EXHIBIT 10(d)
BRINKER INTERNATIONAL, INC.
STOCK OPTION AND INCENTIVE PLAN
SECTION 1
GENERAL
1.1 Purpose. The Brinker International, Inc. Stock Option
and Incentive Plan (the "Plan") has been established by Brinker
International, Inc. (the "Company") (i) to attract and retain
persons eligible to participate in the Plan; (ii) motivate
Participants, by means of appropriate incentives, to achieve long-
range goals; (iii) provide incentive compensation opportunities
that are competitive with those of other similar companies; and
(iv) further align Participants' interests with those of the
Company's other shareholders through compensation that is based
on the Company's common stock; and thereby promote the long-term
financial interest of the Company and the Related Companies,
including the growth in value of the Company's equity and
enhancement of long-term shareholder return.
1.2 Participation. Subject to the terms and conditions of
the Plan, the Committee shall determine and designate, from time
to time, from among the Eligible Employees, those persons who
will be granted one or more Awards under the Plan, and thereby
become "Participants" in the Plan. In the discretion of the
Committee, a Participant may be granted any Award permitted under
the provisions of the Plan, and more than one Award may be
granted to a Participant. Awards may be granted as alternatives
to or replacement of awards outstanding under the Plan, or any
other plan or arrangement of the Company or a Related Company
(including a plan or arrangement of a business or entity, all or
a portion of which is acquired by the Company or a Related
Company).
1.3 Operation, Administration and Definitions. The
operation and administration of the Plan, including the Awards
made under the Plan, shall be subject to the provisions of
Section 4 (relating to operation and administration). Capitalized
terms in the Plan shall be defined as set forth in the Plan
(including the definition provisions of Section 7 of the Plan).
SECTION 2
OPTIONS AND SARS
2.1 Definitions.
(a) The grant of an "Option" entitles the Participant
to purchase shares of Stock at an Exercise Price
established by the Committee. Options granted
under this Section 2 may be either Incentive Stock
Options or Non-Qualified Stock Options, as
determined in the discretion of the Committee. An
"Incentive Stock Option" is an Option that is
intended to satisfy the requirements applicable to
an "incentive stock option" described in section
422(b) of the Code. A "Non-Qualified Option" is an
Option that is not intended to be an incentive
stock option" as that term is described in section
422(b) of the Code.
(b) A stock appreciation right (an "SAR") entitles the
Participant to receive, in cash or Stock (as
determined in accordance with subsection 2.5),
value equal to all or a portion of the excess of:
(a) the Fair Market Value of a specified number of
shares of Stock at the time of exercise; over (b)
an Exercise Price established by the Committee.
2.2 Exercise Price. The "Exercise Price" of each Option
and SAR granted under this Section 2 shall be established by the
Committee or shall be determined by a method established by the
Committee at the time the Option or SAR is granted, except that
the Exercise Price shall not be less than 100% of the Fair Market
Value of a share of Stock as of the Pricing Date. For purposes of
the preceding sentence, the "Pricing Date" shall be the date on
which the Option or SAR is granted, except that the Committee may
provide that: (i) the Pricing Date is the date on which the
recipient is hired or promoted (or similar event), if the grant
of the Option or SAR occurs not more than 90 days after the date
of such hiring, promotion or other event; and (ii) if an Option
or SAR is granted in tandem with, or in substitution for, an
outstanding Award, the Pricing Date is the date of grant of such
outstanding Award.
2.3 Exercise. An Option and an SAR shall be exercisable in
accordance with such terms and conditions and during such periods
as may be established by the Committee.
2.4 Payment of Option Exercise Price. The payment of the
Exercise Price of an Option granted under this Section 2 shall be
subject to the following:
(a) Subject to the following provisions of this
subsection 2.4, the full Exercise Price for shares
of Stock purchased upon the exercise of any Option
shall be paid at the time of such exercise (except
that, in the case of an exercise arrangement
approved by the Committee and described in
paragraph 2.4(c), payment may be made as soon as
practicable after the exercise).
(b) The Exercise Price shall be payable in cash or by
tendering shares of Stock (by either actual
delivery of shares or by attestation, with such
shares valued at Fair Market Value as of the day
of exercise), or in any combination thereof, as
determined by the Committee.
(c) The Committee may permit a Participant to elect to
pay the Exercise Price upon the exercise of an
Option by authorizing a third party to sell shares
of Stock (or a sufficient portion of the shares)
acquired upon exercise of the Option and remit to
the Company a sufficient portion of the sale
proceeds to pay the entire Exercise Price and any
tax withholding resulting from such exercise.
