EXHIBIT 10.9(9)(b)
CHART HOUSE ENTERPRISES, INC.
1996 STOCK OPTION PLAN AGREEMENT
AGREEMENT dated as of ______________, 19___ by and between Chart House
Enterprises, Inc., a Delaware corporation (the "Company") and ________________
_______________ (the "Optionee").
W I T N E S S E T H:
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1. Grant of Option. Pursuant to the provisions of the Chart House
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Enterprises, Inc. 1996 Stock Op Plan (the "Plan"), the Company hereby grants to
the Optionee, subject to the terms and conditions of the Plan (as it presently
exists and as it may hereafter be amended), and subject to the further terms and
conditions hereinafter set forth, the right and option to purchase from the
Company all or any part of an aggregate of _______ shares (the "Shares") of the
Company's common stock ("Common Stock") at the purchase price of $_______ per
share, such option to be exercised as hereinafter provided. This option (the
"Option") is not intended to be and will not be treated as, an incentive stock
option within the meaning of Section 422A of the Internal Revenue Code of 1986,
as amended (the "Code"). The number of Shares with respect to which this Option
is exercisable, and the purchase price with respect to each Share to be acquired
pursuant to the exercise of the Option herein granted, each are subject to
adjustment under certain circumstances, as more fully set forth in the Plan and
in Section 7 hereof entitled "Adjustments." The term "Common Stock" as used
herein shall include any other class of stock or other securities resulting from
such adjustment. Capitalized terms not otherwise defined herein shall have the
meanings given to those terms in the Plan.
2. Duration of Option. The Option herein granted, to the extent not
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earlier exercised, will expire at 11:59 p.m. on _______________, being ________
(___) years from the date of grant of this Option, except that the term of this
Option is subject to earlier termination pursuant to Section 9 of the Plan and
Section 3 of this Agreement.
3. Exercise of Option; Vesting Schedule.
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(a) The Vested Portion (as hereinafter defined) of the Option may be
exercised to the extent not previously exercised in whole or in part at any
time, or from time to time, prior to the expiration of the Option.
(b) The "Vested Portion" of the Option means the percentage (set forth
in the table below) of the total number of Shares specified in Section 1 above,
for which the Option is exercisable:
Period Ending on Date Vested Portion
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(1) One Year After 20%
Date of Grant
(2) Two Years After 40%
Date of Grant
(3) Three Years After 60%
Date of Grant
(4) Four Years After 80%
Date of Grant
(5) Five Years After 100%
Date of Grant
(c) This Option shall terminate prior to the expiration of its term
upon the Optionee's Termination of Employment (as defined in the Plan) and in
the event of Termination of Employment of Optionee, the Optionee may exercise
this Option to the extent of the Vested Portion of the Option as of the date of
Termination of Employment as follows:
(1) In the case of Termination of Employment due to permanent and
total disability within the meaning of Section 22(e)(3) of the Code, or death,
the earlier of the scheduled expiration date set forth in Section 2 above or one
(1) year following such Termination of Employment;
(2) In the case of Termination of Employment due to retirement, the
earlier of the scheduled expiration date set forth in Section 2 above or ninety
(90) days from the date of such Termination of Employment;
(3) In the case of Termination of Employment for any reason other
than retirement, permanent and total disability, death or resulting from a
discharge for good cause (as determined by the Committee in its sole
discretion), the earlier of the scheduled expiration date set forth in Section 2
above or ninety (90) days following such Termination of Employment;
(4) In the case of Termination of Employment resulting from a
discharge for good cause (as determined by the Committee in its sole
discretion), the date of such Termination of Employment.
(d) If, during the term of this Option, in the event of a "Change in
Control" of the Company (as defined in the Plan) or in the event of a
reorganization, merger, consolidation, recapitalization, reclassification, stock
split-up, stock dividend or combination or other adjustment or event which
results in shares of Common Stock being exchanged for or converted into cash,
securities or other property, the Committee may, in its absolute discretion
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and upon such terms as it deems appropriate, provide by resolution, adopted
prior to such event, that at some time prior to the effective date of such
event, this Option shall be exercisable as to all the Shares covered hereby,
notwithstanding that this Option may not yet have become fully exercisable under
Section 3(b); provided, however, that this acceleration of exercisability shall
not take place if:
(1) This Option becomes unexercisable under Section 3(c) prior
to the effective date of such event; or
(2) In connection with the Change in Control or other event or
transaction, provision is made for an assumption of this Option or a
substitution therefor of a new option by a successor corporation.
