1
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE SECURITIES
EXCHANGE ACT OF 1934
Filed by the Registrant /x/
Filed by a Party other than the Registrant / /
Check the appropriate box:
/ / Preliminary Proxy Statement / / Confidential, for Use of the Commission
Only (as permitted by Rule 14a-6(e)(2))
/x/ Definitive Proxy Statement
/ / Definitive Additional Materials
/ / Soliciting Material Pursuant to ss.240.14a-11(c) or ss.240.14a-12
- --------------------------------------------------------------------------------
Cooker Restaurant Corporation
(Name of Registrant as Specified in Its Charter)
- --------------------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
/x/ $125 per Exchange Act Rules 0-11(c)(1)(ii), 14a-6(i)(1), 14a-6(i)(2)
or Item 22(a)(2) of Schedule 14A.
/ / $500 per each party to the controversy pursuant to Exchange Act Rule
14a-6(i)(3).
/ / Fee computed on table below per Exchange Act Rules 14a-6(i)(4)
and 0-11.
(1) Title of each class of securities to which transaction applies:
- --------------------------------------------------------------------------------
(2) Aggregate number of securities to which transaction applies:
- --------------------------------------------------------------------------------
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing
fee is calculated and state how it was determined):
- --------------------------------------------------------------------------------
(4) Proposed maximum aggregate value of transaction:
- --------------------------------------------------------------------------------
(5) Total fee paid:
- --------------------------------------------------------------------------------
/ / Fee paid previously with preliminary materials.
- --------------------------------------------------------------------------------
/ / Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number, or
the Form or Schedule and the date of its filing.
- --------------------------------------------------------------------------------
(1) Amount Previously Paid:
- --------------------------------------------------------------------------------
(2) Form, Schedule or Registration Statement No.:
- --------------------------------------------------------------------------------
(3) Filing Party:
- --------------------------------------------------------------------------------
(4) Date Filed:
- --------------------------------------------------------------------------------
2
COOKER RESTAURANT CORPORATION
5500 VILLAGE BOULEVARD
WEST PALM BEACH, FLORIDA 33407
1996 ANNUAL MEETING OF SHAREHOLDERS
March 15, 1996
Dear Shareholder:
You are cordially invited to attend the 1996 Annual Meeting of
Shareholders of Cooker Restaurant Corporation which will be held at 10:30 a.m.,
Eastern Daylight Time, on April 22, 1996 at our headquarters, 5500 Village
Boulevard, West Palm Beach, Florida. The matters on the meeting agenda are
described in the Notice of 1996 Annual Meeting of Shareholders and Proxy
Statement which accompany this letter.
We hope you will be able to attend the meeting, but, whatever your plans,
we ask that you please complete, execute, and date the enclosed proxy card and
return it in the envelope provided so that your shares will be represented at
the meeting.
Very truly yours,
/s/ G. Arthur Seelbinder
G. Arthur Seelbinder
Chairman of the Board and
Chief Executive Officer
3
COOKER RESTAURANT CORPORATION
NOTICE OF 1996 ANNUAL MEETING OF SHAREHOLDERS
TO BE HELD APRIL 22, 1996
TO THE SHAREHOLDERS OF
COOKER RESTAURANT CORPORATION:
The Annual Meeting of Shareholders of Cooker Restaurant Corporation (the
"Company") will be held at our headquarters, 5500 Village Boulevard, West Palm
Beach, Florida, on Monday, April 22, 1996 at 10:30 a.m., Eastern Daylight Time,
for the following purposes:
1. To elect three directors, each to serve for a term of three years or
until their successors are duly elected and qualified.
2. To consider and vote upon a proposal to approve the 1996 Officers'
Stock Option Plan.
3. To transact such other business as may properly come before the
meeting or any adjournment thereof.
The Board of Directors has fixed the close of business on March 1, 1996 as
the record date for the determination of shareholders entitled to notice of and
to vote at the Annual Meeting and any adjournment thereof. A list of
shareholders will be available for examination by any shareholder at the Annual
Meeting.
WHETHER OR NOT YOU PLAN TO ATTEND THE ANNUAL MEETING, PLEASE SIGN, DATE,
AND RETURN THE ENCLOSED PROXY CARD IN THE ENVELOPE PROVIDED.
