Option Shares purchased by the Company and the Shareholders pursuant to paragraph 12 upon termination of your employment by resignation or without Cause shall be equal to the Fair Market Value of such Option Shares as of the Termination Date, and the purchase price per share to be paid for the Option Shares purchased by the Company and the Shareholders pursuant to paragraph 12 upon termination of your employment for Cause shall be equal to the lower of Fair Market Value or Cost of such Option Shares.
(b) Manner of Payment. If the Company elects to purchase all or any part of the Option Shares, including Option Shares held by one or more transferees, the Company shall pay for such shares: (i) first, by certified check or wire transfer of funds to the extent such payment would not cause the Company to violate the Business Corporation Act of the State of Louisiana and would
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not cause the Company to breach any agreement to which it is a party relating to the indebtedness for borrowed money or other material agreement; and (ii) thereafter, with a subordinated promissory note of the Company. Such subordinated promissory note shall bear interest at the rate of 5 % per annum (which shall be payable annually in cash unless otherwise prohibited as set forth above), shall have all principal due on the fifth anniversary of the date of issuance and shall be subordinated on terms and conditions satisfactory to the holders of the Company’s indebtedness for borrowed money. In addition, the Company may pay the purchase price for such shares by offsetting amounts outstanding under any indebtedness or obligations owed by you to the Company. If the Shareholders elect to purchase all or any portion of the Available Shares, the Shareholders shall pay for that portion of such Option Shares by certified check or wire transfer of funds.
14 Restrictions on Transfer.
(a) Transfer of Option Shares. You shall not sell, pledge or otherwise transfer any interest in any Option Shares except pursuant to a Public Sale or the provisions of paragraph 12 or 16 hereof (“Exempt Transfers”) and except pursuant to the provisions of this paragraph 14. At least 30 days prior to making any transfer other than an Exempt Transfer, you shall deliver a written notice (the “Sale Notice”) to the Company and the Shareholders; provided that shares may only be transferred for cash or cash payable in installments over time. The Sale Notice shall disclose in reasonable detail the identity of the prospective transferee(s) and the terms and conditions of the proposed transfer. You agree not to consummate any such transfer until 30 days after the Sale Notice has been delivered to the Company and the Shareholders, unless the parties to the transfer have been finally determined pursuant to this paragraph 14 prior to the expiration of such 30-day period. (The date of the first to occur of such events is referred to herein as the “Authorization Date”).
(b) First Refusal Rights. The Company may, first, elect to purchase all (but not less than all) of the Option Shares to be transferred by you, upon the same terms and conditions as those set forth in the Sale Notice, by delivering a written notice of such election to you and the Shareholders within 15 days after the receipt of the Sale Notice by the Company. If the Company has not elected to purchase all of the Option Shares to be transferred, then the Shareholders may elect to purchase all (but not less than all) of the Option Shares to be transferred which have not been elected to be purchased by the Company, upon the same terms and conditions as those set forth in the Sale Notice, by delivering a written notice of such election to you within 25 days after the receipt of the Sale Notice by the Shareholders. Any person who has the right to acquire Option Shares pursuant to this paragraph 14(b) shall be given up to 30 days (after it has been determined that such person has such right) to consummate the purchase and sale of Option Shares. If neither the Company nor the Shareholders, either individually or in the aggregate, have elected to purchase all of the Option Shares specified in the Sale Notice, you may transfer the Option Shares specified in the Sale Notice at a price and on terms no more favorable to the transferee(s) thereof than specified in the Sale Notice during the 45-day period immediately following the Authorization Date. Any Option Shares not transferred within such 45-day period shall be subject to the provisions of this paragraph 14(b) upon subsequent transfer.
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(c) Certain Permitted Transfers. The restrictions contained in this paragraph 14 shall not apply with respect to transfers of Option Shares (i) pursuant to applicable laws of descent and distribution or (ii) among your family group; provided that the restrictions contained in this paragraph shall continue to be applicable to the Option Shares after any such transfer and the transferees of such Option Shares have agreed in writing to be bound by the provisions of this Agreement. Your “family group” means your spouse and descendants (whether natural or adopted) and any trust solely for the benefit of you and/or your spouse and/or descendants.
