OPTION AGREEMENT
----------------
Agreement (the "Agreement") dated as of December 1, 2000 (the
"Effective Date") between Cooker Restaurant Corporation, an Ohio
corporation (the "Company") and Dan Clay (the "Employee").
Preamble
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 one hundred fifty thousand (150,000) 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. This option is not granted pursuant to any stock option plan
previously adopted by the Company.
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) Change of Control means a change of control of a
nature that would be required to be reported in response to Item 6(e)
of Schedule 14A of Regulation 14A promulgated under the Securities
Exchange Act of 1934 as in effect on the date of this Agreement;
provided that, without limitation, such a change of control shall be
deemed to have occurred if and when (i) any "person" (as such term is
defined in Sections 13(d)(3) and 14(d)(2) of the Securities Exchange
Act of 1934) is or becomes a beneficial owner, directly or indirectly,
of securities of the Company representing 25% or more of the combined
voting power of the Company's then outstanding securities or (ii)
individuals who were members of the board of directors of the Company
immediately prior to a meeting of the shareholders of the Company
involving a contest for the election of directors do not constitute a
majority of the board of directors following such election.
(c) 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 by the Company, or to the Company by the Employee.
(d) Expiration Date. With respect to any Optioned
Shares, Expiration Date shall mean 5 p.m. Eastern Standard Time on November
30, 2010.
(e) Option shall have the meaning given to it in the
preamble.
694182 v1
021600-000 - 03/29/2001
Exhibit 10.31-Pg. 1
(f) Optioned Stock or Option Shares shall mean the one
hundred fifty thousand (150,000) shares of Common Stock of the Company
which the Employee shall have the right to purchase pursuant to the
terms of this Agreement.
(g) Purchase Price shall mean $1.125 for each share of
Common Stock purchased hereunder.
(h) SEC shall mean the Securities and Exchange Commission.
(i) 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.
(j) Unvested Shares shall mean any shares of Optioned
Stock which are not Vested Shares.
(k) Vested Shares shall mean the shares of Optioned Stock
with respect to which this option has vested according to the Vesting
Schedule.
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 at the Purchase Price, upon the
terms and conditions set forth in this Agreement.
3. Vesting Schedule. The right to exercise this option shall
vest, for so long as Employee remains employed by the Company, over a
thirty-six month period, the option vesting with respect to four
thousand one hundred sixty-seven (4,167) shares on the first day of
each month for thirty-five (35) months, beginning on January 1, 2001,
and ending with November 1, 2003, and with respect to the remaining
four thousand one hundred fifty-five on December 1, 2003, provided,
however, that the Option shall vest as to all of the Optioned Stock
upon the occurrence of a Change of Control of the Company. Upon
Termination of Employment of Employee by the Company, no further
shares shall vest, and this Option shall cease and terminate as to any
Unvested Shares remaining at that time.
4. 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 as to the then Vested Shares 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 Option by giving written notice of such
exercise at the general corporate offices of the Company (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 immediately available good funds 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 designated by the
person exercising the Option, shall be delivered to the person
exercising the Option within a reasonable time, not exceeding ten days
694182 v1
021600-000 - 03/29/2001
Exhibit 10.31-Pg. 2
after exercise of the Option. 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 exercised,
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) Provided the Common Stock is then-traded on one of the
national exchanges or on the National Market System or other quotation
system of the National Association of Securities Dealers, Inc., and
the Optioned Shares are registered under the Securities Act of 1933 on
Form S-8, in lieu of exercising the Option in the manner set forth in
sub-paragraph 3(a) above, this Option may be exercised as described in
this subparagraph without payment of any other consideration by means
of a "brokered exercise" under section 220(e)(4) of Regulation T of
the Board of Governors of the Federal Reserve System issued pursuant
to Section 7 of the Exchange Act of 1934. To effect the "brokered
exercise," the Employee shall deliver to a broker an irrevocable
notice on Exhibit A constituting an exercise of the Option and
directing delivery of the Optioned Stock to the broker. The broker
then lends the Option exercise price to the Employee by delivering the
executed copy of Exhibit A to the Company with payment of that price
to the Company, while selling some of the Optioned Shares in the
market and ultimately retaining so much of the proceeds of that sale
as are needed to repay the broker's loan of the exercise price and the
broker's commission(s). The Company agrees to receive payment from and
to deliver stock upon exercise to the broker rather than the Employee
upon proper indication by the Employee on Exhibit A of the election of
this method of payment. The Company further agrees to pay to the
Employee the amount of interest and commission charged by the broker
to the Employee to effect this "brokered exercise," upon proper
presentment by the Employee to the Company of evidence of the amount
deducted by the broker from the proceeds for such purpose.