By Order of the Board of Directors
/s/ G. Arthur Seelbinder
G. Arthur Seelbinder
Chairman of the Board and
Chief Executive Officer
West Palm Beach, Florida
March 15, 1996
4
COOKER RESTAURANT CORPORATION
-----------------------------
1996 ANNUAL MEETING OF SHAREHOLDERS
APRIL 22, 1996
-----------------------------------
PROXY STATEMENT
DATED MARCH 15, 1996
-----------------------------------
GENERAL INFORMATION
Solicitation. This Proxy Statement is furnished to the shareholders of
Cooker Restaurant Corporation, an Ohio corporation (the "Company"), in
connection with the solicitation by the Board of Directors of the Company (the
"Board of Directors") of proxies to be voted at the 1996 Annual Meeting of
Shareholders of the Company (the "Annual Meeting") to be held on April 22, 1996
and any adjournment thereof. This Proxy Statement and the accompanying proxy
card are first being mailed to shareholders on or about March 15, 1996.
Voting Rights. Shareholders of record at the close of business on March 1,
1996 are entitled to notice of and to vote at the Annual Meeting. As of that
date, there were approximately 7,151,000 Common Shares of the Company, without
par value ("Common Shares"), issued and outstanding. Each shareholder of record
on March 1, 1996 is entitled to one vote per Common Share held of record on all
matters which may be brought before the Annual Meeting.
Authorization. All shares represented by properly executed proxies
received by the Company pursuant to this solicitation will be voted in
accordance with the shareholder's directions specified on the proxy card. If no
directions have been specified by marking the appropriate square on the
accompanying proxy card, the shares represented by such proxy will be voted in
accordance with the recommendation of the Board of Directors, which is (1) FOR
the election of Henry R. Hillenmeyer, Margaret T. Monaco, and Phillip L.
Pritchard as directors of the Company and (2) FOR the approval of the 1996
Officers' Stock Option Plan. The proxy will also be voted at the discretion of
the persons acting under the proxy to transact such other business as may
properly come before the Annual Meeting and any adjournment thereof.
Revocation. Any shareholder returning the accompanying proxy has the power
to revoke it at any time before its exercise by giving written notice of
revocation to the Company (addressed to the attention of the Secretary), by
giving oral notice of revocation to the Company at the Annual Meeting, by duly
executing and delivering to the Company a proxy card bearing a later date, or
by voting in person at the Annual Meeting.
Tabulation. Under Section 1701.51 of the Ohio Revised Code ("ORC") and the Code
of Regulations of the Company, a quorum must be present at the Annual Meeting
in order for any valid action, including the election of directors and voting
on the other matters presented to the meeting, other than adjournment, to be
taken thereat. The Code of Regulations of the Company provides that a quorum
consists of the holders of a majority of the voting shares present in person or
by proxy. Shares represented by signed proxies that are returned to the Company
will be counted toward the quorum in all matters even though they are marked as
"Abstain," "Against" or "Withhold Authority" on one or more or all matters or
they are not marked at all (see "Authorization"). Broker/dealers, who hold
their customers' shares in street name, may, under the applicable rules of the
exchange and other self-regulatory organizations of which the broker/dealers
are members, sign and submit proxies for such shares and may vote such shares
on routine matters, which, under such rules, typically include the election of
directors, but broker/dealers may not vote such shares on other matters, which
typically include amendments to the articles of incorporation of the Company
and the approval of stock compensation plans, without specific instructions
from the customer who owns such shares. Proxies signed and submitted by
broker/dealers which have not been voted on
5
certain matters as described in the previous sentence are referred to as broker
non-votes. Such proxies count toward the establishment of a quorum.
Under Section 1701.55 of the ORC, directors are elected by a plurality of
the votes for the respective nominees. Therefore, proxies that are marked
"Withhold Authority" and broker non-votes, if any, will not affect the election
of directors.
Under Rule 16b-3 ("Rule 16b-3") promulgated by the Securities and Exchange
Commission under Section 16 of the Securities Exchange Act of 1934, the 1996
Officers' Stock Option Plan must be approved by the affirmative vote of the
holders of a majority of the Common Shares present, or represented, and
entitled to vote, at the Annual Meeting at which a quorum is present. For the
purpose of Rule 16b-3, a proxy marked "Abstain" has the same effect as a vote
against approval but a broker non-vote is disregarded in determining the number
of shares voted for approval and in determining the total number of shares as
to which the majority is determined in such matter. Under Section 162(m) of the
Internal Revenue Code of 1986 and the regulations thereunder (the "Code"), the
Plan is deemed to be approved by the shareholders if a majority of the votes
cast on the issue are cast in favor of approval. For purposes of Section
162(m), a proxy marked "Abstain" has the same effect as a vote against approval
but a broker non-vote is disregarded in determining the number of shares voted
for approval and in determining the total number of shares as to which the
majority is determined in such matter. Thus, the same approval will suffice for
Rule 16b-3 and Section 162(m).
