Non-Employee Director SOP/DGR/Execution A
COOKER RESTAURANT CORPORATION
2000 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
1. Purpose of Plan: The purpose of the 2000 Non-Employee
Director Stock Option Plan (the "Plan") is to attract and retain the
services of experienced and knowledgeable independent directors of
Cooker Restaurant Corporation, an Ohio corporation (the
"Corporation"), and to provide additional incentive for such directors
to continue to work for the best interests of the Corporation and its
shareholders through an investment interest in the future success of
the Corporation.
2. Administration: The Plan shall be administered by the
Board of Directors of the Corporation (the "Board") or, at the
election of the Board, by the Compensation Committee of the Board (the
"Committee"; and with the Board, the "Administrator"). Subject to the
provisions of the Plan, the Administrator shall grant stock options
under the Plan and is authorized to interpret the Plan, to promulgate,
amend and rescind rules and regulations relating to the Plan and to
make all other determinations necessary or advisable for its
administration. Interpretation and construction of any provision of
the Plan by the Administrator shall be final, conclusive, and binding
upon the Corporation and the Participant.
3. Indemnification of Administrator: In addition to such
other rights of indemnification as they may have, the members of the
Administrator shall be indemnified by the Corporation against the
reasonable expenses, including attorneys' fees, actually and
necessarily incurred in connection with the defense of any action,
suit or proceeding, or in connection with any appeal therein, to which
they or any of them may be a party by reason of any action taken or
failure to act under or in connection with the Plan or any option
granted hereunder, and against all amounts paid by them in settlement
thereof (provided such settlement is approved by independent legal
counsel selected by the Corporation) or paid by them in satisfaction
of a judgment in any such action, suit or proceeding, except in
relation to matters as to which it shall be adjudged in such action,
suit or proceeding that such member of the Administrator has acted in
bad faith; provided, however, that within sixty (60) days after
receipt of notice of institution of any such action, suit or
proceeding a member of the Administrator shall offer the Corporation
in writing the opportunity, at its own cost, to handle and defend the
same.
4. Maximum Number of Shares Subject to Plan: The maximum
number of shares with respect to which options may be granted under
the Plan shall be in the aggregate of Two Hundred Thousand (200,000)
shares of common shares, without par value, of the Corporation (the
"Common Shares"), which may consist in whole or in part of the
authorized and unissued Common Shares of the Corporation or shares of
Common Shares purchased on the open market or from private sources.
If an option is canceled, expires or terminates for any reason without
having been fully exercised, the number of shares with respect to
which the option was not exercised at the time of its cancellation,
expiration or termination shall again become available for the grant
of options under the Plan.
The number of shares subject to each outstanding option, the
number of shares subject to each option to be granted under the Plan,
the option price with respect to outstanding options, and the
aggregate number of shares remaining available under the Plan shall be
subject to such adjustment as the Administrator, in its discretion,
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Non-Employee Director SOP/DGR/Execution A
deems appropriate to reflect such events as stock dividends, stock
splits, recapitalizations, mergers, consolidations or reorganizations
of or by the Corporation, provided, however, that no fractional shares
shall be issued pursuant to the Plan, no options may be granted under
the Plan with respect to fractional shares, and any fractional shares
resulting from such adjustments shall be eliminated from any
outstanding option.
5. Eligibility for and Grant of Options:
(a) Eligibility. Each member of the Board who otherwise (i) is
not presently an employee of the Corporation, (ii) is not a former
employee still receiving compensation for prior services (other than
benefits under a tax-qualified pension plan), and (iii) is not
currently receiving remuneration from the Corporation in any capacity
other than as a director shall be eligible for the grant of stock
options under the Plan (a "Participant").
(b) Initial Option Grants. In addition to any other grants made
pursuant to the terms of the Plan, each Participant who is first
elected to the Board at any time after January 1, 2000 shall
automatically receive a one-time grant of an option to purchase Ten
Thousand (10,000) shares of the Common Shares of the Corporation
(subject to adjustment as provided in Paragraph 4). Any such award
shall be made within one month after the date such Participant is
first elected to the Board, but in no event prior to the date the Plan
is approved by the shareholders of the Corporation in accordance with
Section 15.
(c) Annual Option Grants. In addition to any other grants made
pursuant to the terms of the Plan, beginning with the annual meeting
of the shareholders of the Corporation pursuant to which the Plan is
approved, each year on the date of the annual meeting of the
shareholders of the Corporation, there shall automatically be granted
to each Participant who is serving on or elected to the Board on such
date and who attended at least seventy-five per cent (75%) of the
total number of meetings of the Board (and committees thereof on which
the Participant served) held during the immediately preceding calendar
year (or if the Participant has served for less than a full calendar
year, such Participant attended at least seventy-five per cent (75%)
of the total number of meetings of the Board and committees which were
held during that period), an option to purchase Seven Thousand Five
Hundred (7,500) shares of the Common Shares of the Corporation
(subject to adjustment as provided in Paragraph 4).
