1
EXHIBIT 10.1
ROADHOUSE GRILL, INC.
1998 OMNIBUS STOCK OPTION PLAN
1. PURPOSE
The purpose of this Stock Option Plan (the "Plan") is to promote the interest of
Roadhouse Grill, Inc. (the "Company"), by providing directors, officers, key
employees and other consultants of the Company with an opportunity to acquire a
proprietary interest in the Company, and thereby develop a stronger incentive to
contribute to the Company's continued success and growth. In addition, the
ability to provide an opportunity to acquire a proprietary interest in the
Company by the offering and availability of stock options will assist the
Company in attracting and retaining the services of key personnel of outstanding
ability.
2. DEFINITIONS
Whenever used in the Plan, the following terms shall have the meaning set forth
below:
2.1 "Board" means the Board of Directors of the Company.
2.2 "Code" means the Internal Revenue Code, as amended, and the rules and
regulations promulgated thereunder.
2.3 "Committee" means the Committee which may be designated from time to
time by the Board to administer the Plan. If so designated, the
Committee may be composed of (i) not less than two persons (who need
not be members of the Board) who are appointed from time to time to
serve on the Committee by the Board, or (ii) not less than three
persons (who need not be members of the Board) who are appointed from
time to time to serve on the Committee by the Board and who qualify as
"disinterested persons" within the meaning of Rule 16b-3 of the
Securities and Exchange Act of 1934, as the same now exists or may
hereafter be amended from time to time. In the absence of a designated
committee, the Board shall be deemed to be the Committee for the
purposes of this Plan.
2.4 "Fair Market Value" shall mean, as of a specified date, (1) the fair
market value of the Stock as determined in good faith by the Board,
taking into account restrictions on such Stock, if any, or (2) if the
Stock is publicly traded, the average of the highest and lowest bid and
ask prices of the Stock as reported by such responsible reporting
agency as the Board may select, or if the Stock is reported on the
basis of a closing sales price, the average of the highest and lowest
sales price of the Stock as reported by such agency.
2.5 "Incentive Stock Option" or "ISO" means a stock option which is
intended to qualify as an incentive stock option as defined in Section
422A of the Code.
1
2
2.6 "Non-Statutory Stock Option" or "NSO" means a stock option to purchase
stock that does not qualify as an incentive stock option as defined in
Section 422A of the Code and any other tax-qualified discriminatory
stock options which are currently or may be incorporated within the
Code as it may from time to time be amended.
2.7 "Option" means, where required by the context of the Plan, an ISO
and/or NSO granted pursuant to the Plan.
2.8 "Optionee" means a Participant in the Plan who has been granted one or
more Options under the Plan.
2.9 "Participant" means an individual described in Section 5 of this Plan
who may be granted Options under the Plan.
2.10 "Stock" means the Common Stock of the Company.
2.11 "Subsidiary" means any corporation, other than the Company, in an
unbroken chain of Corporations beginning with the Company if each of
the corporations other than the last corporation in an unbroken chain
owns 50% or more of the voting stock in one of the other corporations
in such chain.
3. ADMINISTRATION
3.1 The Plan shall be administered by the Board, which shall have full
power, subject to the provisions of the Plan, to grant Options,
construe and interpret the Plan, establish rules and regulations with
respect to the Plan and/or Options granted hereunder and perform all
other acts, including the delegation of administrative
responsibilities, that it believes reasonable and necessary.
3.2 The Board shall have the sole discretion, subject to the provisions of
the Plan, to determine the Participants eligible to receive Options
pursuant to the Plan and the amount, type, and terms of any Options and
the terms and conditions of option agreements relating to any Option.
3.3 The Board may correct any defect, supply any omission, or reconcile any
inconsistency in the Plan or in any Option granted hereunder in the
manner and to the extent it shall deem necessary to carry out the terms
of the Plan.
3.4 Any decision made, or action taken, by the Board arising out of or in
connection with the interpretation and administration of the Plan shall
be final, conclusive and binding upon Optionees.
3.5 If the Board has appointed a Committee pursuant to Section 2.3 of the
Plan, then the Committee shall administer the Plan and exercise the
powers enumerated in Sections 3.1 through 3.4 with respect to such
administration and other powers granted to the Board in this Plan,
including, without limitation the right to grant Options pursuant to
the Plan and to establish the Option price as provided in the Plan.
2
3
4. SHARES SUBJECT TO THE PLAN
The total number of shares of Stock reserved for issuance upon exercise of
Options under the Plan is two hundred and thirty-six thousand (236,000) subject
to any adjustments as may occur in accordance with Section 14 hereof. Such
shares may consist, in whole or in part, of authorized but unissued Stock or
treasury Stock, as determined by the Board. If any Option granted under the Plan
lapses or terminates for any reason before being completely exercised, the
shares covered by the unexercised portion of such Option may again be made
subject to Options under the Plan.