2.5 Settlement of Award. Distribution following exercise
of an Option or SAR, and shares of Stock distributed pursuant to
such exercise, shall be subject to such conditions, restrictions
and contingencies as the Committee may establish. Settlement of
SARs may be made in shares of Stock (valued at their Fair Market
Value at the time of exercise), in cash, or in a combination
thereof, as determined in the discretion of the Committee. The
Committee, in its discretion, may impose such conditions,
restrictions and contingencies with respect to shares of Stock
acquired pursuant to the exercise of an Option or an SAR as the
Committee determines to be desirable.
SECTION 3
OTHER STOCK AWARDS
3.1 Definition. A Stock Award is a grant of shares of
Stock or of a right to receive shares of Stock (or their cash
equivalent or a combination of both) in the future.
3.2 Restrictions on Stock Awards. Each Stock Award shall
be subject to such conditions, restrictions and contingencies as
the Committee shall determine. These may include continuous
service and/or the achievement of Performance Measures. The
Committee may designate a single goal criterion or multiple goal
criteria for performance measurement purposes, with the
measurement based on absolute Company or business unit
performance and/or on performance as compared with that of other
publicly traded companies. If the right to become vested in a
Stock Award granted under this Section 3 is conditioned on the
completion of a specified period of service with the Company and
the Related Companies, without achievement of Performance
Measures or other objectives being required as a condition of
vesting, then the required period of service for vesting shall be
not less than three years (subject to acceleration of vesting, to
the extent permitted by the Committee, in the event of the
Participant's death, disability, change in control or involuntary
termination).
SECTION 4
OPERATION AND ADMINISTRATION
4.1 Effective Date. Subject to the approval of the
shareholders of the Company at the Company's 1998 annual meeting
of its shareholders, the Plan shall be effective as of September
3, 1998 (the "Effective Date"). The Plan shall be unlimited in
duration and, in the event of Plan termination, shall remain in
effect as long as any Awards under it are outstanding.
4.2 Shares Subject to Plan.
(a) (i) Subject to the following provisions of
this subsection 4.2, the maximum number
shares of Stock that may be delivered to
Participants and their beneficiaries under
the Plan shall be equal to the sum of: (I) 6
million shares of Stock and (II) any shares
of Stock that are represented by awards
granted under any prior plan of the Company
in which employees are eligible to
participate (the "Prior Plans"), which are
forfeited, expire or are canceled without
delivery of shares of Stock or which result
in the forfeiture of shares of Stock back to
the Company. The 6 million shares of Stock
described above in subsection 4.2(a)(i)(I)
may be issued over a period of not less than
three years from the Effective Date.
(ii) Any shares of Stock granted under the Plan
that are forfeited because of the failure to
meet an Award contingency or condition shall
again be available for delivery pursuant to
new Awards granted under the Plan. To the
extent any shares of Stock covered by an
Award are not delivered to a Participant or
beneficiary because the Award is forfeited or
canceled, or the shares of Stock are not
delivered because the Award is settled in
cash, such shares shall not be deemed to have
been delivered for purposes of determining
the maximum number of shares of Stock
available for delivery under the Plan.
(iii) If the Exercise Price of any stock
option granted under the Plan or any Prior
Plan is satisfied by tendering shares of
Stock to the Company (by either actual
delivery or by attestation), only the number
of shares of Stock issued net of the shares
of Stock tendered shall be deemed delivered
for purposes of determining the maximum
number of shares of Stock available for
delivery under the Plan.
(iv) Shares of Stock delivered under the Plan in
settlement, assumption or substitution of
outstanding awards (or obligations to grant
future awards) under the plans or
arrangements of another entity shall not
reduce the maximum number of shares of Stock
available for delivery under the Plan, to the
extent that such settlement, assumption or
substitution as a result of the Company or a
Related Company acquiring another entity (or
an interest in another entity).
(b) Subject to paragraph 4.2(c), the following
additional maximums are imposed under the Plan.
(i) The maximum number of shares of Stock that
may be issued by Options intended to be
Incentive Stock Options shall be 6 million
shares.
(ii) The maximum number of shares of Stock that
may be issued in conjunction with Awards
granted pursuant to Section 3 (relating to
Stock Awards) shall be 3 million shares.
(iii) The maximum number of shares that may be
covered by Awards granted to any one
individual pursuant to Section 2 (relating to
Options and SARs) shall be 500,000 shares
during any fiscal year.