(d) Discretionary Option Grants. Subject to the terms of the
Plan, the Administrator may grant Participants such number of stock
options as the Administrator may determine from time to time in
addition to those grants made pursuant to the terms of Section 5(b)
and 5(c) hereof.
(e) Nonqualified Stock Options. The options to be granted under
the Plan shall be nonqualified stock options (stock options which do
not constitute "incentive stock options" within the meaning of Section
422A of the Internal Revenue Code of 1986, as amended).
6. Written Agreement: Each option shall be evidenced by a
written agreement which shall contain such provisions as may be
approved by the Administrator. Such agreements shall constitute
binding contracts between the Corporation and the Participant and
every Participant, upon acceptance of such agreement, shall be bound
by the terms and restrictions of the Plan and of the agreement. The
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terms of each such agreement shall be in accordance with the Plan, but
the agreements may include such additional provisions and restrictions
determined by the Administrator, provided that such additional
provisions and restrictions are not inconsistent with the terms of the
Plan.
7. Option Price: The price per share for which the shares
covered by an option may be purchased shall be the fair market value
of a share (the "Fair Market Value") on the date the option is first
granted. Fair Market Value shall be deemed to be (a) if the shares of
the Common Shares are listed or admitted to trading on a national
securities exchange or the Nasdaq National Market, the per share of
Common Shares closing price regular way on the principal national
securities exchange or the Nasdaq National Market on which the shares
of Common Shares are listed or admitted to trading on the day prior to
the date of determination or, if no closing price can be determined
for the date of determination, the most recent date for which such
price can reasonably be ascertained, or (b) if the shares of Common
Shares are not listed or admitted to trading on a national securities
exchange or the Nasdaq National Market, the mean between the
representative bid and asked per share prices in the over-the-counter
market at the closing of the day prior to the date of determination or
the most recent such bid and asked prices then available, as reported
by NASDAQ or if the shares of Common Shares are not then quoted by
NASDAQ as furnished by any market maker selected from time to time by
the Corporation for that purpose.
8. Payment of Option Price: At the time of the exercise in
whole or in part of any option granted hereunder, payment of the
option price in full in cash or in Common Shares of the Corporation
shall be made by the Participant for all shares so purchased. No
Participant shall have any of the rights of a shareholder of the
Corporation under any option until the actual issuance of shares to
said Participant, and prior to such issuance, no adjustment shall be
made for dividends, distributions or other rights in respect of such
shares, except as provided in Paragraph 4.
9. Exercise and Term of Options: Subject to the provisions of
this Paragraph 9, (i) each stock option granted pursuant to either
Section 5 (b) or 5(c) shall vest and become exercisable on the date of
grant of the option; and (ii) each other stock option granted
hereunder shall be exercisable at any time or times or in any
installments as may be determined by the Administrator at the time of
the grant. If not sooner terminated as provided herein, each option
granted hereunder shall expire ten (10) years from the date of grant.
Notwithstanding the foregoing, all options that have not previously
been exercised, nor lapsed and ceased to be exercisable, shall vest
and become exercisable upon the occurrence of a Change in Control; but
under no circumstance shall any portion of an option that has not
vested and become exercisable at the time the Participant ceases to be
a director, for any reason, vest or become exercisable at any time
after the Participant ceases to be a director.
A "Change in Control" means (a) the acquisition by any person
(defined for the purposes of this Section to mean any person within
the meaning of Section 13(d) of the Securities Exchange Act of 1934
(the "Exchange Act")), other than the Corporation or an employee
benefit plan created by its Board for the benefit of its employees,
either directly or indirectly, of the beneficial ownership (determined
under Rule 13d-3 of the regulations promulgated by the Securities and
Exchange Commission ("SEC") under Section 13(d) of the Exchange Act)
of securities issued by the Corporation having 20% or more of the
voting power of all the voting securities issued by the Corporation in
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the election of directors at the next meeting of the holders of voting
securities to be held for such purpose, and such person acquired such
beneficial ownership without the prior consent of the Board; (b) the
election of a majority of the directors elected at any meeting of the
holders of voting securities of the Corporation who are persons who
were not nominated for such election by the Board or a duly
constituted committee of the Board; or (c) the merger or consolidation
with, or transfer of substantially all of the assets of the
Corporation to, another person and the Board does not adopt a
resolution, before the Corporation enters into any agreement for such
merger, consolidation or transfer, determining that it is not a Change
in Control.
A Participant may exercise an option, if then exercisable, in
whole or in part by delivery to the Corporation of written notice of
the exercise, in such form as the Administrator may prescribe,
accompanied by full payment for the shares with respect to which the
option is being exercised.
