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EXHIBIT 10.47
CALIFORNIA BEACH RESTAURANTS, INC.
OMNIBUS STOCK PLAN, AS AMENDED JUNE 20, 1997
1. Purpose. The purpose of California Beach Restaurants, Inc.'s Omnibus Stock
Plan (the "Plan") is to promote the long term financial interests and growth of
California Beach Restaurants, Inc. (the "Company") by (a) attracting and
retaining executive personnel, (b) motivating executive personnel by means of
growth-related incentives, (c) providing incentive compensation opportunities
that are competitive with those of other comparable corporations; and (d)
furthering the identity of interests of participants with those of the
shareholders of the Company.
2. Definitions. The following definitions are applicable to the Plan:
"Affiliate" means any entity in which the Company has a direct or
indirect equity interest which is so designated by the Committee.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor statute.
"Committee" means a committee of two or more directors of the Company
who are "Non-Employee Directors" as such term is used in Rule 16b-3 provided
that if there are not at least two such directors, Committee means a committee
of two or more directors of the Company and in such case any grants or awards
hereunder to a participant subject to Section 16 of the Securities Exchange Act
of 1934, as amended, shall also be approved by the Board of Directors of the
Company. To the extent that it is desired that compensation resulting from a
particular award be excluded from the deduction limitation of Section 162(m) of
the Code, all directors comprising the Committee granting such award also shall
be "outside directors" within the meaning of Code Section 162(m).
"common stock" means the common stock, par value $.01, of the Company or
such other securities as may be substituted therefor pursuant to paragraph 5(c).
The "fair market value" of the common stock shall be determined in
accordance with procedures established by the Committee.
"participant" means any key employee of, director of, or consultant to
the Company or an Affiliate selected by the Committee.
"Rule 16b-3" means such rule adopted under the Securities Exchange Act
of 1934, as amended, or any successor rule.
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"Termination Date" means March 9, 2005, the date 10 years from when the
Plan was adopted by the Board of Directors of the Company.
3. Limitation on Aggregate Shares. The number of shares of common stock with
respect to which awards may be granted under the Plan and which may be issued
upon the exercise or payment thereof shall not exceed, in the aggregate,
1,000,000 shares; provided, however, that to the extent any awards expire
unexercised or unpaid or are cancelled, terminated or forfeited in any manner
without the issuance of shares of common stock thereunder, or if the Company
receives any shares of common stock as the exercise price of any award, such
shares shall again be available under the Plan. Such 1,000,000 shares of common
stock shall be authorized and unissued shares.
4. Awards. The Committee may grant to participants, in accordance with this
paragraph 4 and the other provisions of the Plan, stock options, stock
appreciation rights ("SARs"), restricted stock and other awards.
(a) Options.
(i) Options granted under the Plan may be incentive stock
options ("ISOs") within the meaning of Section 422 of the Code or any successor
provision, or in such other form, consistent with the Plan, as the Committee may
determine. ISOs may only be granted to employee participants.
(ii) The option price per share of common stock shall be fixed
by the Committee at not less than (A) 100% of the fair market value of a share
of common stock on the date of grant as to ISOs and (B) the par value of a share
of common stock as to other options.
(iii) Options shall be exercisable at such time or times as the
Committee shall determine at or subsequent to grant.
(iv) Options shall be exercised in whole or in part by written
notice to the Company (to the attention of the Corporate Secretary) and payment
in full of the option price. Payment of the option price may be made, at the
discretion of the optionee, and to the extent permitted by the Committee, (A) in
cash (including check, bank draft, or money order), (B) in common stock (valued
at the fair market value thereof on the date of exercise), (C) by a combination
of cash and common stock or (D) with any other consideration.
(b) SARs.
(i) An SAR shall entitle its holder to receive from the Company,
at the time of exercise of such right, an amount equal to the excess of the fair
market value (at
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the date of exercise) of a share of common stock over a specified price fixed by
the Committee multiplied by the number of shares as to which the holder is
exercising the SAR. SARs may be in tandem with any previously or
contemporaneously granted option or independent of any option. The specified
price of a tandem SAR shall be the option price of the related option. The
amount payable may be paid by the Company in common stock (valued at its fair
market value on the date of exercise), cash or a combination thereof, as the
Committee may determine, which determination shall be made after considering any
preference expressed by the holder.
