STOCK OPTION AGREEMENT
This Stock Option Agreement (the "Option Agreement")
dated as of May 8, 2000, provides for the grant of stock options
by VICORP Restaurants, Inc., a Colorado corporation (the
"Company"), to Xxxxxx X. Xxxxxxxx, an employee of the Company
(the "Optionee").
The Company has determined that the Optionee is to be
granted options to buy shares of the Company's common stock, par
value $.05 per share ("Common Stock"), on the terms and subject
to the conditions hereinafter provided.
I. NUMBER OF SHARES, OPTION PRICE, AND VESTING.
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A. The Company hereby grants to the Optionee non-
qualified options (the "Options") to purchase 100,000 shares of
Common Stock for the exercise price of $20.00 per share. The
Optionee shall not have any rights as a shareholder with respect
to the shares unless and until one or more certificates for such
shares are delivered to him upon the exercise of one or more of
the Options.
B. The options shall vest and become exercisable
according to the following schedule:
33,333 shares vest on May 8, 2000
33,333 shares vest on May 8, 2001
33,334 shares vest on May 8, 2002
C. In the event that the outstanding shares of the
Company's common stock are increased or decreased or changed into
or exchanged for a different number or kind of shares or other
securities of the Company or of another corporation, through
reorganization, merger, consolidation, liquidation,
recapitalization, stock split up, or a combination of shares or
dividends payable in stock of the class which is subject to this
Option Agreement, appropriate adjustment in the number of shares
subject to the Options shall be made so that the proportionate
number of shares subject to the Options shall be maintained as
before the occurrence of such event and an appropriate adjustment
shall be made to the exercise price.
D. Upon a change of control of the Company, all of
the Options shall immediately vest and become exercisable in
full. Change in control for purposes of this Agreement shall be
deemed to have occurred if:
1. Any "person" (as such term is used in
Sections 13(d) and 14(d)(2) of the Securities Exchange Act
of 1934, as amended) becomes the beneficial owner, directly
or indirectly, of securities of the Company representing
greater than or equal to fifty percent (50%) or more of the
combined voting power of the Company's then outstanding
securities;
2. During any period of twelve (12) months,
individuals who at the beginning of such period constitute
the Board of Directors of the Company cease for any reason
to constitute a majority thereof unless the election, or the
nomination for election by the Company's shareholders of
each new director was approved by a vote of at least a
majority of the directors then still in office who were
directors at the beginning of the period; or
3. A person (as defined in clause (1) above)
acquires (or, during the twelve (12) month period ending on
the date of the most recent acquisition by such person or
group of persons, has acquired) gross assets of the Company
that have an aggregate fair market value greater than or
equal to over fifty percent (50%) of the fair market value
of all of the gross assets of the Company immediately prior
to such acquisition or acquisitions.
E. Optionee acknowledges that the shares which are to
be reserved for issuance upon the exercise of the Options are not
at this time registered in accordance with applicable securities
laws. The Company agrees that upon receipt of a written request
by Optionee, it will, consistent with applicable securities laws
and regulations, promptly prepare and file with the Securities
and Exchange Commission an appropriate registration statement on
Form S-8 and/or Form S-3, depending upon whether the Options have
then been exercised (or any successor forms to such form
subsequently promulgated by the Securities and Exchange
Commission) pertaining to the shares covered by the Options and
will use its reasonable good faith efforts to cause such
registration statement to be declared effective as soon as
practical thereafter. The Company will bear the expense to
prepare and file such registration statement.
II. TERM.
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Each option granted shall expire ten years from the
date of grant, unless canceled or terminated earlier in
accordance with the terms of this Agreement.
III. EXERCISE OF OPTIONS.
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Only options which are vested may be exercised.
IV. MANNER OF EXERCISE.
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A. Notice to the Company: Each exercise of an option
shall be made by the delivery by the Optionee of written notice
of such election to the Corporation, either in person or by mail,
stating the number of shares with respect to which the option is
being exercised and specifying a date on which the shares will be
taken and payment made therefor. The date shall be at least
fifteen (15) days after the giving of such notice.
B. Issuance of Stock: Subject to any law or
regulation of the Securities and Exchange Commission or other
body having jurisdiction requiring an action to be taken in
connection with the shares specified in a notice of election
before the shares can be delivered to the Optionee, on the date
specified in the notice of election, the Company shall deliver,
or cause to be delivered to the Optionee stock certificates for
the number of shares with respect to which the option is being
exercised, against payment therefor. In the event of any failure
to take and pay, on the date stated, for the full number of
shares specified in the notice of election, the option shall
become inoperative only as to those shares which are not taken,
but shall continue with respect to any remaining shares subject
to the option as to which exercise has not yet been made.
V. ASSIGNMENT.
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Any option granted under the Plan shall not be
assigned, pledged, or hypothecated in any way, shall not be
subject to execution, and shall not be transferable other than by
will or the laws of descent and distribution. Any attempted
assignment or other prohibited disposition shall be null and
void.
VI. TERMINATION.
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A. Termination Other Than At Death Or Disability: If
the Optionee terminates his position as an Employee of the
Corporation for any reason other than death or disability, any
unexercised options (whether vested or unvested) shall be
canceled three (3) months after the effective date of the
Optionee's termination. No options shall vest subsequent to the
date of termination of employment.
B. Termination At Death Or Disability: In the event
of the death of the Optionee, any option held by him at the time
of his death shall be transferred as provided in his will or by
the laws of descent and distribution, and may be exercised by
such transferee at any time within twelve months after the date
of death, to the extent the option is exercisable on the date of
death, and provided it is exercised within the time prescribed in
Article II hereof. In the event of the disability of the
Optionee, any option held by him may be exercised in whole or in
part, by the Optionee or his personal representative at any time
within twelve months after the date of disability, to the extent
the option is exercisable on the date of disability, and provided
that it is exercised within the time prescribed in Article II
hereof. Disability and time of disability shall be determined by
the Board.
VII. FAILURE TO ENFORCE NOT A WAIVER.
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The failure of the Company to enforce at any time any
provision of this Option Agreement shall in no way be construed
to be a waiver of such provision or of any other provision
hereof.
VIII. SEVERABILITY.
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If any provision of this Option Agreement shall be held
to be illegal, invalid, or unenforceable under any applicable
law, then such contravention or invalidity shall not invalidate
the entire Option Agreement. Such provision shall be deemed to
be modified to the extent necessary to render it legal, valid,
and enforceable, and if no such modification shall render it
legal, valid, and enforceable, then this Option Agreement shall
be construed as if not containing the provision held to be
invalid, and the rights and obligations of the parties shall be
construed and enforced accordingly.
IX. COMPLETE AGREEMENT.
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This Option Agreement between Optionee and the Company
embodies the complete agreement and understandings with respect
to the subject matter hereof between the parties and supersede
and preempt any prior understandings, agreements, or
representations by or among the parties, written or oral, which
may have related to the subject matter hereof in any way.
X. GOVERNING LAW.
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This Option Agreement shall be governed by and
construed according to the laws of the State of Colorado.
IN WITNESS WHEREOF, the Company has executed this
Option on the day and year first above-written.
VICORP Restaurants, Inc.
a Colorado corporation
By /s/ Xxxxxxx X. Xxxxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxxxx, Chairman
The undersigned hereby accepts and agrees to all terms
and provisions of the foregoing Option Agreement.
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, Optionee
This is Page 4 of a 4-page Option Agreement between VICORP
Restaurants, Inc. and Xxxxxx X. Xxxxxxxx dated May 8, 2000.
