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Exhibit 10.24
EXHIBIT A
OPTION AGREEMENT
Agreement dated as of August 19, 1999 (the "Effective Date")
between Cooker Restaurant Corporation, an Ohio corporation (the
"Company") and the Employee executing this Agreement (the
"Employee").
Preliminary Statement
This Agreement sets forth the terms pursuant to which the
Employee shall have the right to purchase from the Company (the
"Option") a total of 299,300 shares of common stock of the Company,
without par value (the "Common Stock"). The Option is a non-qualified
stock option, and not an incentive stock option under Section 422 of the
Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, for good and valuable consideration, the
receipt of which is hereby acknowledged, the parties to this Agreement
agree as follows:
1. Definitions. As used in this Agreement, the following
terms shall have the following respective meanings:
(a) Act shall mean the Securities Act of 1933,
as amended.
(b) Effective Time of Termination of
Employment. For purposes of this Agreement, unless the Company
otherwise agrees in writing, Termination of Employment shall be
effective immediately upon the giving of written or oral notice of such
Termination to the Employee.
(c) Expiration Date. With respect to any
Optioned Shares, Expiration Date shall mean 5 p.m. Eastern Standard
Time on August 19, 2009.
(d) Optioned Stock or Option Shares shall mean
the Shares of Common Stock of the Company which the Employee may
purchase pursuant to the terms of this Agreement.
(e) Purchase Price shall mean $4.43 for each
share of Common Stock.
(f) SEC shall mean the Securities and Exchange
Commission.
(g) Termination of Employment shall mean the
termination by the Company of the employment of the Employee for any
reason whatsoever or the voluntary termination by the Employee of
his or her employment with the Company.
(h) Unvested Shares shall mean any shares of
Optioned Stock which are not Vested Shares.
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(i) Vested Shares shall mean (i) 290,955 shares
of Optioned Stock which shall vest cumulatively in thirty-five equal
monthly installments of 8,313 each on the nineteenth calendar day of
each of the thirty-five calendar months following the Effective Date
(such that the first 8,313 shares vest on September 19, 1999), and (ii)
8,345 shares of Optioned Stock which shall vest on the nineteenth
calendar day of the thirty-sixth calendar month following the Effective
Date.
2. Grant of Option to Employee. Simultaneously with
the execution and delivery of this Agreement, the Employee is granted the
Option to purchase the Optioned Stock for the Purchase Price, upon the
terms and conditions set forth in this Agreement.
3. Exercise of Option.
(a) The Option provided for in this Agreement
may be exercised in accordance with its terms, but only by the Employee
or, in the event of the Employee's death, any duly qualified
representative of Employee's estate, and only with respect to any Vested
Shares. It may be exercised in whole at any time or in part from time
to time prior to the Expiration Date. No fractional shares of Common
Stock will be issued. The Employee may exercise this purchase right by
giving written notice of such exercise at the general corporate offices
of the Company located at 5500 Village Boulevard, West Palm Beach,
Florida, 33407 (or at such other agency or office of the Company as it
may designate by notice in writing to the Employee) and by payment to
the Company of the Purchase Price in cash or by check for each Vested
Share being purchased. In the event of any exercise of the Options
provided for in this Agreement, certificates for the shares of Common
Stock so purchased, registered in the name of the person entitled to
receive the same, shall be delivered to the Employee within a
reasonable time, not exceeding ten days after the Option shall have
been so exercised. The person in whose name any certificates for
shares of Common Stock is issued upon exercise of any
Option shall for all purposes be deemed to have become the holder of
record of such shares on the date on which the Option was surrendered
and payment of the Purchase Price made, irrespective of the date of
delivery of such certificate, except that, if the date of such
surrender and payment is a date when the stock transfer books of the
Company are closed, such person shall be deemed to have become the
holder of record of such shares at the close of business on the
next succeeding date on which the stock transfer books are open.
(b) In lieu of exercising the Option in the
manner set forth in sub-paragraph 3(a) above, this Option may be
exercised without payment of any other consideration, commission, or
remuneration, by presentation and surrender of the Option to the
Company, together with a written notice of the Employee's intention to
effect a cashless exercise ("Notice of Cashless Exercise") in the form
attached as Exhibit "A", duly executed. In the event of a Cashless
Exercise, the number of shares to be issued in exchange for the Option
will be computed using the following formula:
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X = Y (A-B)
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A
where:
X = the number of shares of Common Stock to
be issued to the Employee.
Y = the number of shares of Common Stock for
which this Option is being exercised.
A = the Closing Bid Price. The Closing Bid Price
means the closing bid price per share of the Common Stock on the
last business day prior to the date of receipt of the Option and
the Notice of Cashless Exercise, on the principal national
securities exchange in the United States on which the Common
Stock is listed or admitted to trading, or if the Common Stock
is not listed or admitted to trading on any such national
securities exchange, the average of the highest reported bid and
lowest reported asked price, on such day, as furnished by the National
Association of Securities Dealers, Inc. ("NASDAQ") through its
automated quotation system or a similar organization if NASDAQ is no
longer reporting such information; provided, however, that if there
are no such quotations or if it is determined that the fair market
value is not properly reflected by such quotation or the Common
Stock is not traded on an exchange or over the counter, fair market
value shall be determined by such other method as the Company
determines to be reasonable.