ELECTION OF DIRECTORS
NOMINEES FOR ELECTION AS DIRECTORS
At the Annual Meeting, three nominees will be elected as directors. See
"General Information - Tabulation." Directors elected at the Annual Meeting
will hold office for a three-year term expiring at the Annual Meeting of
Shareholders in 1999 or until their successors are elected and qualified. The
Company has no reason to believe that any of the nominees will not stand for
election or serve as a director. If any person nominated fails to stand for
election, the proxies will be voted for the election of such other person as
shall be designated by the persons named in the proxy.
THE BOARD OF DIRECTORS HAS NOMINATED THE FOLLOWING PERSONS TO SERVE AS
DIRECTORS OF THE COMPANY:
HENRY R. HILLENMEYER, age 52, has been a director of the Company since
1994. Since March 1995, Mr. Hillenmeyer has served as the Chairman and Chief
Executive Officer of Skill Search Corporation, a resume database company. He
also was Chairman and President of Southern Hospitality Corporation, a Wendy's
franchise operator based in Nashville, Tennessee, from May 1988 to October
1994.
MARGARET T. MONACO, age 48, has served as a director of the Company since
1994. She has been a corporate financial consultant with Probus Advisors, a
management/financial consulting firm, since July 1993. From October 1987 to
June 1993, she was Vice President and Treasurer of The Limited, Inc. She is a
director of Barnes & Noble, Inc. and Crown America Realty Trust. She has an MBA
degree from Columbia Graduate School of Business Administration.
PHILLIP L. PRITCHARD, age 46, has been a director of the Company since
1994 and has served as the President and Chief Operating Officer of the Company
since December 1994. Prior to joining the Company, Mr. Pritchard spent 22 years
with General Mills Restaurants Inc. ("GMRI"). Most recently, Mr. Pritchard
served as Executive Vice President, Operations for GMRI's Red Lobster
restaurants from 1986 through 1992 and Executive Vice President, Operations for
GMRI's China Coast restaurants from 1992 to 1993. He has an MBA degree from
Rolins College Graduate School of Business Administration.
DIRECTORS WHOSE TERMS CONTINUE UNTIL THE 1997 ANNUAL MEETING:
GLENN W. COCKBURN, age 40, is one of the founders of the Company. He
has been a director of the Company since 1989. In 1991, he was elected Senior
Vice President - Operations of the Company. He was Vice
-2-
6
President - Food Services of the Company from 1988 to 1991 and was Vice
President of Food Operations of Cooker Corporation (a predecessor of the
Company) from 1986 to 1988 when it was merged into the Company. He is a
graduate of the Culinary Institute of America in Hyde Park, New York.
DAVID T. KOLLAT, age 57, has been a director of the Company since 1988 and
is Chairman of 22 Inc., a company specializing in research and consulting for
retailers and consumer goods manufacturers. He is a director of Consolidated
Stores, Inc., The Limited, Inc., Wolverine Worldwide, Inc. and Audio
Environments, Inc. He earned his Doctor of Business Administration degree at
Indiana University, and was a Professor of Marketing in the College of
Administrative Sciences of The Ohio State University from 1965 to 1972.
JOSEPH E. MADIGAN, age 63, has been a director of the Company since 1989
and is the President of and a corporate financial consultant with Madigan
Associates, a consulting firm established in 1988. He is a director and, since
1995, the Chairman of the Board, of Cardinal Realty Services, Inc., a
multi-family housing enterprise, and a director of Skyline Chili, Inc., a fast
service restaurant company and food producer. He has an MBA degree from the
Graduate School of Business Administration of New York University.
DIRECTORS WHOSE TERMS CONTINUE UNTIL THE 1998 ANNUAL MEETING:
DAVID L. HOBSON, age 59, has been a director of the Company since 1986.
Mr. Hobson became a member of the United States House of Representatives in
January 1991. Before being elected to the House of Representatives, he served
as a member of the Ohio Senate for more than five years and was its president
pro-tem.
ROBIN V. HOLDERMAN, age 44, has been a director of the Company since 1986.
Mr. Holderman has been President of Ruscilli Development Co., Ltd., a real
estate development company, since May 1995. He served as Manager of Industrial
Development of Duke Realty Investments, Inc., a real estate development
company, from April 1994 to May 1995, and prior thereto was President of
Conquest Corporation, a commercial and industrial real estate development
company located in Columbus, Ohio, which he founded more than nine years ago.
From 1990 through 1992, he was the Director of Development for the Columbus
office of the Miller-Valentine Group, a Dayton, Ohio-based commercial real
estate developer and design/build contractor.
G. ARTHUR SEELBINDER, age 52, is one of the founders of the Company. He
has been Chairman of the Board, Chief Executive Officer and a director of the
Company since 1986 and served as President from September 1989 until December
1994. He was Chairman of the Board of Cooker Corporation from 1984 until 1988
when it was merged into the Company. Mr. Seelbinder is also a director and the
President of Financial Land Corporation, a real estate holding company.
