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EXHIBIT 4.7
COOKER RESTAURANT CORPORATION
2001 RESTRICTED STOCK PLAN
1 Purpose
The purpose of the Cooker Restaurant Corporation 2001
Restricted Stock Plan (the "Plan") is to strengthen Cooker Restaurant
Corporation, an Ohio corporation (the "Company") (a) by providing an incentive
to certain of its employees and directors and thereby encouraging them to devote
their abilities and industry to the success of the Company's business
enterprise, and (b) by encouraging the attraction and retention of key employees
and directors with exceptional qualifications. It is intended that this purpose
be achieved by extending to certain of its employees and directors an added
long-term incentive for high levels of performance and unusual efforts through
the grant of Restricted Stock.
2 Definitions
2.1 "Agreement" means the written agreement between the
Company and a Grantee evidencing the grant of an Award and setting forth the
terms and conditions thereof.
2.2 "Award" means a grant of Restricted Stock.
2.3 "Board" means the board of directors of the Company.
2.4 "Cause" means, unless otherwise defined in the
Agreement evidencing a particular Award, a felony conviction of an Eligible
Individual or the failure of an Eligible Individual to contest prosecution for a
felony, or an Eligible Individual's willful misconduct or dishonesty, any of
which is determined by the Committee to be directly and materially harmful to
the business or reputation of the Company or its Subsidiaries.
2.5 "Change in Capitalization" means any increase or
reduction in the number of Shares, or any change in the Shares or exchange of
Shares for a different number or kind of shares or other securities of the
Company or another corporation, by reason of a reclassification,
recapitalization, merger, consolidation, reorganization, spin-off, split-off,
issuance of warrants or rights or debentures, stock dividend, stock split or
reverse stock split, cash dividend, property dividend, combination or exchange
of shares, repurchase of shares, change in corporate structure or otherwise.
2.6 A "Change in Control" shall mean the occurrence of:
(a) An acquisition (other than directly from the Company)
of any voting securities of the Company (the "Voting Securities") by an "person"
(as that term is used for purposes of Section 13 (d) or 14 (d) of the Exchange
Act), immediately after which such Person has "Beneficial Ownership" (within the
meaning of Rule 13d-3 promulgated under the
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Exchange Act) of fifteen percent (15%) or more of the combined voting power of
the Company's then outstanding Voting Securities; provided, however, in
determining whether a Change in Control has occurred, Voting Securities which
are acquired in a "Non-Control Acquisition" (as hereinafter defined) shall not
constitute an acquisition which would cause a Change in Control. A "Non-Control
Acquisition" shall mean an acquisition by (i) an employee benefit plan (or a
trust forming a part thereof) maintained by (A) the Company or (B) any
corporation or other Person of which a majority of its voting power or its
equity securities or equity interest is owned, directly or indirectly, by the
Company (for the purposes of this definition, a "Subsidiary"), (ii) the Company
or its Subsidiaries, or (iii) any Person in connection with a "Non-Control
Transaction" (as hereinafter defined);
(b) The individuals who, as of the effective date of this
Plan, are members of the Board (the "Incumbent Board") cease for any reason to
constitute at least two-thirds of the members of the Board; provided, however,
that if the election, or nomination for election by the Company's common
stockholders, of any new director was approved by a vote of at least two-thirds
of the Incumbent Board, such new director shall, for purposes of this Plan, be
considered as a member of the Incumbent Board, provided, further, however, that
no individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened "Election Contest" (as described in Rule 14a-11 promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies or consents
by or on behalf of a Person other than the Board (a "Proxy Contest") including
by reason of any agreement intended to avoid or settle any Election Contest or
Proxy Contest; or
(c) The consummation of :
(i) a merger, consolidation or reorganization
involving the Company, unless such merger, consolidation or reorganization is a
"Non-Control Transaction." A "Non-Control Transaction" shall mean a merger,
consolidation or reorganization of the Company where:
(A) the stockholders of the Company,
immediately before such merger, consolidation or reorganization, own directly or
indirectly immediately following such merger, consolidation or reorganization,
at least seventy-five percent (75%) of the combined voting power of the
outstanding Voting Securities of the corporation resulting from such merger or
consolidation or reorganization (the "Surviving Corporation") in substantially
the same proportion as their ownership of the Voting Securities immediately
before such merger, consolidation or reorganization,
(B) the individuals who were members of
the Incumbent Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization constitute at least
two-thirds of the members of the board of directors of the Surviving
Corporation, or a corporation beneficially directly or indirectly owning a
majority of the Voting Securities of the Surviving Corporation, and no
agreement, plan or arrangement is in place to change the composition of the
board of directors following the merger, consolidation or reorganization; and
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(C) no Person other than (i) the
Company, (ii) any Subsidiary, (iii) any employee benefit plan (or any trust
forming a part thereof) maintained by the Company, the Surviving Corporation, or
any Subsidiary, or (iv) any Person who, immediately prior to such merger,
consolidation or reorganization, had Beneficial Ownership of fifteen percent
(15%) or more of the then outstanding Voting Securities, has Beneficial
Ownership of fifteen percent (15%) or more of the combined voting power of the
Surviving Corporation's then outstanding voting securities.