B = the Option Exercise Price
For purposes of Rule 144 and sub-section (d)(3)(iii) thereof, it is
intended, understood and acknowledged that the Common Stock
issuable upon exercise of this Option in a cashless exercise
transaction shall be deemed to have been acquired at the time this
Option was issued. Moreover, it is intended, understood and
acknowledged that the holding period for the Common Stock
issuable upon exercise of this Option in a cashless exercise
transaction shall be deemed to have commenced on the date this
Option was issued. Notwithstanding anything to the contrary
contained herein, this Option may not be exercised in a cashless
exercise transaction if, on the Date of Exercise, the shares of
Common Stock to be issued upon exercise of this Option would
upon such issuance be then registered pursuant to an effective and
current registration statement.
4. Adjustment of Number of Option Shares.
(a) If, at any time after the date of this
Agreement, the number of shares of Common Stock outstanding is
increased by a stock dividend payable in shares of Common Stock or by a
subdivision or split-up of shares of Common Stock, then, following the
record date fixed for the determination of holders of Common Stock
entitled to receive such stock dividend, subdivision or split-up, the
Purchase Price shall be appropriately decreased and the number of shares
of Optioned Stock thereafter issuable on exercise of the Option shall be
increased in proportion to such increase in outstanding shares.
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(b) If, at any time after the date of this
Agreement, the number of shares of Common Stock outstanding is
decreased by a combination of the outstanding shares of Common Stock,
then, following the record date for such combination, the Purchase Price
shall be appropriately increased and the number of shares of Common
Stock issuable on exercise of this Option shall be decreased in
proportion to such decrease in outstanding shares.
5. Representations, Warranties and Agreements of the
Employee with respect to registration of the sale of the Optioned Stock. If
at the time the Employee elects to exercise this Option, the issuance of the
underlying shares of Optioned Stock has not been registered under the Act,
the Employee agrees that such Optioned Stock may only be issued if such
issuance is a transaction exempt from the registration requirements of the
Act and that the Optioned Stock must be held indefinitely unless a
subsequent disposition thereof is registered under the Act or the
transaction is exempt from registration. If the transaction is not exempt
from the provisions of the Act, in connection with any such sale, the
Employee also agrees that the issuance of all or any portion of the
Optioned Stock or its transfer, as the case may be, is subject to the receipt
by the Company at the time of its issuance or transfer of an opinion of its
counsel that the issuance of such shares is exempt from registration
pursuant to an exemption provided for in the Act, and that the Company
will not be liable for any damages incurred by Employee in the event such
an opinion cannot reasonably be obtained.
6. This Agreement shall not entitle the Employee to
any right or claim to be employed as an employee of the Company or limit
the right of the Company to terminate the employment of the Employee or
to change the terms of such employment. This Agreement will not entitle
the Employee to any voting rights or other rights as a stockholder of the
Company.
7. Legends. Unless issued pursuant to an effective
Registration Statement filed pursuant to the provisions of the Act, all stock
certificates representing Optioned Stock issued to the Employee shall have
affixed thereto a legend substantially in the following form:
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"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933. THESE SECURITIES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM UNDER SAID ACT. THE SALE, TRANSFER,
ASSIGNMENT, PLEDGE OR ENCUMBRANCE OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
CONDITIONS OF AN OPTION AGREEMENT FOR THE PURCHASE OF
RESTRICTED STOCK BETWEEN COOKER RESTAURANT CORPORATION AND ONE OF ITS
EMPLOYEES. COPIES OF SUCH AGREEMENT MAY BE OBTAINED AT
NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD
OF THIS CERTIFICATE TO THE SECRETARY OF COOKER
RESTAURANT CORPORATION."
8. Notices. All notices or other communications
which are required or permitted hereunder shall be in writing and
sufficient if delivered personally or sent by air courier or first class or
certified mail addressed as follows:
If to the Employee: At the address specified at the foot of
this Agreement
If to the Company: Cooker Restaurant Corporation
5500 Village Boulevard
West Palm Beach, FL 33407
Attn: Senior Vice President,
Operations
or to such other address as the party to whom notice is to be given may
have furnished to the other party in writing in accordance herewith. All
notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given
on the date of delivery if personally delivered; on the business day after
the date when sent if sent by air courier; and on the third business day after
the date when sent if sent by mail, in each case addressed to such party as
provided in this Section or in accordance with the latest unrevoked
direction from such party.
9. Governing Law. This Agreement shall be governed
by, and construed in accordance with, (a) the laws of the State of Florida
applicable to contracts made and to be performed wholly therein and (b)
the laws of the State of Ohio applicable to corporations organized under
the laws of such state.
10. Entire Agreement. This Agreement contains the
entire agreement between the parties hereto with respect to the transactions
contemplated herein and supersedes all previously written or oral
negotiations, commitments, representations and agreements.
11. Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original, but
all of which shall constitute one and the same instrument.
12. Amendments. This Agreement, or any provisions
hereof, may not be amended, changed or modified without the prior
written consent of each of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered.
COOKER RESTAURANT CORPORATION
By: /s/Glenn W. Cockburn
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Glenn W. Cockburn Senior Vice-
President, Operations
ACCEPTED AND AGREED TO:
/s/ Henry R. Hillenmeyer
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Signature: Henry R. Hillenmeyer
Social Security Number: [Required]
ADDRESS OF EMPLOYEE
8 Foxhall Close
Nashville, TN 37215