BOARD OF DIRECTORS MEETINGS
The Board of Directors held four meetings in fiscal 1995 and each of the
directors attended at least 75 percent of the aggregate number of meetings of
the Board of Directors and committees (if any) on which he served.
COMMITTEES
The Company has a standing Audit Committee and a standing Compensation
Committee. The Company does not have a committee whose functions include
nominating directors.
The Audit Committee (comprised of Robin V. Holderman, David T. Kollat,
Joseph E. Madigan and Margaret T. Monaco) recommends the firm to be employed by
the Company as its independent auditors; reviews, in consultation with the
independent auditors, their report of audit, or proposed report of audit, and
the management letter, if any; consults with the independent auditors
(periodically and, as appropriate, out of the presence of management) with
regard to the adequacy of the internal accounting controls; and approves
transactions between the Company and its officers. The Audit Committee held two
meetings in fiscal 1995.
The Compensation Committee (comprised of Henry R. Hillenmeyer, David L.
Hobson, Robin V. Holderman, and David T. Kollat) establishes the compensation
of all officers and management employees of the Company, adopts compensation
plans for them, approves employment agreements with such persons, administers
and inter-
-3-
7
prets the 1988 and 1992 Employee Stock Option Plans, takes any action that is
permitted to be taken by a committee of the Board of Directors under the terms
of such plans, including the granting of options, and provides instructions to
the trustee of the Company's employee stock ownership plan (the "ESOP") with
respect to the voting of unallocated Common Shares thereunder. The Compensation
Committee held two meetings in fiscal 1995.
APPROVAL OF 1996 OFFICERS' STOCK OPTION PLAN
PROPOSAL
The 1996 Officers' Stock Option Plan (the "Plan") was adopted by the Board
of Directors on January 29, 1996. If the Company's 1988 and 1992 Employee Stock
Option Plans are not amended at or before the Company's 1997 annual meeting of
shareholders in order to comply with the regulations of the Internal Revenue
Service under Section 162(m) of the Code or replaced with a plan that complies
with such regulations, the Company could lose substantial tax benefits
associated with the exercise of options granted after the end of its current
fiscal year. Furthermore, at the date hereof, only approximately 176,000 Common
Shares remain available for the grant of options under the Company's 1988 and
1992 Employee Stock Option Plans. Finally, the 1988 Employee Stock Option Plan
will expire by its own terms during 1997. The Board, therefore, considered
that, in order to maintain the availability of options to grant to the
Company's officers for the purposes described below, it should adopt the Plan
and request the shareholders to approve it. No grants of options under the Plan
have yet been made and it is unlikely that any will be made to current
employees in 1996.
PURPOSE, DURATION, AMENDMENT AND TERMINATION
The Plan is designed to attract and retain capable officers and
employee-directors and to provide them with the opportunity to acquire a
continuing ownership interest in the Company and long term incentives to
continue their services to the Company, and also to maximize the value of the
Company to its shareholders. No stock option ("Option") may be granted under
the Plan after the date that is ten years after the date the Plan was adopted
by the Board of Directors. The Board of Directors may at any time terminate the
Plan or make such amendment to the Plan as it may deem advisable. However, no
amendment will be effective without the approval of the shareholders of the
Company if it materially increases the benefits accruing to participants under
the Plan; materially increases the number of Common Shares which may be issued
under the Plan; or materially modifies the requirements as to eligibility for
participation in the Plan. No amendment or termination of the Plan will alter
or impair the rights of a person to whom an Option was granted (a "Grantee"),
or any Grantee's heir or legal representative to whom such Grantee's Option has
been transferred by will or the laws of descent and distribution (collectively
with the Grantee, a "Holder"), under any Option made before the adoption of
such amendment or termination by the Board of Directors, without the written
consent of such Holder.
ADMINISTRATION
The Plan will be administered by a committee of the Board of Directors
(the "Committee") consisting of two or more directors, each of whom is a
"disinterested person" as described in Rule 16b-3 and an "outside director" as
described in Section 162(m) of the Code. Unless the Board of Directors
designates another of its committees to administer the Plan, the Plan will be
administered by a committee consisting of those members of the Company's
Compensation Committee who are qualified but, if the Compensation Committee is
abolished or its membership does not contain two persons who are qualified, the
Board of Directors will either reconstitute the Compensation Committee or
create another committee that complies with these requirements to administer
the Plan. Subject to the express provisions of the Plan, and in addition to
the other powers granted by the Plan, the Committee has the authority, in its
discretion, to determine the Grantees; grant Options and determine their
timing, pricing and amount; define, prescribe, amend and rescind rules,
regulations, procedures, terms and conditions relating to the Plan; make all
other determinations necessary or advisable for administering the Plan
including, but not limited to, interpreting the Plan, correcting defects,
reconciling inconsistencies and resolving ambiguities; and review and resolve
all claims.