(ii) A complete liquidation or dissolution of the
Company; or
(iii) The sale or other disposition of all or
substantially all of the assets of the Company to any Person (other than a
transfer to a Subsidiary).
Notwithstanding the forgoing, a Change in Control shall not be
deemed to occur solely because any Person (the "Subject Person") acquired
Beneficial Ownership of more than the permitted amount of the then outstanding
Voting Securities as a result of the acquisition of Voting Securities by the
Company which, by reducing the number of Voting Securities then outstanding,
increases the proportional number of shares Beneficially Owned by the Subject
Persons, provided that if a Change in Control would occur (but for the operation
of this sentence) as a result of the acquisition of Voting Securities by the
Company, and after such share acquisition by the Company, the Subject Person
becomes the Beneficial Owner of any additional Voting Securities which increase
the percentage of the then outstanding Voting Securities Beneficially Owned by
the Subject Person, then a Change a Control shall occur.
2.7 "Code" means the Internal Revenue Code for 1986, as
amended from time to time, or any successor thereto, together with any
regulations promulgated thereunder.
2.8 "Committee" means the compensation committee of the
Board.
2.9 "Company" means Cooker Restaurant Corporation, an
Ohio corporation.
2.10 "Disability" means total disability as determined by
the Committee in accordance with standards and procedures similar to those under
the Company's long-term disability plan.
2.11 "Eligible Individual" shall have the meaning set
forth in Section 5 hereof.
2.12 "Exchange Act" means the Securities Exchange Act of
1934, as amended, from time to time.
2.13 "Fair Market Value" on any date means the value
established by the Committee in good faith.
2.14 "Grantee" means a person to whom an Award has been
granted under the Plan.
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2.15 "Plan" means the Cooker Restaurant Corporation 2001
Restricted Stock Plan.
2.16 "Pooling Transaction" means an acquisition of the
Company in a transaction which is intended to be treated as a "pooling of
interests" under generally accepted accounting principles.
2.17 "Restricted Stock" means Shares issued or transferred
to an Eligible Individual pursuant to Section 6 hereof.
2.18 "Shares" means the common stock, without par value,
of the Company.
2.19 "Subsidiary" means any corporation which is a
subsidiary corporation (within the meaning of Section 424 (f) of the Code) with
respect to the Company.
3 Administration
3.1 The Plan shall be administered by the Committee,
which shall hold meetings at such times as may be necessary for the proper
administration of the Plan. The Committee shall keep minutes of its meetings.
The Committee shall consist of at least two (2) directors of the Company
("Directors") and may consist of the entire Board; provided, however, that if
the Committee consists of less than the entire Board, then the Committee shall
consist of at least two (2) Directors each of whom shall be a nonemployee
director, within the meaning of Rule 16b-3 promulgated under the Exchange Act
("Nonemployee Director"). For purposes of the preceding sentence, if one or more
members of the Committee is not a Nonemployee Director but recuses himself or
herself or abstains from voting with respect to a particular action taken by the
Committee, then the Committee, with respect to that action, shall be deemed to
consist only of the members of the Committee who have not recused themselves or
abstained from voting. A quorum shall consist of not fewer than two (2) members
of the Committee and a majority of a quorum may authorize any action. Any
decision or determination reduced to writing and signed by all of the members of
the Committee shall be as fully effective as if made by vote at a meeting duly
called and held. Subject to applicable law, the Committee may delegate its
authority under the Plan to any other person or persons.