The Committee may make such determination and adopt such rules and
conditions as it, in its absolute discretion, deems appropriate in connection
with such acceleration of exercisability, including, but not by way of
limitation, provisions to ensure that any such acceleration and resulting
exercise shall be conditioned upon the consummation of the contemplated Change
in Control or other event or transaction and determinations regarding whether
provisions for assumption or substitution have been made in accordance with
subsection (d)(2) above.
4. Option Exercise Procedure. The Option granted hereunder may be
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exercised in whole or in part, and may be exercised in part from time to time,
all subject to the limitations on exercise set forth in the preceding section.
Exercise shall be accomplished by compliance with all applicable rules
established by the Committee and by delivery to the Company of a timely written
notice of election to exercise in the form attached hereto as Exhibit "1," which
shall be irrevocable upon delivery to the principal office of the Company, and
addressed to the attention of the Committee or to the Secretary of the Company,
accompanied by payment of the purchase price for the Shares with respect to
which the Option is exercised. The minimum number of Shares with respect to
which this Option may be exercised at any one time is fifty (50), except with
respect to the final exercise of this Option this minimum shall not apply. In no
event may this Option be exercised for any number of Shares that would require
the issuance of anything other than whole Shares.
5. Payment of Option Price. At the time of exercise, the purchase
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price of the Shares as to which the Option is exercised shall be tendered in
full to the Company. The purchase price of the Shares shall be paid:
(a) In cash (including by check) for the Shares with respect to
which the Option or portion thereof is exercised; or
(b) With the consent of the Committee, through the delivery of
shares of Common Stock owned by Optionee, duly endorsed for transfer to the
Company with a Fair Market Value on the date of delivery equal to the aggregate
exercise price of the Option or exercised portion thereof; or
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(c) With the consent of the Committee, through the surrender of
shares of Common Stock then issuable upon exercise of the Option having a Fair
Market Value on the date of exercise of the Option equal to the aggregate
exercise price of the Option or exercised portion thereof; or
(d) With the consent of the Committee, through the delivery of a
full recourse promissory note bearing interest (at no less than the rate as
shall then preclude the imputation of interest under the Code) and payable upon
those terms as may be prescribed by the Committee. The Committee may also
prescribe the form of the note and the security to be given for the note. The
Option may not be exercised, however, by delivery of a promissory note or by a
loan from the Company when or where the loan or other extension of credit is
prohibited by law; or
(e) With the consent of the Committee any combination of the
consideration provided in the foregoing subparagraphs (a), (b), (c) and (d).
6. Investment Representations. Optionee hereby represents, warrants
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and covenants that none of the Shares purchased upon exercise of the Option will
be distributed in violation of applicable federal and state laws and
regulations. Upon exercise of the Option, the Optionee shall be deemed to have
reaffirmed, as of the date of exercise, the representations made herein. The
Committee may, in its absolute discretion, take whatever additional actions it
deems appropriate to insure the observance and performance of such
representations and agreements of Optionee and to effect compliance with
applicable federal and state securities laws and regulations.
7. Adjustments. In the event that each of the outstanding shares of
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Common Stock of the Company are hereafter changed into or exchanged for cash or
a different number or kind of shares of stock or other securities of the Company
or another corporation by reason of a reorganization, merger, consolidation,
recapitalization, reclassification, stock split-up, stock dividend or
combination of shares, then for each share of Common Stock of the Company
subject to the Plan (whether or not such shares are at the time subject to
outstanding Options) there shall be substituted and exchanged therefor the
number and kind of shares of stock or other securities into which each
outstanding share of Common Stock of the Company shall be so changed or
exchanged to the end that the proportionate interest of the holder of the Option
shall, to the extent practicable, be maintained as before the occurrence of such
event. Such adjustment in the outstanding Option shall be made without change in
the total price applicable to the unexercised portion of the Option but with a
corresponding adjustment in the exercise price per Share.
8. Conditions to Issuance of Stock Certificates. The shares of stock
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deliverable upon the exercise of the Option, or any portion thereof, may be
either previously authorized but unissued shares or issued shares which have
then been reacquired by the Company. Such shares shall be fully paid and non-
assessable. The Company shall not be required to issue or deliver any
certificate or certificates for Shares of Common Stock purchased upon the
exercise of the Option or portion thereof prior to fulfillment of all of the
following conditions: (a) the admission of the Shares to listing on all stock
exchanges, if any, on which that class of stock is then listed; (b) the
completion of any registration or other qualification of the Shares under any
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state or federal law or under the rulings or regulations of the Securities and
Exchange Commission or any other governmental regulatory body, which the
Committee shall, in its absolute discretion, deem necessary or advisable; (c)
the obtaining of any approval or other clearance from any state or federal
governmental agency which the Committee shall, in its absolute discretion,
determine to be necessary or advisable; (d) the payment to the Company of all
amounts which it is required to withhold under federal, state or local law in
connection with the exercise of the Option; and (e) the lapse of such reasonable
period of time following the exercise of the Option as the Committee may from
time to time establish for reasons of administrative convenience.