-4-
8
COMMON SHARES
The aggregate number of Common Shares in respect of which Options may be
granted under the Plan may not exceed 15 percent of the issued and outstanding
Common Shares from time to time, less the number of Common Shares subject to
then outstanding Options under the Plan or options then held by the Company's
executive officers and employee-directors under the Company's 1988 Employee
Stock Option Plan, 1992 Employee Stock Option Plan or any other plan or
contract providing for stock options, stock appreciation rights, restricted
stock awards or similar compensatory issuances of Common Shares to officers or
employee-directors. As of March 3, 1996, approximately 7,151,000 Common Shares
were issued and outstanding and the number of Common Shares subject to
outstanding options held by executive officers or employee-directors equaled
882,271 resulting in approximately 190,500 Common Shares which would have been
available for grant under the Plan on such date. As the Company issues
additional Common Shares and prior options are canceled, forfeited,
surrendered, terminated (whether by reason of the termination of employment of
an officer or employee-director or otherwise) or expire unexercised, the number
of Common Shares available for grants under the Plan will automatically adjust.
In addition, the number of Common Shares as to which options may be granted
under the Plan and the terms of any Option will be adjusted proportionately if
the Common Shares are split, combined or altered by a share dividend or a
merger, recapitalization or other corporate event. If any Option granted under
the Plan is canceled, terminates or expires for any reason without having been
exercised in full, the Common Shares related to the unexercised portion of the
Option may be used again. Except as otherwise determined by the Board of
Directors, the Common Shares issued under the Plan will be drawn from the
Company's authorized but unissued shares. However, Common Shares which are to
be delivered under the Plan may be obtained by the Company from its treasury,
by purchases on the open market or from private sources. The proceeds of the
exercise of any Option will be general corporate funds of the Company. As of
March 3, 1996, employees of the Company who are not eligible to receive Options
under the Plan held options to purchase approximately 245,000 Common Shares
subject to the terms of compensatory plans other than the Plan. The Board of
Directors and the Committee may grant options to persons other than officers
and employee-directors under compensatory plans other than the Plan free from
the limits on the number of Common Shares subject to Options under the Plan.
STOCK OPTIONS
Only employees of the Company who are executive officers or directors of
the Company and who are not members of the Committee are eligible to receive
Options under the Plan. On March 3, 1996, the Company had five eligible
employees. The Committee will determine which eligible employees will be
granted Options, the number of Common Shares for which the Options may be
exercised, the times when they will receive them and the terms and conditions
of individual Option grants (which need not be identical). The Committee will
determine the exercise price of each Option at the time that it is granted, but
in no event will the exercise price of an Option be less than the fair market
value of a Common Share on the date of grant, which is the closing price on the
principal national securities exchange on which the shares are listed on the
day prior to the date of determination. On March 3, 1996, the closing price of
a Common Share on The New York Stock Exchange was $12 7/8. An eligible person to
whom the Company is offering employment may be granted an Option under the
Plan, but any such grant shall lapse if the person does not subsequently become
an employee pursuant to such offer.
The Committee will determine the term during which an Option is
exercisable at the time that it is granted, but no Option will be exercisable
after ten years from the date of grant. Unless the Committee determines
otherwise at the time an Option is granted, each Option will vest and first
become exercisable as to 25 percent of the Common Shares originally subject to
the Option on each of the first four anniversaries of the date of grant
provided the Grantee has been an officer or director-employee continuously
during the time beginning on the date of grant and ending on the date when such
portion of the Option first becomes exercisable. Unless the Committee
determines otherwise at the time an Option is granted, each Option will lapse
and cease to be exercisable upon the earliest of ten years after the date of
grant, nine months after the Grantee ceases to be an officer or
director-employee because of death or disability, three months after the
Grantee's employment with the Company is terminated without cause, or
immediately upon termination of the Grantee's employment with the Company for
cause or by the Grantee's resignation.