3.2 No member of the Committee shall be liable for any
action, failure to act, determination or interpretation made in good faith with
respect to this Plan or any transaction hereunder. The Company hereby agrees to
indemnify each member of the Committee for all costs and expenses and, to the
extent permitted by applicable law, any liability incurred in connection with
defending against, responding to, negotiation for the settlement of or otherwise
dealing with any claim, cause of action or dispute of any kind arising in
connection with any actions in administering this Plan or in authorizing or
denying authorization to any transaction hereunder. The indemnification
provisions herein are intended to be in addition to, and not in lieu of, any
other rights of indemnification that may be available to the members of the
Committee.
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3.3 Subject to the express terms and conditions set forth
herein, The Committee shall have the power from time to time to;
3.3.1 select those Eligible Individuals to whom
Awards shall be granted under the Plan and to determine the number of Shares in
respect of which each Award is granted, the terms and conditions (which need not
be identical) of each such Award, and make any amendment or modification to any
Award Agreement consistent with the terms of the Plan;
3.3.2 construe and interpret the Plan and Awards
granted hereunder and to establish, amend and revoke rules and regulations for
the administration of the Plan, including, but not limited to, correcting any
defect or supplying any omission, or reconciling any inconsistency in the Plan
or in any Agreement, in the manner and to the extent it shall deem necessary or
advisable, including so that the Plan and the operation of the Plan complies
with Rule 16b-3 under the Exchange Act, the Code to the extent applicable and
other applicable law, and otherwise to make the Plan fully effective. The
Committee shall have full authority, in its discretion, to determine when Awards
will become vested, including the ability to accelerate the vesting date of
Awards previously granted under the Plan. All decisions and determinations by
the Committee in the exercise of this power shall be final, binding and
conclusive upon the Company, its subsidiaries, the Grantees and all other
persons having any interest therein;
3.3.3 determine the duration and purposes for
leaves of absence which may be granted to a Grantee on an individual basis
without constituting a termination of employment or service for purposes of the
Plan;
3.3.4 exercise its discretion with respect to the
powers and rights granted to it as set forth in the Plan; and
3.3.5 exercise such powers and to perform such
acts as are deemed necessary or advisable to promote the best interests of the
Company with respect to the Plan.
4 Stock Subject to the Plan; Grant Limitations
4.1 The maximum number of Shares that may be made the
subject of Awards granted under the Plan is six hundred fifty-nine thousand, six
hundred ninety-nine (659,699). The Company shall reserve for the purposes of
this Plan, out of its authorized and unissued Shares or out of Shares held in
the Company's treasury, if any, or partly out of each, such number of Shares.
4.2 Upon the granting of an Award, the number of Shares
available under Section 4.1 for the granting of further Awards shall be reduced
by the number of Shares in respect of which the Award is granted or denominated.
Whenever any outstanding Award or portion thereof expires, is
canceled, is settled in cash (including the settlement of tax withholding
obligations using Shares) or is otherwise terminated for any reason without
having been exercised or payment having been made in respect of the entire
Award, the Shares allocable to the expired, canceled, settled or
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otherwise terminated portion of the Award may again be the subject of Awards
granted hereunder.
5 Eligible Individuals
Any of the following shall be considered eligible to
participate in the Plan ("Eligible Individual"): (a) any employee of the Company
or a Subsidiary, (b) any individual to whom the Company or a Subsidiary has
extended a formal written offer of employment, and (c) any Director of the
Company.
6 Restricted Stock
6.1 Grant. The Committee may grant Awards to Eligible
Individuals of Restricted Stock, which shall be evidenced by an Agreement
between the Company and the Grantee. Each Agreement shall contain such
restrictions, terms and conditions as the Committee may, in its sole discretion,
determine and (without limiting the generality of the foregoing) such Agreements
may require that an appropriate legend be placed on Share certificates. Awards
of Restricted Stock shall be subject to the terms and provisions set forth below
in this Section 6.
6.2 Purchase Price. The purchase price, if any, for
Shares of Restricted Stock shall be determined by the Committee, but shall not
be less than the par value, if any, per Share.