(ii) An SAR shall be exercised by written notice to the Company
(to the attention of the Corporate Secretary) at any time prior to its stated
expiration. To the extent a tandem SAR is exercised, the related option will be
cancelled and, to the extent the related option is exercised, the tandem SAR
will be cancelled.
(c) Restricted Stock.
(i) The Committee may award to any participant shares of common
stock, subject to this paragraph 4(c) and such other terms and conditions as the
Committee may prescribe (such shares being called "restricted stock"). Each
certificate for restricted stock shall be registered in the name of the
participant and deposited, together with a stock power endorsed in blank, with
the Company.
(ii) There shall be established for each restricted stock award
a restriction period (the "restriction period") of such length as shall be
determined by the Committee. Shares of restricted stock may not be sold,
assigned, transferred, pledged or otherwise encumbered, except as hereinafter
provided, during the restriction period. Except for such restrictions on
transfer and such other restrictions as the Committee may impose, the
participant shall have all the rights of a holder of common stock as to such
restricted stock. The Committee, in its sole discretion, may permit or require
the payment of cash dividends to be deferred and, if the Committee so
determines, reinvested in additional restricted stock or otherwise invested. At
the expiration of the restriction period, the Company shall redeliver to the
participant (or the participant's legal representative or designated
beneficiary) the certificates deposited pursuant to this paragraph.
(iii) Except as provided by the Committee at the time of grant
or otherwise, upon termination of employment for any reason during the
restriction period all shares still subject to restriction shall be forfeited by
the participant.
(d) Other Awards.
(i) Other awards, including, without limitation, performance shares,
convertible debentures, other convertible securities and other forms of awards
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measured in whole or in part by the value of shares, the performance of the
participant or the performance of the Company, may be granted under the Plan.
Such awards may be payable in common stock, cash or both, and shall be subject
to such restrictions and conditions, as the Committee shall determine. At the
time of such an award, the Committee shall, if applicable, determine a
performance period and performance goals to be achieved during the performance
period, subject to such later revisions as the Committee shall deem appropriate
to reflect significant unforeseen event such as changes in laws, regulations or
accounting practices, unusual or non-recurring items or occurrences. Following
the conclusion of each performance period, the Committee shall determine the
extent to which performance goals have been attained or a degree of achievement
between maximum and minimum levels during the performance period in order to
evaluate the level of payment to be made, if any.
(ii) A participant may elect to defer all or a portion of any
such award in accordance with procedures established by the Committee. Deferred
amounts will be subject to such terms and conditions and shall accrue such yield
thereon (which may be measured by the fair market value of the common stock and
dividends thereon) as the Committee may determine. Payment of deferred amounts
may be in cash, common stock or a combination thereof, as the Committee may
determine. Deferred amounts shall be considered an award under the Plan. The
Committee may establish a trust to hold deferred amounts or any portions thereof
for the benefit of participants.
(e) Cash Payments. SARs and options which are not ISOs may, in
the Committee's discretion, provide that in connection with exercises thereof
the holders will receive cash payments in amounts necessary to reimburse holders
for their income tax liability resulting from such exercise and the payment made
pursuant to this paragraph 4(e).
5. Miscellaneous Provisions.
(a) Administration. The Plan shall be administered by the
Committee. Subject to the limitations of the Plan, the Committee shall have the
sole and complete authority: (i) to select participants in the Plan, (ii) to
make awards in such forms and amounts as it shall determine, (iii) to impose
such limitations, restrictions and conditions upon such awards as it shall deem
appropriate, (iv) to interpret the Plan and to adopt, amend and rescind
administrative guidelines and other rules and regulations relating to the Plan,
(v) to correct any defect or omission or to reconcile any inconsistency in the
Plan or in any award granted hereunder and (vi) to make all other determinations
and to take all other actions necessary or advisable for the implementation and
administration of the Plan. The Committee's determinations on matters within its
authority shall be conclusive and binding upon the Company and all other
persons. All expenses associated with the Plan shall be borne by the Company,
subject to such allocation to its Affiliates and operating units as it deems
appropriate.
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The Committee may, to the extent that any such action will not prevent awards to
participants subject Section 16 of the Securities Exchange Act of 1934, as
amended, from complying with Rule 16b-3, delegate any of its authority hereunder
to such persons as it deems appropriate.