Notwithstanding the terms of any Option, all Options that have not
previously been exercised nor lapsed and ceased to be exercisable will vest and
become exercisable upon the occurrence of any Change in Control if the
-5-
9
Grantee is then an officer or director-employee. A "Change in Control"
includes (a) the acquisition, directly or indirectly, by a person (other than
the Company or an employee benefit plan established by the Board of Directors)
of beneficial ownership of 20 percent or more of the Company's securities with
voting power in the next meeting to elect the directors; (b) a majority of the
directors elected at any meeting of the holders of the Company's voting
securities who are persons who were not nominated by the Company's then current
Board of Directors or authorized committee thereof; (c) the approval by the
shareholders of the Company of a merger or consolidation with another person,
other than a merger or consolidation in which the holders of the Company's
voting securities issued and outstanding immediately before such merger or
consolidation continue to hold voting securities in the surviving or resulting
corporation (in the same relative proportions to each other as existed before
such event) comprising 80 percent or more of the voting power for all purposes
of the surviving or resulting corporation; or (d) the approval by the
shareholders of the Company of a transfer of substantially all of the assets of
the Company to another person other than a transfer to a transferee, 80 percent
or more of the voting power of which is owned or controlled by the Company or
by the holders of the Company's voting securities issued and outstanding
immediately before such transfer in the same relative proportions to each other
as existed before such event.
The Committee may, in its sole discretion and upon such terms and
conditions as it shall determine at or after the date of grant, permit the
exercise price of an Option to be paid in cash, by the tender to the Company of
Common Shares owned by the Grantee or by a combination thereof. If the
Committee does not make such determination, the exercise price must be paid in
cash, by certified or cashier's check, wire transfer or the reduction of a debt
owed by the Company to the Holder. Common Shares may not be delivered to the
Company as payment for the exercise of an Option if such shares have been owned
by the Holder (together with his or her decedent or testator) for less than six
months or if such shares were acquired upon the exercise of an incentive stock
option and their disposition would be taxable.
PROVISIONS APPLICABLE TO ALL OPTIONS
The maximum number of Common Shares with respect to which Options may be
granted during any fiscal year of the Company to any employee shall be 500,000.
The Committee may permit the voluntary surrender of all or a portion of any
Option to be conditioned upon the granting to the Holder of a new Option for
the same or a different number of shares as the Option surrendered, or may
require such voluntary surrender as a condition precedent to a grant of a new
Option to such Holder. Subject to the other provisions of the Plan, such new
Option shall be exercisable at the price, during the period and on such other
terms and conditions as are specified by the Committee at the time of the grant
of the new Option. The Committee may grant Options having terms and conditions
which vary from those specified in the Plan if such Options are granted in
substitution for, or in connection with the assumption of, existing options
granted by another business entity and assumed or otherwise agreed to be
provided for by the Company pursuant to a transaction involving a merger or
consolidation of or acquisition of substantially all of the assets or stock of
another business entity that is not a subsidiary of the Company prior to such
acquisition. The Committee, subject to the written consent of the Holder where
the action impairs or adversely alters the rights of the Holder, has the right
at any time after the date of grant of any Option to modify its terms.
If the Company merges or consolidates with or sells substantially all of
its assets to a person that was not one of its affiliates before such
transaction, or any such unaffiliated person or corporation has publicly
announced a tender offer to purchase more than 20 percent of the outstanding
voting securities of the Company, the Committee, in its discretion, may provide
that, for a period of 30 days not extending beyond the ten year period referred
to in the description of Options above from the date of execution of the
acquisition agreement in final definitive form or the announcement of such
offer, notwithstanding the provisions of any Option, any Option may be
exercised in whole or in part during such 30-day period or that upon the
termination of such 30-day period any such Option shall expire and be null and
void.
DISABILITY
If a Grantee who is an employee with the Company is absent from work
because of a physical or mental disability, such Grantee will not be considered
to have ended his or her employment relationship with the Company for purposes
of the Plan while the Grantee has that disability, unless the Grantee resigns
or the Committee decides otherwise.
-6-
10
TRANSFER RESTRICTIONS
No Option or other benefit under the Plan may be sold, pledged or
otherwise transferred other than by will or the laws of descent and
distribution; and no Option may be exercised during the life of the Grantee to
whom it was granted except by such Grantee.
Section 16 of the Securities Exchange Act of 1934 and Rule 144 of the
Securities Act of 1933 impose restrictions on the ability of certain Company
insiders to resell Common Shares acquired upon the exercise of an Option.
TAXATION
HOLDERS SHOULD CONSULT THEIR INDIVIDUAL TAX ADVISERS BEFORE EXERCISING
ANY OPTION OR DISPOSING OF ANY SHARES ACQUIRED ON THE EXERCISE OF AN
OPTION.
Options will not be incentive stock options under the Code. Holders will
not recognize taxable income upon the grant of an Option. Upon exercise of an
Option, the Holder will realize ordinary income to the extent that the fair
market value of the Common Shares purchased on the date of exercise exceeds the
exercise price. The Holder's basis for determining capital gain or capital loss
upon sale of the shares will be the higher of their fair market value on the
date of exercise and the exercise price. The Company will be entitled to a
deduction equal to the ordinary compensation income realized by the Holder upon
the exercise of the Options.