(iv) The maximum payment that can be made for
awards granted to any one individual pursuant
to Section 3 (relating to Stock Awards) shall
be $1,000,000 for any single or combined
performance goals established for any fiscal
year. If an Award granted under Section
3 is, at the time of grant, denominated in
shares, the value of the shares of Stock for
determining this maximum individual payment
amount will be the Fair Market Value of a
share of Stock on the first day of the
applicable performance period.
(c) Subject to the provisions of Section 6 hereof, in
the event of a corporate transaction involving the
Company (including, without limitation, any stock
dividend, stock split, extraordinary cash
dividend, recapitalization, reorganization,
merger, consolidation, split-up, spin-off,
combination or exchange of shares), the Committee
may adjust Awards to preserve the benefits or
potential benefits of the Awards. Action by the
Committee may include adjustment of: (i) the
number and kind of shares which may be delivered
under the Plan; (ii) the number and kind of shares
subject to outstanding Awards; and (iii) the
Exercise Price of outstanding Options and SARs as
well as any other adjustments that the Committee
determines to be equitable.
4.3 Limit on Distribution. Distribution of shares of Stock
or other amounts under the Plan shall be subject to the
following:
(a) Notwithstanding any other provision of the Plan,
the Company shall have no liability to deliver any
shares of Stock under the Plan or make any other
distribution of benefits under the Plan unless
such delivery or distribution would comply with
all applicable laws (including, without
limitation, the requirements of the Securities Act
of 1933), and the applicable requirements of any
securities exchange or similar entity.
(b) To the extent that the Plan provides for issuance
of stock certificates to reflect the issuance of
shares of Stock, the issuance may be effected on a
noncertificated basis, to the extent not
prohibited by applicable law or the applicable
rules of any stock exchange.
4.4 Tax Withholding. Whenever the Company proposes or is
required to distribute Stock under the Plan, the Company may
require the recipient to remit to the Company an amount
sufficient to satisfy any Federal, state and local tax
withholding requirements prior to the delivery of any certificate
for such shares or, in the discretion of the Committee, the
Company may withhold from the shares to be delivered shares
sufficient to satisfy all or a portion of such tax withholding
requirements. Whenever under the Plan payments are to be made in
cash, such payments may be net of an amount sufficient to satisfy
any Federal, state and local tax withholding requirements.
4.5 Payment Shares. Subject to the overall limitation on
the number of shares of Stock that may be delivered under the
Plan, the Committee may use available shares of Stock as the form
of payment for compensation, grants or rights earned or due under
any other compensation plans or arrangements of the Company or a
Related Company, including the plans and arrangements of the
Company or a Related Company acquiring another entity (or an
interest in another entity).
4.6 Dividends and Dividend Equivalents. An Award may
provide the Participant with the right to receive dividends or
dividend equivalent payments with respect to Stock which may be
either paid currently or credited to an account for the
Participant, and may be settled in cash or Stock as determined by
the Committee. Any such settlements, and any such crediting of
dividends or dividend equivalents or reinvestment in shares of
Stock, may be subject to such conditions, restrictions and
contingencies as the Committee shall establish, including the
reinvestment of such credited amounts in Stock equivalents.
4.7 Payments. Awards may be settled through cash payments,
the delivery of shares of Stock, the granting of replacement
Awards, or combination thereof as the Committee shall determine.
Any Award settlement, including payment deferrals, may be subject
to such conditions, restrictions and contingencies as the
Committee shall determine. The Committee may permit or require
the deferral of any Award payment, subject to such rules and
procedures as it may establish, which may include provisions for
the payment or crediting of interest, or dividend equivalents,
including converting such credits into deferred Stock
equivalents.
4.8 Transferability. Except as otherwise provided by the
Committee, Awards under the Plan are not transferable except as
designated by the Participant by will or by the laws of descent
and distribution.
4.9 Form and Time of Elections. Unless otherwise specified
herein, each election required or permitted to be made by any
Participant or other person entitled to benefits under the Plan,
and any permitted modification, or revocation thereof, shall be
in writing filed with the Committee at such times, in such form,
and subject to such restrictions and limitations, not
inconsistent with the terms of the Plan, as the Committee shall
require.
4.10 Agreement With Company. At the time of an Award to a
Participant under the Plan, the Committee may require a
Participant to enter into an agreement with the Company (the
"Agreement") in a form specified by the Committee, agreeing to
the terms and conditions of the Plan and to such additional terms
and conditions, not inconsistent with the Plan, as the Committee
may, in its sole discretion, prescribe.