(d) Termination of Restrictions. The restrictions on the transfer of Option Shares set forth in this paragraph 14 shall continue with respect to each Option Share until the date on which such Option Share has been transferred in a transaction permitted by this paragraph (except in a transaction contemplated by paragraph 14(c)); provided in any event the restrictions on transfers set forth in this paragraph 14 shall terminate when the Company has sold shares of its Class A Common Stock pursuant to a public offering registered under the Securities Act.
15 Additional Restrictions on Transfer.
(a) Restrictive Legend. The certificates representing the Option Shares shall bear the following legend:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED ON NOVEMBER 18, 2004, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION THEREUNDER. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER, CERTAIN REPURCHASE OPTIONS AND CERTAIN OTHER AGREEMENTS SET FORTH IN AN OPTION AGREEMENT BETWEEN THE COMPANY AND «FirstName» «LastName» DATED AS OF NOVEMBER 18, 2004, A COPY OF WHICH MAY BE OBTAINED BY THE HOLDER HEREOF AT THE COMPANY’S PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE.”
(b) Opinion of Counsel. You may not sell, transfer or dispose of any Option Shares (except pursuant to an effective registration statement under the Securities Act) without first delivering to the Company an opinion of counsel reasonably acceptable in form and substance to the Company that registration under the Securities Act or any applicable state securities law is not required in connection with such transfer.
(c) Holdback. You agree not to effect any public sale or distribution of any equity securities of the Company, or any securities convertible into or exchangeable or exercisable for such securities, during the seven days prior to and the 180 days after the effectiveness of any underwritten
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Demand Registration or any underwritten Piggyback Registration (as such terms are defined in the Registration Agreement), except as part of such underwritten registration if otherwise permitted.
16 Sale of the Company.
(a) If the Board and the holders of a majority of the shares of [Class A Common Stock] then outstanding, voting share for share as a single class, approve a sale of all or substantially all of the Company’s assets determined on a consolidated basis or a sale of all or substantially all of the Company’s outstanding capital stock (whether by merger, recapitalization, consolidation, reorganization, combination or otherwise) to any Independent Third Party or group of Independent Third Parties (collectively, an “Approved Sale”), subject to the provisions set forth in paragraph 16(b), you shall vote for or furnish a written consent to vote your shares and raise no objections against such Approved Sale. In connection with any Approved Sale, the Company shall send a written notice at least ten business days prior to the consummation of any Approved Sale to all Participants setting forth the principal terms of the proposed Approved Sale. If the Approved Sale is structured as (i) a merger or consolidation, you shall waive any dissenters rights, appraisal rights or similar rights in connection with such merger or consolidation or (ii) a sale of stock, you shall agree to sell all of your shares of such stock and rights to acquire shares of such stock on the terms and conditions approved by the Board and the holders of a majority of the [Class A Common Stock] then outstanding. You shall take all necessary or desirable actions in connection with the consummation of the Approved Sale as requested by the Company.
(b) Your obligations under paragraph 16(a) with respect to the Approved Sale of the Company are subject to the satisfaction of the following conditions: (i) upon the consummation of the Approved Sale, each holder of [Class A Common Stock], shall receive the amount of consideration as if the Company were dissolved and completely liquidated; and (ii) you shall be given an opportunity to either (A) exercise the then exercisable portion of your Option prior to the consummation of the Approved Sale and participate in such sale as a holder of Class A Common Stock or (B) upon the consummation of the Approved Sale, receive in exchange for the then exercisable portion of your Option consideration equal to the amount determined by multiplying (1) the same amount of consideration per share of Class A Common Stock received by holders of Class A Common Stock in connection with the Approved Sale less the exercise price per share of Class A Common Stock of your Option by (2) the number of shares of Class A Common Stock represented the then exercisable portion of your Option.