5. ELIGIBLE PARTICIPANTS
The following persons are eligible to participate in the Plan and to be granted
Options hereunder:
5.1 INCENTIVE STOCK OPTIONS: Incentive Stock Options may be granted only to
any key employee of the Company, including any officer or director of
the Company, who is in the regular, full-time employ of the Company.
5.2 NON-STATUTORY STOCK OPTIONS: Non-Statutory Stock Options may be granted
to (i) any key employee of the Company, including any officer or
director of the Company, who is in the regular, full-time employ of the
Company; (ii) any non-employee director of the Company; or (iii) any
consultant to, or other independent contractor of, the Company.
6. GRANT OF OPTIONS
6.1 Subject to the terms, conditions, and limitations set forth in this
Plan, the Company, by action of its Board, may from time to time grant
Options to purchase shares of the Company's Stock to those eligible
Participants as may be selected by the Board, in such amounts and on
such other terms as the Board in its sole discretion shall determine.
Such Options may be (i) "Incentive Stock Options" so designated by the
Board and which when granted, are intended to qualify as incentive
stock options as defined in Section 422A of the Code; (ii)
"Non-Statutory Stock Options" so designated by the Board and which when
granted do not qualify as incentive stock options under Section 422A of
the Code; or (iii) a combination of both. The date on which the Board
approves the granting of an Option shall be the date on which such
Option is granted. Notwithstanding the foregoing, with respect to the
grant of any Incentive Stock Option under the Plan, the aggregate Fair
Market Value of Stock (determined as of the date the Option is granted)
with respect to which such Options are exercisable for the first time
by an Optionee in any calendar year (under all such stock option plans
of the Company or subsidiaries) shall not exceed $100,000. Each grant
of an Option under the Plan shall be evidenced by a written stock
option agreement between the Company and the Optionee setting forth the
terms and conditions not inconsistent with the Plan
3
4
under which the Option so granted may be exercised pursuant to the Plan
and containing such other terms with respect to the Option as the Board
in its sole discretion may determine.
6.2 In its grant of any Options under the Plan, the Company may establish,
as a condition of such Options, the requirement that the Optionee
execute, upon exercise, a Stock Restriction Agreement in a form
established from time to time by the Board, which may provide, among
other things, that the Company shall have a right of first refusal to
purchase the shares issuable upon exercise of the Option in the event
of any attempted sale, and shares purchased pursuant to the exercise of
such Option shall be subject to such Stock Restriction Agreement.
7. OPTION PRICE; FORM OF PAYMENT
The purchase price for a share of Stock subject to an Option granted hereunder
shall not be less than 100% of the Fair Market Value of the Stock, as defined in
Section 2.4 herein. Notwithstanding the foregoing and to the extent permitted by
the Plan, in the case of an Incentive Stock Option granted to any Optionee then
owning more than 10% of the voting power of all classes of the Company's stock,
the purchase price per share of the Stock subject to such Stock shall be not
less than 110% of the Fair Market Value of the Stock on the date of grant of the
Incentive Stock Option, determined as provided in Section 2.4.
The purchase price of each share of Stock purchased upon the exercise of any
Option shall be paid in United States dollars in cash or by check, bank draft or
money order payable to the order of the Company, or by delivery to the Company
of an equivalent number of shares of Stock having a Fair Market Value on the
date the Option is exercised equal to the exercise price of such Option, or by a
combination of cash or check and such shares of Stock.
8. EXERCISE OF OPTIONS
8.1 MANNER OF EXERCISE: An Option, or any portion thereof, shall be
exercised by the Optionee delivering a written notice of exercise to
the Board and paying to the Company the full purchase price of the
shares acquired upon the exercise of the Option. Until certificates for
the shares acquired upon the exercise of an Option are issued to an
Optionee, such Optionee shall not have any rights of a shareholder.
8.2 LIMITATIONS AND CONDITIONS ON EXERCISE OF OPTIONS: In addition to any
other limitations or conditions contained in this Plan or that may be
imposed by the Board from time to time consistent with the Plan in the
stock option agreements to be entered into with respect to Options
granted hereunder, the following limitations and conditions shall apply
to the exercise of Options granted under this Plan:
8.2.1. No Incentive Stock Option, by its terms shall
be exercisable hereunder after the expiration of 10
years from the date of the grant thereof.