4.11 Limitation of Implied Rights.
(a) Neither a Participant nor any other person shall,
by reason of the Plan, acquire any right in or
title to any assets, funds or property of the
Company or any Related Company whatsoever,
including, without limitation, any specific funds,
assets, or other property which the Company or any
Related Company, in their sole discretion, may set
aside in anticipation of a liability under the
Plan. A Participant shall have only a contractual
right to the stock or amounts, if any, payable
under the Plan, unsecured by any assets of the
Company or any Related Company. Nothing contained
in the Plan shall constitute a guarantee that the
assets of such companies shall be sufficient to
pay any benefits to any person.
(b) The Plan does not constitute a contract of
employment, and selection as a Participant will
not give any employee the right to be retained in
the employ of the Company or any Related Company,
nor any right or claim to any benefit under the
Plan, unless such right or claim has specifically
accrued under the terms of the Plan. Except as
otherwise provided in the Plan, no Award under the
Plan shall confer upon the holder thereof any
right as a shareholder of the Company prior to the
date on which the individual fulfills all
conditions for receipt of such rights.
4.12 Evidence. Evidence required of anyone under the Plan
may be by certificate, affidavit, document or other information
which the person acting on it considers pertinent and reliable,
and signed, made or presented by the proper party or parties.
4.13 Action by Company or Related Company. Any action
required or permitted to be taken by the Company or any Related
Company shall be by resolution of its board of directors, or by
action of one or more members of the board (including a committee
of the board) who are duly authorized to act for the board, or
(except to the extent prohibited by applicable law or applicable
rules of any stock exchange) by a duly authorized officer of the
company.
4.14 Gender and Number. Where the context admits, words in
any gender shall include any other gender, words in the singular
shall include the plural and the plural shall include the
singular.
SECTION 5
COMMITTEE
5.1 Administration. The authority to control and manage
the operation and administration of the Plan shall be vested in
the Compensation Committee (the "Committee") in accordance with
this Section 5. The Committee shall be selected by the Board and
shall consist of two or more members of the Board.
5.2 Powers of Committee. The authority to manage and
control the operation and administration of the Plan shall be
vested in the Committee, subject to the following:
(a) Subject to the provisions of the Plan, the
Committee will have the authority and discretion
to select from among the Eligible Employees those
persons who shall receive Awards. to determine the
time or times of receipt, to determine the types
of Awards and the number of shares covered by the
Awards, to establish the terms, conditions,
performance criteria, restrictions, and other
provisions of such Awards, and (subject to the
restrictions imposed by Section 6) to cancel or
suspend Awards. In making such Award
determinations, the Committee may take into
account the nature of services rendered by the
individual, the individual's present and potential
contribution to the Company's success and such
other factors as the Committee deems relevant.
(b) Subject to the provisions of the Plan, the
Committee will have the authority and discretion
to determine the extent to which Awards under the
Plan will be structured to conform to the
requirements applicable to performance-based
compensation as described in Code section 162(m),
and to take such action, establish such
procedures, and impose such restrictions at the
time such Awards are granted as the Committee
determines to be necessary or appropriate to
conform to such requirements.
(c) Subject to the provisions of the Plan, the
Committee will have the authority and discretion
to establish terms and conditions of awards as the
Committee determines to be necessary or
appropriate to conform to applicable requirements
or practices of jurisdictions outside of the
United States.
(d) The Committee will have the authority and
discretion to interpret the Plan, to establish,
amend, and rescind any rules and regulations
relating to the Plan, to determine the terms and
provisions of any agreements made pursuant to the
Plan, and to make all other determinations that
may be necessary or advisable for the
administration of the Plan.
(e) Any interpretation of the Plan by the Committee
and any decision made by it under the Plan is
final and binding.
(f) Except as otherwise expressly provided in the
Plan, where the Committee is authorized to make a
determination with respect to any Award, such
determination shall be made at the time the Award
is made, except that the Committee may reserve the
authority to have such determination made by the
Committee in the future (but only if such
reservation is made at the time the Award is
granted and is expressly stated in the Agreement
reflecting the Award).
(g) In controlling and managing the operation and
administration of the Plan, the Committee shall
act by a majority of its then members, by meeting
or by writing filed without a meeting. The
Committee shall maintain and keep adequate records
concerning the Plan and concerning its proceedings
and acts in such form and detail as the Committee
may decide.
5.3 Delegation by Committee. Except to the extent
prohibited by applicable law or the applicable rules of a stock
exchange and subject to the prior approval of the Board, the
Committee may allocate all or any portion of its responsibilities
and powers to any one or more of its members and may delegate all
or any part of its responsibilities and powers to any person or
persons selected by it. Any such allocation or delegation may be
revoked by the Committee at any time.