Awards of Options are intended to be performance-based compensation that
will comply with the requirements of Code Section 162(m) and the regulations
thereunder. If the Plan complies with such law and regulations and the Plan
continues to be in compliance, amounts deductible by the Company upon the
payment of Options which qualify as performance-based compensation will not be
limited by the cap on the deductibility of compensation paid to certain
executive officers of public corporations which exceeds $1,000,000. Because
Section 162(m) is a new provision of the Code, compliance may depend upon
factors, such as relationships between the Company and the members of the
Compensation Committee, which are presently unforeseeable. No assurance can be
given that the Company will remain in compliance with these rules or that
non-compliance will not cause amounts payable under the Plan to become
non-deductible.
PLAN BENEFITS
No grants of Options have yet been made and it is unlikely that any will
be made to current employees in 1996. Further, grants of Options to employees
are discretionary with the Committee and are, therefore, not currently
determinable. See "Compensation of Management" for certain information as to
grants of Options under other Company plans made in previous fiscal years.
VOTE REQUIRED
The affirmative vote of the holders of a majority of the Common Shares
present, or represented, and entitled to vote at the Annual Meeting will be
required to approve the Plan. See "General Information - Tabulation."
BOARD RECOMMENDATION
THE BOARD UNANIMOUSLY RECOMMENDS A VOTE FOR THE APPROVAL OF THE 1996
OFFICERS' STOCK OPTION PLAN.
-7-
11
SECURITY OWNERSHIP OF PRINCIPAL SHAREHOLDERS,
DIRECTORS, NOMINEES AND EXECUTIVE OFFICERS
The following table sets forth, as of March 3, 1996, certain information
with respect to the beneficial ownership of Common Shares by (i) each person
known to the Company to be the beneficial owner of more than five percent of
the outstanding Common Shares, (ii) each director or nominee for director of
the Company, (iii) each of the Named Executives, and (iv) the Company's
directors and executive officers as a group.
NUMBER OF SHARES
SHAREHOLDER BENEFICIALLY OWNED(a) PERCENT OF CLASS
G. Arthur Seelbinder (b) 838,576 (c)(d) 11.7%
Glenn W. Cockburn 280,778 (c)(d) 3.9%
Henry R. Hillenmeyer 8,200 (c)(e)(f) (g)
David L. Hobson 61,874 (c)(e) (g)
David T. Kollat 117,944 (c)(e) 1.6%
Robin V. Holderman 22,518 (c)(e) (g)
Joseph E. Madigan 31,908 (c)(h) (g)
Margaret T. Monaco 4,200 (c) (g)
Phillip L. Pritchard 131,910 (c)(d) 1.8%
All directors and executive 1,509,836 (c)(d)(e) 21.1%
officers as a group
(11 persons)
- -----------------
<FN>
(a) Unless otherwise indicated, the beneficial owner has sole voting and dispositive power over these shares subject to the
spousal rights, if any, of the spouses of those beneficial owners who have spouses.
(b) G. Arthur Seelbinder's address is c/o the Company, 5500 Village Boulevard, West Palm Beach, Florida 33407.
(c) Includes Common Shares subject to stock options outstanding and exercisable as of March 3, 1996: for Mr. Seelbinder, 95,013
Common Shares; for Mr. Cockburn, 75,934 Common Shares; for Mr. Hobson, 19,442 Common Shares; for Mr. Holderman, 20,43 6 Common
Shares; for Mr. Kollat, 44,312 Common Shares; for Mr. Madigan, 29,244 Common Shares; for Mr. Hillenmeyer, 1,200 Common Shares;
for Mr. Pritchard, 37,500 Common Shares; for Ms. Monaco, 1,200 Common Shares; and for all directors and executive officers as a
group, 325,899 Common Shares.
(d) Includes Common Shares beneficially owned through the ESOP: for Mr. Cockburn, 4,843 Common Shares; for Mr. Seelbinder,
5,441 Common Shares; for Mr. Pritchard, six Common Shares; and for all directors and executive officers as a group, 12,505
Common Shares.
(e) The ESOP holds approximately 312,500 Common Shares, constituting approximately 4.4 percent of the outstanding Common Shares
as of March 3, 1996. Margaret A. Epperson, Secretary and Treasurer of the Company, is the trustee of the ESOP. Under certain
circumstances, Ms. Epperson has investment power over Common Shares held by the ESOP and may, to such extent, be deemed the
beneficial owner of such shares. Messrs. Kollat, Hobson, Hillenmeyer and Holderman, as members of the Compensation Committee,
have shared voting and, in certain circumstances, investment power over unallocated Common Shares held by the ESOP and may, to
such extent, be deemed the beneficial owners of such shares. Messrs. Kollat, Hobson, Hillenmeyer and Holderman disclaim
beneficial ownership of all Common Shares held by the ESOP.