If an option is exercised as to less than all of the shares of
Common Shares purchasable thereunder, new duly executed option
agreements reflecting the decreased number of shares of Common Shares
exercisable under such option, but otherwise of the same tenor, shall
be returned to the Participant.
Successive options may be granted to the same Participant,
whether or not the option(s) previously granted to such Participant
remain unexercised. A Participant may exercise an option, if then
exercisable, notwithstanding that options previously granted to such
Participant remain unexercised.
10. Nontransferability: No stock option granted under this
Plan shall be transferred, assigned, pledged or hypothecated in any
way, whether by operation of law (including bankruptcy) or otherwise
except pursuant to a will or the laws of descent and distribution or
pursuant to a valid qualified domestic relations order. During the
lifetime of the Participant, a stock option may be exercised only by
that Participant.
11. Continuation of Service: The Administrator may require, in
its discretion, that any Participant under the Plan to whom an option
shall be granted shall agree in writing as a condition of the granting
of such option to continue serving on the Board for a designated
minimum period from the date of the granting of such option as shall
be fixed by the Administrator. Nothing contained in the Plan or in
any option granted pursuant to the Plan, nor any action taken by the
Administrator hereunder, however, shall confer upon any Participant
any right with respect to continuation of membership on the Board nor
interfere in any way with the right of the Corporation to terminate
such person's membership on the Board at any time.
12. Termination of Service: If the membership of a Participant
on the Board terminates by reason of death or disability, an option
granted to such Participant which has vested prior to the date of
termination may be exercised for a period of twelve months after the
date of termination. If the membership of a Participant on the Board
terminates for any reason other than death or disability, an option
granted to such Participant which has vested prior to the date of
termination may be exercised for a period of sixty days after the date
of termination. In no event, however, shall an option be exercisable
subsequent to its expiration date. An option may only be exercised
after termination of a Participant's membership on the Board
(irrespective of the reason for such termination) to the extent it was
exercisable on the date of termination, and an Option, or any portion
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thereof, that was not exercisable on the date of termination shall be
forfeited.
13. Investment Purpose: If the Administrator in its discretion
determines that as a matter of law such procedure is or may be
desirable, it may require a Participant, upon any acquisition of stock
hereunder, to execute and deliver to the Corporation a written
statement, in form satisfactory to the Administrator, representing and
warranting that the Participant's acquisition of shares of stock shall
be for such person's own account, for investment and not with a view
to the resale or distribution thereof and that any subsequent offer
for sale or sale of any such shares shall be made either pursuant to
(a) a Registration Statement on an appropriate form under the
Securities Act of 1933, as amended (the "Securities Act"), which
Registration Statement has become effective and is current with
respect to the shares being offered and sold, or (b) a specific
exemption from the registration requirements of the Securities Act,
but in claiming such exemption the Participant shall, prior to any
offer for sale or sale of such shares, obtain a favorable written
opinion from counsel for or approved by the Corporation as to the
availability of such exemption. The Corporation may endorse an
appropriate legend referring to the foregoing restriction upon the
certificate or certificates representing any shares issued or
transferred to the Participant.
14. Withholding Payments: If upon the exercise of an option
there shall be payable by the Corporation any amount for income tax
withholding, either the Corporation shall appropriately reduce the
amount of stock to be issued to the participant or the Participant
shall pay such amount to the Corporation to reimburse it for such
income tax withholding.
15. Effectiveness of Plan: The Plan shall be effective on the
date the Plan is approved by the affirmative vote of the holders of a
majority of the outstanding shares of Common Shares present, or
represented, and entitled to vote at a meeting of the shareholders of
the Corporation.
16. Termination, Duration and Amendments of Plan: Unless
sooner terminated, the Plan shall terminate on the date ten (10) years
after its approval by the shareholders pursuant to Section 15, and no
options may be granted thereafter. The termination of the Plan shall
not affect the validity of any option outstanding on the date of
termination.
The Board may at any time terminate the Plan, or make amendments
to the Plan as it may deem advisable; provided, however, that no
amendment shall be effective without the approval of the shareholders
of the Corporation by the affirmative vote of the holders of a
majority of the outstanding shares of Common Shares present, or
represented, and entitled to vote at a meeting of shareholders duly
held, if it would:
(a) authorize the grant of options that may be exercised more
then ten (10) years after the date of grant or have an exercise price
which is less than the Fair Market Value on the date of grant;
(b) materially increase the number of shares which may be issued
under the Plan; or
(c) materially modify the requirements for eligibility to
participate in the Plan;
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and, further, provided, however, that no amendment or termination of
the Plan shall be effective, to alter or impair the rights of a
Participant under any option granted before the adoption of such
amendment or termination by the Board, without the written consent of
the Participant.
As adopted by the Board on January 24, 2000.
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