6.3 Rights of Grantee. Shares of Restricted Stock granted
pursuant to an Award hereunder shall be issued in the name of the Grantee as
soon as reasonably practicable after the Award is granted provided that the
Grantee has executed an Agreement evidencing the Award and the appropriate blank
stock powers and any other documents which the Committee may require as a
condition to the issuance of such Shares. If a Grantee shall fail to execute the
Agreement evidencing a Restricted Stock Award, the appropriate stock powers or
any other documents which the Committee may require within the time period
prescribed by the Committee at the time the Award is granted, the Award shall be
null and void. At the discretion of the Committee, Shares issued in connection
with a Restricted Stock Award shall be deposited together with the stock powers
with an escrow agent (which may be the Company or a designated officer of the
Company) designated by the Committee. Unless the Committee determines otherwise
and as set forth in the Agreement, upon delivery of the Shares to the escrow
agent, the Grantee shall have all the rights of a stockholder with respect to
such Shares, including the right to vote the Shares and to receive all dividends
or other distributions paid or made with respect to the Shares.
6.4 Non-Transferability. Until all restrictions upon the
Shares of Restricted Stock awarded to a Grantee shall have lapsed in the manner
set forth in Section 6.5 or as set forth in the Award, such Shares shall not be
sold, transferred or otherwise disposed of and shall not be pledged or otherwise
hypothecated, nor shall they be delivered to the Grantee.
6.5 Lapse of Restrictions
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6.5.1 Generally. Restrictions upon Shares of
Restricted Stock awarded hereunder shall lapse at such time or times and on such
terms and conditions as the Committee may determine, which, in the sole
discretion of the Committee, may include the lapsing of restrictions based
solely on the passage of time, on the attainment of individual and/or corporate
performance criteria or a combination thereof. The Agreement evidencing the
Award shall set forth any such restrictions and the basis on which such
restrictions shall lapse.
6.5.2 Effect of Change in Control. Unless the
Committee shall determine otherwise at the time of the grant of an Award of
Restricted Stock, the restrictions upon Shares of Restricted Stock shall lapse
upon a Change in Control. The Agreement evidencing the Award shall set forth any
such provisions.
6.6 Treatment of Dividends. At the time an Award of
Shares of Restricted Stock is granted, the Committee may, in its discretion,
determine that the payment to the Grantee of dividends, or a specified portion
thereof, declared or paid on such Shares by the Company shall be (a) deferred
until the lapsing of the restrictions imposed upon such Shares and (b) held by
the Company for the account of the Grantee until such time. In the event that
dividends are to be deferred, the Committee shall determine whether such
dividends are to be reinvested in Shares (which shall be held as additional
Shares of Restricted Stock) or held in cash. If deferred dividends are to be
held in cash, there may be credited at the end of each year (or portion thereof)
interest on the amount of the account at the beginning of the year at a rate per
annum as the Committee, in its discretion, may determine. Payment of deferred
dividends in respect of Shares of Restricted Stock (whether held in cash or as
additional Shares of Restricted Stock), together with interest accrued thereon,
if any, shall be made upon the lapsing of restrictions imposed on the Shares in
respect of which the deferred dividends were paid, and any dividends deferred
(together with any interest accrued thereon) in respect of any Shares of
Restricted Stock shall be forfeited upon the forfeiture of such Shares.
6.7 Effect of a Termination of Employment or Service
6.7.1 Except as provided in Section 6.7.3, if the
Grantee's employment with the Company is terminated (or, in the case of a
Grantee who is a director of the Company but not an employee, if the Grantee
ceases to serve as a director of the Company) for any reason other than death,
Disability or a Change in Control prior to the expiration of any restrictions
applicable to any Shares of Restricted Stock then held by the Grantee, such
Shares shall thereupon be forfeited immediately by the Grantee and returned to
the Company.
6.7.2 If the Grantee's employment with the Company
is terminated (or, in the case of a Grantee who is a director of the Company but
not an employee, if the Grantee ceases to serve as a director of the Company) as
a result of death or Disability prior to the expiration of any restrictions
applicable to any Shares of Restricted Stock then held by the Grantee, any
restrictions and other conditions pertaining to such Shares then held by the
Grantee, including, but not limited to, vesting requirements, shall immediately
lapse and such Shares shall thereafter be immediately transferable and
nonforfeitable.