(b) Non-Transferability. Subject to the provisions of paragraph
5(f), and except as otherwise provided by the Committee at the time of grant or
thereafter no award under the Plan, and no interest therein, shall be
transferable by the participant otherwise than by will or the laws of descent
and distribution. Except as otherwise provided by the Committee, all awards
shall be exercisable or received during the participant's lifetime only by the
participant or the participant's legal representative. Any purported transfer
contrary to this provision will nullify the award.
(c) Adjustments Upon Certain Changes. In the event of a merger,
consolidation, reorganization, recapitalization, spinoff, stock dividend or
stock split, or combination or other increase or reduction in the number of
issued shares of common stock, or extraordinary cash dividend or any other
similar event, the Board of Directors or the Committee may, in order to prevent
the dilution or enlargement of rights under awards, make such adjustments in the
number and type of shares authorized by the Plan, the number and type of shares
covered by, or with respect to which payments are measured under, outstanding
awards and the exercise prices specified therein as may be determined to be
appropriate and equitable. The Committee may provide in the agreement evidencing
any award for adjustments to such award in order to prevent the dilution or
enlargement of rights thereunder or to provide for acceleration of benefits
thereunder in the event of a change in control, merger, consolidation,
reorganization, recapitalization, sale or exchange of substantially all assets
or dissolution of, or spinoff or similar transaction by, the Company.
(d) Tax Withholding. The Committee shall have the power to
withhold, or require a participant to remit to the Company, an amount sufficient
to satisfy any withholding or other tax due with respect to any amount payable
and/or shares issuable under the Plan, and the Committee may defer such payment
or issuance unless indemnified to its satisfaction. Subject to the consent of
the Committee, a participant may make an irrevocable election to have shares of
common stock otherwise issuable under an award withheld, tender back to the
Company shares of common stock received pursuant to an award or deliver to the
Company previously acquired shares of common stock having a fair market value
sufficient to satisfy all or part of the participant's estimated tax obligations
associated with the transaction. Such election must be made by a participant
prior to the date on which the relevant tax obligation arises. The Committee may
disapprove of any election and may limit, suspend or terminate the right to make
such elections.
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(e) Listing and Legal Compliance. The Committee may suspend the
exercise or payment of any award so long as it determines that securities
exchange listing or registration or qualification under any securities laws is
required in connection therewith and has not been completed on terms acceptable
to the Committee.
(f) Beneficiary Designation. Subject to paragraph 5(b),
participants may name, from time to time, beneficiaries (who may be named
contingently or successively) to whom benefits under the Plan are to be paid in
the event of their death before they receive any or all such benefit. Each
designation will revoke all prior designations by the same participant, shall be
in a form prescribed by the Committee, and will be effective only when filed by
the participant in writing with the Committee during the participant's lifetime.
In the absence of any such designation, benefits remaining unpaid at the
participant's death shall be paid to the participant's estate.
(g) Rights of Participants. Nothing in the Plan shall interfere
with or limit in any way the right of the Company to terminate any participant's
employment at any time, nor confer upon any participant any right to continue in
the employ of the Company for any period of time or to continue his or her
present or any other rate of compensation. No employee shall have a right to be
selected as a participant, or, having been so selected, to be selected again as
a participant.
(h) Amendment, Suspension and Termination of Plan. The Board of
Directors or the Committee may suspend or terminate the Plan or any portion
thereof at any time and may amend it from time to time in such respects as the
Board of Directors or the Committee may deem advisable; provided, however, that
no such amendment shall be made, without shareholder approval to the extent such
approval is required by law, agreement or the rules of any exchange upon which
the common stock is listed, and provided further that the Plan shall terminate
no later than the Termination Date, and no awards may be granted thereafter to
any participant. No such amendment, suspension or termination shall impair the
rights of participants under outstanding awards without the consent of the
participants affected thereby or make any change that would disqualify awards to
participants subject to Section 16 of the Securities Exchange Act of 1934, as
amended, from the exemption provided by Rule 16b-3.
The Committee may amend or modify any award in any manner to the extent
that the Committee would have had the authority under the Plan to initially
grant such award. No such amendment or modification shall impair the rights of
any participant under any award without the consent of such participant.
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