(c) Purchaser Representative. If the Company or the holders of the Company’s securities enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the Securities Exchange Commission may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), you shall, at the request of the Company, appoint a purchaser representative (as such term is defined in Rule 501) reasonably acceptable to the Company. If you appoint the purchaser representative designated by the Company, the Company shall pay the fees of such purchaser representative, but if you decline to appoint the purchaser representative designated by the Company you shall appoint another purchaser representative (reasonably acceptable to the Company), and you shall be responsible for the fees of the purchaser representative so appointed.
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(d) Termination of Restrictions. The provisions of this paragraph 16 shall terminate when the Company has sold shares of its Class A Common Stock pursuant to a public offering registered under the Securities Act.
17 Remedies. The parties hereto (and the Investor as a third-party beneficiary) shall be entitled to enforce their rights under this Agreement specifically, to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights existing in their favor. The parties hereto acknowledge and agree that money damages would not be an adequate remedy for any breach of the provisions of this Agreement and that any party hereto (and any Investor as a third-party beneficiary) may, in its sole discretion, apply to any court of law or equity of competent jurisdiction for specific performance and/or injunctive relief (without posting bond or other security) in order to enforce or prevent any violation of the provisions of this Agreement.
18 Amendment. Except as otherwise provided herein, any provision of this Agreement may be amended or waived only with the prior written consent of you and the Company; provided that no provision of paragraph 12, 13, 14, 15, 16 or 17 or of this paragraph 18 may be amended or waived without the prior written consent of the Investor.
19 Successors and Assigns. Except as otherwise expressly provided herein, all covenants and agreements contained in this Agreement by or on behalf of any of the parties hereto shall bind and inure to the benefit of the respective successors and permitted assigns of the parties hereto whether so expressed or not.
20 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement.
21 Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which shall constitute an original, but all of which taken together shall constitute one and the same Agreement.
22 Descriptive Headings. The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement.
23 Governing Law. All questions concerning the construction, validity and interpretation of this Agreement shall be governed by the internal law, and not the law of conflicts, of Louisiana.
24 Notices. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be
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deemed to have been given when delivered personally or mailed by certified or registered mail, return receipt requested and postage prepaid, to the recipient. Such notices, demands and other communications shall be sent to you and to the Company and the Investor at the addresses indicated below:
| (a) | If to the Optionee: |
«FirstName» «LastName»
«Address1»
«Address2»
«City», «State» «PostalCode»
| (b) | If to the Company: |
▇▇▇▇’▇ ▇▇▇▇▇ Steak House, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
with copies to:
Madison Dearborn Capital Partners III, L.P.
c/o Madison Dearborn Partners, Inc.
Three First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
| (c) | If to the Investor: |
Madison Dearborn Capital Partners III, L.P.
Three First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇. ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
or to such other address or to the attention of such other person as the recipient party has specified by prior written notice to the sending party.
25 Third-Party Beneficiary. The Company and you acknowledge that the Investor is a third-party beneficiary under this Agreement.
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26 Entire Agreement. This Agreement constitutes the entire understanding between you and the Company, and supersedes all other agreements, whether written or oral, with respect to the acquisition by you of Class A Common Stock of the Company.
* * * *
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Please execute the extra copy of this Agreement in the space below and return it to the Company’s Secretary at its executive offices to confirm your understanding and acceptance of the agreements contained in this Agreement.
| Very truly yours,
▇▇▇▇’▇ ▇▇▇▇▇ Steak House, Inc. | ||
| By: | /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. | |
| Name: |
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. | |
| Title: |
VP Finance and CFO | |
| Enclosures: | 1. Extra copies of this Agreement |
2. Copy of the Plan
The undersigned hereby acknowledges having read this Agreement and the Plan and hereby agrees to be bound by all provisions set forth herein and in the Plan.
| Dated as of |
OPTIONEE |
|||||||
| «FirstName» «LastName» | ||||||||
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