6.7.3 Notwithstanding anything in the Plan to the
contrary, the Committee may determine, in its sole discretion, in the case the
Grantee's employment with the
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Company is terminated (or, in the case of a Grantee who is a director of the
Company but not an employee, if the Grantee ceases to serve as a director of the
Company) other than for Cause, that the restrictions on some or all of the
Shares of Restricted Stock then held by the Grantee shall immediately lapse and
such Share shall thereafter be immediately transferable and nonforfeitable.
6.8 Delivery of Shares. Upon the lapse of the
restrictions on Shares of Restricted Stock, the Committee shall cause a stock
certificate to be delivered to the Grantee with respect to such Shares, free of
all restrictions hereunder.
7 Adjustment Upon Changes in Capitalization
In the event of a Change in Capitalization, the Committee
shall conclusively determine the appropriate adjustments, if any, to (i) the
maximum number and class of Shares or other stock or securities with respect to
which Awards may be granted under the Plan, and (ii) the number and class of
Shares or other stock or securities which are subject to outstanding Awards
granted under the Plan and the exercise price therefor, if applicable.
8 Effect of Certain Transactions
Subject to Section 6.5.2 or as otherwise provided in an
Agreement, in the event of (a) the liquidation or dissolution of the Company or
(b) a merger or consolidation of the Company (a "Transaction"), the Plan and
Awards issued hereunder shall continue in effect in accordance with their
respective terms, except that following a Transaction either (i) each
outstanding Award shall be treated as provided for in the agreement entered into
in connection with the Transaction or (ii) if not so provided in such agreement,
each Grantee shall be entitled to receive in respect of each Share subject to
any outstanding Awards, as the case may be, upon payment or transfer in respect
of any Award, the same number and kind of stock, securities, cash, property or
other consideration that each holder of a Share was entitled to receive in the
Transaction in respect of a Share; provided, however, that such stock,
securities, cash, property, or other consideration shall remain subject to all
of the conditions, restrictions and performance criteria which were applicable
to the Awards prior to such Transaction.
9 Interpretation
The Plan is intended to comply with Rule 16b-3 promulgated
under the Exchange Act and the Committee shall interpret and administer the
provisions of the Plan or any Agreement in a manner consistent therewith. Any
provisions inconsistent with such Rule shall be inoperative and shall not affect
the validity of the Plan.
10 Pooling Transactions
Notwithstanding anything contained in the Plan or any
Agreement to the contrary, in the event of a Change in Control which is also
intended to constitute a Pooling Transaction, the Committee shall take such
actions, if any, as are specifically recommended by an independent accounting
firm retained by the Company to the extent reasonably necessary in order to
assure that the Pooling Transaction will qualify as such, including but no
limited to (a)
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deferring vesting, exercise, payment, settlement or lapsing or restrictions with
respect to any Award and (b) providing that the payment or settlement in respect
of any Award be made in the form of cash, Shares or securities of a successor or
acquirer of the Company, or a combination of the foregoing.
11 Termination and Amendment of the Plan or Modification of
Awards
11.1 Plan Amendment or Termination. The Plan shall
terminate on the day preceding the tenth anniversary of the date of its adoption
by the Board and no Award may be granted thereafter. The Board may sooner
terminate the Plan and the Board may at any time and from time to time amend,
modify or suspend the Plan; provided, however, that:
(a) no such amendment, modification, suspension or
termination shall impair or adversely alter any Awards theretofore granted under
the Plan, except with the consent of the Grantee, nor shall any amendment,
modification, suspension or termination deprive any Grantee of any Shares which
he or she may have acquired through or as a result of the Plan; and
(b) to the extent necessary under any applicable law,
regulation or exchange requirement no amendment shall be effective unless
approved by the stockholders of the Company in accordance with applicable law,
regulation or exchange requirement.
11.2 Modification of Awards. No modification of an Award
shall adversely alter or impair any rights or obligations under the Award
without the consent of the Grantee, as the case may be.