4
5
8.2.2. With respect to any Incentive Stock Option
granted under the Plan, no Incentive Stock Options
granted pursuant to the Plan to an eligible
Participant then owning more than 10% of the voting
power of all classes of the Company's stock (to the
extent any Option may be granted under the Plan) may
be exercised by its terms after the expiration of 5
years from the date of the grant thereof.
9. INVESTMENT PURPOSE
Unless a registration statement under the Securities Act of 1933 is in effect
with respect to Stock to be purchased or options to be granted under the Plan,
the Company shall require that an Optionee agree with and represent to the
Company in writing that he or she is acquiring such shares of Stock for the
purpose of investment and with no present intention to transfer, sell or
otherwise dispose of such shares of Stock other than by transfers which may
occur by will or by the laws of descent and distribution. No shares of Stock may
be transferred unless, in the opinion of counsel to the Company, such transfer
shall at such time be in compliance with applicable securities laws. In
addition, unless a registration statement under the Securities Act of 1933 is in
effect with respect to the Stock to be purchased under the Plan, each
certificate representing any shares of Stock issued to an Optionee hereunder
shall have endorsed thereon legends in substantially the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 AS AMENDED (THE "ACT") OR ANY STATE SECURITIES ACT AND
MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY THAT ANY SUCH TRANSFER IS NOT IN VIOLATION OF ANY SUCH LAWS. ANY
SALES OF THE SHARES UNDER RULE 144 OF THE ACT SHALL REQUIRE PROVISION TO THE
COMPANY OF SUCH INFORMATION AS IT MAY REQUEST FOR COMPLIANCE WITH THAT RULE, AND
APPLICABLE STATE SECURITIES LAWS."
10. TRANSFERABILITY OF OPTIONS
No Option granted under the Plan shall be transferable by an Optionee (whether
by sale, assignment, hypothecation or otherwise) other than by will or the laws
of descent and distribution. Options granted under the Plan shall be exercisable
during the Optionee's lifetime only by Optionee.
11. TERMINATION OF EMPLOYMENT
11.1 GENERALLY: Except as otherwise provided in this Section 11, if an
Optionee is an employee of the Company and if his or her employment
with the Company should be terminated (hereinafter "Termination of
Employment"), other than by death or Disability (as hereinafter
defined) the Optionee may, but only within thirty (30)
5
6
days after the date of the Optionee's Termination of Employment,
exercise an Option granted under the Plan, but only to the extent the
Optionee was entitled to exercise the Option at the date of Termination
of Employment and only if the term of the Option has not expired. The
exercise of an Option under this Section shall be deemed to have
occurred one (1) day prior to the date of Termination of Employment.
11.2 DEATH OR DISABILITY OF OPTIONEE: In the event of the death or
Disability of an Optionee prior to expiration of an Option held by him
or her, the following provision shall apply:
11.2.1 If the Optionee is at the time of his or her
death or Disability employed by the Company and has
been in continuous employment (as determined by the
Board in its sole discretion) since the date of the
grant of the Option, then the Option may be
exercised: (i) in the case of Disability, by the
Optionee within one (1) year following the date of
such Disability, but only to the extent the Optionee
was entitled to exercise such Option at the time of
his or her Disability; or (ii) in the case of death,
by the Optionee's estate, or by a person who acquired
the right to exercise the Option by will or the laws
of descent or distribution within one (1) year from
the date of the Optionee's death, but only to the
extent to which Optionee was entitled to exercise the
Option at the time of death. For the purpose of this
Section, the term "Disability" shall have the meaning
given to it in Section 22(e)(3) of the Code. The
Disability of an Optionee within the meaning of
Section 22 (e)(3) shall be determined by the Board,
in its sole discretion.
11.2.2 If the Optionee dies within thirty (30) days
after the Termination of Employment, the Option may
be exercised at any time within one (1) year
following the date of death, by the Optionee's estate
or by a person who acquired the right to exercise the
Option by will or the laws of descent or distribution
but only to the extent the Optionee was entitled to
exercise the Option at the time of Termination of
Employment.
11.3 CANCELLATION OF OPTIONS: If the employment of an Optionee is terminated
by the Company for cause, or if an Optionee enters into competition
with or becomes employed by a competitor of the Company, or if the
Optionee otherwise conducts himself or herself in a manner which the
Board determines detrimental to the Company, then the Board shall have
the right to cancel any Options granted to the Optionee under the Plan.