9. Nontransferability. This Option shall not be transferable other
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than by will or by the laws of descent and distribution. During the lifetime of
the Optionee, this Option shall be exercisable by the Optionee only. This
Option shall not be pledged or hypothecated in any way and shall not be subject
to execution, attachment, or similar process, without the express written
consent of the Committee.
10. Rights of Stockholder. The Optionee shall have no rights as a
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stockholder with respect to any Shares subject to this Option prior to the date
of issuance to him of a certificate or certificates for those Shares.
11. Consideration to Company. In consideration of the granting of
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this Option by the Company, the Optionee agrees to render faithful and efficient
services as an employee to the Company, a parent corporation or a subsidiary
corporation for a period of at least one (1) year from the date this Option is
granted. Nothing in this Agreement or in the Plan shall confer upon the Optionee
any right to continue as an employee to the Company, any parent corporation or
any subsidiary corporation, or shall interfere with or restrict in any way the
rights of the Company, its parent corporations and its Subsidiary Corporations,
which are hereby expressly reserved, to discharge the Optionee at any time for
any reason whatsoever, with or without cause.
12. Compliance with Law and Regulations. This Option and the
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obligation of the Company to sell and deliver shares shall be subject to
applicable federal and state laws, rules and regulations, and to such approvals
by any government or regulatory agency as may be required.
13. Binding Effect. The Optionee hereby acknowledges receipt of a copy
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of the Plan (attached hereto as Exhibit "2") and agrees to be bound by all the
terms and provisions thereof. The terms of the Plan as it presently exists, and
as it may hereafter be amended, are deemed incorporated herein by reference, and
any conflict between the terms of this Agreement and the provisions of the Plan
shall be resolved by the Committee, whose determination shall be final and
binding on all parties. In general, and except as otherwise determined by the
Committee, the provisions of the Plan shall be deemed to supersede the
provisions of this Agreement to the extent of any conflict between the Plan and
this Agreement.
14. Notices. Any notice hereunder to the Company shall be addressed to
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Chart House Enterprises, Inc., 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxxxxxx
00000, Attention: Secretary. Any notice hereunder to the Optionee shall be
addressed to him at the address set
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forth below, subject to the right of either party to designate at any time
hereafter in writing a different address.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer and the Optionee, in acceptance of the
above-mentioned Option, subject to the terms of the Plan and this Agreement, has
executed this Agreement, all as of the day and year first above written.
CHART HOUSE ENTERPRISES, INC. __________________________, Optionee
By: Address of Optionee:
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Title:
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EXHIBIT "1"
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To: Chart House Enterprises, Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Secretary
Subject: Notice of Intention to Exercise Option
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I am the "Optionee" under the Chart House Enterprises, Inc. 1996 Stock
Option Plan Agreement dated _____________, 19__ (the "Agreement"). Pursuant to
the Agreement, I hereby provide you with official notice that I elect to
exercise my Option to purchase Shares as follows:
Number of Shares: ________________
Mode of Payment: ________________
I understand and agree that the determination of the Fair Market Value
of the Shares issued on this exercise of my option shall be made as of the date
that this Notice of Exercise is received by the Company in accordance with
Sections 2 and 7 of the Chart House Enterprises, Inc. 1996 Stock Option Plan.
Concurrently herewith, I have paid any amounts required to be withheld to
satisfy any applicable tax withholding as a result of the exercise of my option.
I understand that this election is irrevocable once it is effective in
accordance with the terms of this Agreement.
In connection with such exercise, I hereby reaffirm that the
representations and warranties set forth in Section 6 of the Agreement are now
true and correct and in full force and effect with respect to the Shares
purchased.
The certificate for the Shares purchased should be forwarded to me at:
Address: _______________________
Signed: _______________________
Print Name: _______________________
Date: _______________________
EXHIBIT "2"
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[ATTACH A COPY OF THE 1996 STOCK OPTION PLAN]
EXHIBIT "2"