12 Non-Exclusivity of the Plan
The adoption of the Plan by the Board shall not be construed
as amending, modifying or rescinding any previously approved incentive
arrangement or as creating any limitations on the power of the Board to adopt
such other incentive arrangements as it may deem desirable and such arrangement
s may be either applicable generally or only in specific cases.
13 Limitation of Liability
As illustrative of the limitations of liability of the
Company, but not intended to be exhaustive thereof, nothing in the Plan shall be
construed to:
(a) give any person any right to be granted an Award other than at
the sole discretion of the Committee;
(b) give any person any rights whatsoever with respect to Shares
except as specifically provided in the Plan;
(c) limit in any way the right of the Company or any Subsidiary to
terminate the employment of any person at any time; or
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(d) be evidence of any agreement or understanding, expressed or
implied, that the Company will employ any person at any particular rate of
compensation or for any particular period of time.
14 Regulations and Other Approvals; Governing Law
14.1 Except as to matters of federal law, the Plan and the
rights of all persons claiming hereunder shall be construed and determined in
accordance with the laws of the State of Ohio without giving effect to conflicts
of laws principles thereof.
14.2 The obligation of the Company to sell or deliver
Shares with respect to Awards granted under the Plan shall be subject to all
applicable laws, rules and regulations, including all applicable federal and
state securities laws, and the obtaining of all such approvals by governmental
agencies as may be deemed necessary or appropriate by the Committee.
14.3 The Board may make such changes as may be necessary
or appropriate to comply with the rules and regulations of any government
authority.
14.4 Each Award is subject to the requirement that, if at
any time the Committee determines, in its discretion, that the listing,
registration or qualifications of Shares issuable pursuant to the Plan is
required by any securities exchange or under any state or federal law, or the
consent or approval of any governmental regulatory body is necessary or
desirable as a condition of, or in connection with, the grant of an Award or the
issuance of Shares, no Awards shall be granted or payment made or Shares issued,
in whole or in part, unless listing, registration, qualification, consent or
approval has been effected or obtained free of any conditions as acceptable to
the Committee.
14.5 Notwithstanding anything contained in the Plan or in
any Agreement to the contrary, in the event that the disposition of Shares
acquired pursuant to the Plan is not covered by a then current registration
statement under the Securities Act of 1933, as amended (the "Securities Act"),
and is not otherwise exempt from such registration, such Shares shall be
restricted against transfer to the extent required by the Securities Act and
Rule 144 or other regulations thereunder. The Committee may require any
individual receiving Shares pursuant to an Award granted under the Plan, as a
condition precedent to receipt of such Shares, to represent and warrant to the
Company in writing that the Shares acquired by such individual are acquired
without a view to any distribution thereof and will not be sold or transferred
other than pursuant to an effective registration thereof under said Act or
pursuant to any exemption applicable under the Securities Act or the rules and
regulations promulgated thereunder. The certificates evidencing any of such
Shares shall be appropriately amended or have an appropriate legend placed
thereon to reflect their status as restricted securities as aforesaid.
15 Miscellaneous
15.1 Multiple Agreements. The terms of each Award may
differ from other Awards granted under the Plan at the same time, or at some
other time. The Committee may also grant more than one Award to a given Eligible
Individual during the term of the Plan,
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either in addition to, or in substitution for, one or more Awards previously
granted to that Eligible Individual.
15.2 Withholding of Taxes. At such time as a Grantee
recognizes taxable income in connection with the receipt of Shares or cash
hereunder (a "Taxable Event"), the Grantee shall pay to the Company an amount
equal to the federal, state and local income taxes and other amounts as may be
required by law to be withheld by the Company in connection with the Taxable
Event (the "Withholding Taxes") prior to the issuance, or release from escrow,
of such Shares or the payment of such cash. The Company shall have the right to
deduct from any payment of cash to a Grantee an amount equal to the Withholding
Taxes in satisfaction of the obligation to pay Withholding Taxes. The Committee
may provide in the Agreement at the time of grant, or at any time thereafter,
that the Grantee, in satisfaction of the obligation to pay Withholding Taxes to
the Company, may elect to have withheld a portion of the Shares then issuable or
transferrable to him or her having an aggregate Fair Market Value equal to the
Withholding Taxes.
15.3 Effective Date. This Plan shall be effective upon its
adoption by the Board on January 29, 2001.