5. 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.
(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 shaH be decreased in proportion to
such decrease in outstanding shares.
694182 v1
021600-000 - 03/29/2001
Exhibit 10.31-Pg. 3
6. Representations. Warranties and Agreements of the Emplovee
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.
7. 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.
8. 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:
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."
9. 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 couner or first class or certified
mail addressed as follows:
If to the Employee: At the address specified at the foot
of this Agreement
694182 v1
021600-000 - 03/29/2001
Exhibit 10.31-Pg. 4
If to the Company: Cooker Restaurant Corporation
5500 Village Boulevard
West Palm Beach, FL 33407
Attn: Vice President and Chief
Financial Officer
or to such other address as the party to whom notice is to be given
may have flirished 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
c6urier; 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.
10. 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.
11. 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.
12. 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.
13. 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.
694182 v1
021600-000 - 03/29/2001
Exhibit 10.31-Pg. 5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed and delivered.
COOKER RESTAURANT CORPORATION
By:/s/Henry R. Hillenmeyer
------------------------------------
Henry R. Hillenmeyer
Chairman and Chief Executive Officer
ACCEPTED AND AGREED TO:
/s/Dan Clay
- ---------------------------
Signature: Dan Clay
Social Security Number: ###-##-####
[Required] -----------
ADDRESS OF EMPLOYEE:
215 Cantrell Ave
Nashville, TN 37205
694182 v1
021600-000 - 03/29/2001
Exhibit 10.31-Pg. 6
EXHIBIT A
---------
NOTICE OF EXERCISE OF OPTION
Dated: ______________________
Cooker Restaurant Corporation
5500 Village Boulevard
West Palm Beach, Florida 33407
1. I, _______________________________, hereby elect to exercise the
Option granted to me under the Stock Option Agreement dated as of, to
purchase __________ shares of Common Stock of Cooker Restaurant
Corporation ("Cooker") at an exercise price of $_______________ per
share.
2. Method of Payment:
(Please circle one of the fbllowing. You must select one.)
(a) Enclosed is my check in the amount of $_______________.
(b) Enclosed is Cooker's Common Stock Certificate No(s)
_________ representing _________ shares of Cooker Common
Stock (see Note).
(c) Enclosed is my check in the amount of $___________ plus
Cooker's Common Stock Certificate No(s) ________
representing __________ shares of Cooker Common Stock (see
Note).
(d) I wish to exercise my option by means of a "brokered
exercise" as provided in Section 3(b) of the Option
Agreement and request that Cooker receive payment from and
deliver shares to the broker indicated in item 4, below.
3. My Social Security Number is (required):_________________________.
4. Delivery of Shares: After issuance, please deliver my share
certificate to (give name, address and telephone number):
Name:______________________________ Telephone:_______________________
Address:___________________________
Signature:_________________________
Print Name:________________________
Note: Shares of Stock being delivered in payment of aU or any part of
the exercise price, pursuant to paragraphs 2(1,) or 2(c) above, must
be represented by certificates negistered in the name of employee and
duly endorsed by the employee and by each and every other coowner in
whose narne the shares may also be registered.
Date received by Cooker:___________ Approved by:____________________________
Authorized Signatory of Cooker
694182 v1
021600-000 - 03/29/2001
Exhibit 10.30-Pg.