12. SPECIAL RULES FOR NON-EMPLOYEE OPTIONS
12.1 CONDITIONS AND LIMITATIONS ON EXERCISE: If an Optionee who is a
non-employee director, consultant or independent contractor of the
Company ceases to be such a
6
7
director, consultant or independent contractor of the Company for any
reason (hereinafter the "Termination Date"), then the Optionee may, but
only within thirty (30) days after the Termination Date, exercise a NSO
granted hereunder but only to the extent the Optionee was entitled to
exercise the NSO on the Termination Date and only if the term of the
NSO has not expired. In the event an Optionee who is a non-employee
dies during his or her term as director, consultant or independent
contractor then any NSO held by such Optionee may be exercised within
one (1) year from the date of such Optionee's death, by the Optionee's
estate, or by the person who acquired the right to exercise the Option
by will or the laws of descent or distribution, but only to the extent
the Optionee was entitled to exercise the Option at the time of death.
12.2 CANCELLATION OF OPTION: In the event an Optionee who is a non-employee
director, consultant or independent contractor of the Company is
removed as such for cause or default, or if an Optionee enters into
competition with or becomes employed by a competitor of the Company,
the Option of such person shall be deemed canceled.
12.3 APPLICABILITY OF OTHER PROVISIONS OF PLAN: Except as specifically set
forth above, all other provisions of this Plan generally applicable to
NSO's shall apply to any NSO granted to an Optionee who is a
non-employee director, consultant or independent contractor of the
Company.
13. AMENDMENT AND TERMINATION OF THE PLAN
13.1 The Board, without approval by the shareholders of the Company, may at
any time, and from time to time, suspend or terminate the Plan in whole
or in part or amend it from time to time in such respects as may be in
the best interests of the Company, provided, however, that no such
amendment shall be made without approval of the shareholders which
would: (a) materially modify the eligibility requirements for Options;
(b) increase the total number of shares of Stock which may be issued
pursuant to Options, except in accordance with Section 14 of the Plan;
(c) reduce the minimum option price per share, except for adjustments
made pursuant to Section 14 of the Plan; (d) extend the period of
granting stock options; or (e) materially increase in any other way the
benefits accruing to Optionees.
13.2 No amendment, suspension or termination of this Plan shall, without the
Optionee's consent, alter or impair any of the rights or obligations
under any Option theretofore granted to him or her under the Plan.
13.3 The Board may amend the Plan, subject to the limitations cited above,
in such manner as it deems necessary to permit the granting of Options
meeting the requirements of future amendments or regulations of the
Code.
14. CHANGES IN CAPITAL STRUCTURE
14.1 In the event a stock dividend is declared upon the Stock or a stock
split-up is
7
8
authorized, the shares of Stock then subject to each Option (and the
number of shares reserved for issuance pursuant thereto) shall be
increased proportionately and the purchase price per share
proportionately decreased. In the event the Company declares or
authorizes a reverse stock split or combination of shares, the shares
of Stock subject to each option shall be proportionately reduced and
the purchase price per share shall be proportionately increased.
Subject to the provisions of Section 14.2, if the Stock shall be
changed into or exchanged for a different number or class of shares of
Stock, or other securities of the Company or of another corporation,
whether through reorganization, recapitalization, merger or
consolidation, there shall be substituted for each such share of Stock
then subject to each Option (and for each share of Stock then reserved
for issuance pursuant thereto) the number and class of shares of Stock
or other securities into which each outstanding share of Stock shall be
so exchanged, all without any change in the aggregate purchase price
for the shares then subject to each Option.
14.2 If the Company is dissolved or liquidated, or if the Company is not the
surviving or resulting corporation, in connection with a merger or
consolidation, then, in such event, in the sole discretion of the
Committee, each Optionee may be granted the right to exercise an Option
prior to the occurrence of the event otherwise terminating the Options,
over such period and upon such terms as the Committee, in its sole and
absolute discretion, shall determine.
15. MISCELLANEOUS PROVISIONS
15.1 RIGHT TO CONTINUED EMPLOYMENT: No person shall have any claim or right
to be granted an Option under the Plan, and the grant of an Option
under the Plan shall not be construed as giving an Optionee the right
to continued employment with the Company. The Company further expressly
reserves the right at any time to dismiss an Optionee with or without
cause, free from any liability, or any claim under the Plan, except as
provided herein or in a stock option agreement.
15.2 GOVERNING LAW: The Plan shall be administered in the State of Florida,
and the validity, construction, interpretation, administration and all
rights relating to the Plan shall be determined solely in accordance
with the laws of such state.
16. SHAREHOLDER APPROVAL AND EFFECTIVE DATES
The effective date of the Plan shall be July 1, 1998. Notwithstanding the
foregoing, this Plan and any Option granted hereunder are contingent upon the
approval of this Plan by the shareholders of the Company. No Option may be
granted subsequent to June 30, 2008, provided, however, that the Plan and all
outstanding Options shall remain in effect until such Options have expired or
until such Options are canceled.
8