5.4 Information to be Furnished to Committee. The Company
and Related Companies shall furnish the Committee with such data
and information as may be required for it to discharge its
duties. The records of the Company and Related Companies as to an
employee's or Participant's employment, termination of
employment, leave of absence, reemployment and compensation shall
be conclusive on all persons unless determined to be incorrect.
Participants and other persons entitled to benefits under the
Plan must furnish the Committee such evidence, data or
information as the Committee considers desirable to carry out the
terms of the Plan.
SECTION 6
ACCELERATION OF EXERCISABILITY
AND VESTING UNDER CERTAIN CIRCUMSTANCES
Notwithstanding any provision in this Plan to the contrary,
with regard to any Award of Options, SARs and Stock Awards to any
Participant, unless the particular grant agreement provides
otherwise, all Awards will become immediately exercisable and
vested in full upon the occurrence, before the expiration or
termination of such Option, SARs and Stock Awards or forfeiture
of such Awards, of any of the events listed below:
(a) a sale, transfer or other conveyance of all or
substantially all of the assets of the Company on
a consolidated basis; or
(b) the acquisition of beneficial ownership (as such
term is defined in Rule 13d-3 promulgated under
the Exchange Act) by any "person" (as such term is
used in Sections 13(d) and 14(d) of the Exchange
Act), other than the Company, directly or
indirectly, of securities representing 50% or more
of the total number of votes that may be cast for
the election of directors of the Company; or
(c) the commencement (within the meaning of Rule 14d-2
promulgated under the Exchange Act) of a "tender
offer" for stock of the Company subject to Section
14(d)(2) of the Exchange Act; or
(d) the failure at any annual or special meeting of
the Company's stockholders following an "election
contest" subject to Rule 14a-11 promulgated under
the Exchange Act, of any of the persons nominated
by the Company in the proxy material mailed to
stockholders by the management of the Company to
win election to seats on the Board, excluding only
those who die, retire voluntarily, are disabled or
are otherwise disqualified in the interim between
their nomination and the date of the meeting.
SECTION 7
AMENDMENT AND TERMINATION
The Committee may, at any time, amend or terminate the Plan,
provided that, subject to subsection 4.2 (relating to certain
adjustments to shares) and Section 6 hereof (relating to
immediate vesting upon certain events), no amendment or
termination may, in the absence of written consent to the change
by the affected Participant (or, if the Participant is not then
living, the affected beneficiary), adversely affect the rights of
any Participant or beneficiary under any Award granted under the
Plan prior to the date such amendment is adopted by the Board.
SECTION 8
DEFINED TERMS
For purposes of the Plan, the terms listed below shall be
defined as follows:
(a) Award. The term "Award" shall mean any award or
benefit granted to any Participant under the Plan,
including, without limitation, the grant of
Options, SARs, and Stock Awards.
(b) Board. The term "Board" shall mean the Board of
Directors of the Company.
(c) Code. The term "Code" means the Internal Revenue
Code of 1986, as amended. A reference to any
provision of the Code shall include reference to
any successor provision of the Code.
(d) The term "Eligible Employee" shall mean any
employee of the Company or a Related Company.
(e) Fair Market Value. For purposes of determining
the "Fair Market Value" of a share of Stock, the
following rules shall apply:
(i) If the Stock is at the time listed or
admitted to trading on any stock exchange,
then the "Fair Market Value" shall be the
mean between the lowest and highest reported
sale prices of the Stock on the date in
question on the principal exchange on which
the Stock is then listed or admitted to
trading. If no reported sale of Stock takes
place on the date in question on the
principal exchange, then the reported closing
asked price of the Stock on such date on the
principal exchange shall be determinative of
"Fair Market Value."
(ii) If the Stock is not at the time listed or
admitted to trading on a stock exchange, the
"Fair Market Value" shall be the mean between
the lowest reported bid price and highest
reported asked price of the Stock on the date
in question in the over-the-counter market,
as such prices are reported in a publication
of general circulation selected by the
Committee and regularly reporting the market
price of Stock in such market.
(iii) If the Stock is not listed or admitted
to trading on any stock exchange or traded in
the over-the-counter market, the "Fair Market
Value" shall be as determined in good faith
by the Committee.
(f) Exchange Act. The term "Exchange Act" means the
Securities Exchange Act of 1934, as amended.
(g) Related Companies. The term "Related Company"
means any company during any period in which it is
a "parent company" (as that term is defined in
Code section 424(e)) with respect to the Company,
or a "subsidiary corporation" (as that term is
defined in Code section 424(f)) with respect to
the Company.
(h) Stock. The term "Stock" shall mean shares of
common stock of the Company.