(f) Includes 3,000 Common Shares owned of record by his spouse and children, as to which beneficial ownership is disclaimed.
(g) Less than one percent.
(h) Includes 1,332 Common Shares as to which he shares voting and investment power.
-8-
12
COMPENSATION OF MANAGEMENT
SUMMARY COMPENSATION TABLE
The following table sets forth certain information concerning the annual
and long term compensation of the chief executive officer of the Company and
the other executive officers whose total annual salary and bonus exceeded
$100,000 during the last fiscal year (the "Named Executives") for the last
three fiscal years.
Long Term
Compensation
Awards
----------
Securities
Annual Compensation Underlying
Name and -------------------- Options All Other
Principal Position Year Salary Bonus (shares) Compensation(a)
------------------ ---- ------ ----- ----------- ---------------
G. Arthur Seelbinder 1995 $175,000 $314,606 0 $ -0-
Chairman of the Board - 1994 175,000 31,719 246,723(b) 1,830
Chief Executive Officer 1993 175,000 232,662 125,000 4,635
Phillip L. Pritchard 1995 150,000 105,000 0 -0-
President - Chief 1994(c) 2,885 -0- 150,000 35
Operating Officer
Glenn W. Cockburn 1995 125,000 95,250 0 40,262(d)
Senior Vice 1994 125,000 9,375 90,414(e) 1,778
President - Operations 1993 125,000 57,875 35,000 4,635
- -----------------
<FN>
(a) The amounts listed for 1993 and 1994 are allocations to the accounts of each Named Executive in the ESOP, which is an
employee stock ownership plan under the Code. The allocation for 1995 has not been made. The amounts shown for 1994 and 1993
represent Common Shares allocated to the accounts of each Named Executive as of the end of each such year. Such allocations
were made during the next year. Common Shares we valued at $6.00 at the end of 1994 and $12.88 at the end of 1993. The
Company may, in its sole discretion, make contributions to the ESOP in the form of cash or Common Shares. These
contributions and forfeitures of unvested accounts are allocated to the individual account of every employee of the Company
who is age 21 and employed on December 31 of each year in proportion to such employee's relative compensation for the year.
The accounts become 20 percent vested after three years of employment increasing to 100 percent vested after seven years of
employment. Upon termination of employment, the vested amount of his account is delivered to the terminated employee.
(b) This represents a grant made to Mr. Seelbinder on November 14, 1994, which grant was conditioned upon the surrender of an
option to purchase 125,000 Common Shares granted on January 14, 1994, an option to purchase 125,000 shares granted on
January 18, 1993 and an option to purchase 90,000 shares granted on October 14, 1991.
(c) Hired December 5, 1994.
(d) This represents a one-time moving allowance in connection with the relocation of the Company's headquarters from Columbus,
Ohio to West Palm Beach, Florida.
(e) This represents a grant made to Mr. Cockburn on November 14, 1994, which grant was conditioned upon the surrender of an
option to purchase 35,000 Common Shares granted on January 14, 1994, an option to purchase 35,000 shares granted on
January 18, 1993 and an option to purchase 50,000 shares granted on October 14, 1991.
-9-
13
FISCAL YEAR-END STOCK OPTION VALUES
The following table sets forth certain information concerning the exercise
of stock options by the Named Executives during the last fiscal year and the
number and value of unexercised stock options held by each of them at the end
thereof.
Number of Securities Underlyiny Unexercised Value of Unexercised In the-Money Options at
Options at Fiscal Year-End Fiscal Year-End
Name (Exercisable/Unexercisable) (Exercisable/Unexercisable)
------ --------------------------- ---------------------------
G. Arthur Seelbinder 95,013/185,042 $527,225/$878,950
Glenn W. Cockburn 75,934/67,810 $466,547/$322,098
Phillip L. Pritchard 37,500/112,500 $173,438/$520,313
COMMON SHARE PERFORMANCE
The following graph shows the yearly percentage change in the cumulative
total return to holders of Common Shares, assuming dividend reinvestment, and
the cumulative total return, assuming dividend reinvestment, of the Russell
2000 Index and the Value Line Restaurant Industry Index since the market close
on the last trading day before the beginning of the Company's fifth preceding
fiscal year (1991), through and including the end of the Company's last
completed fiscal year (1995). The Russell 2000 Index is a capitalization
weighted index of domestic equities traded on The New York and American Stock
Exchanges and the Nasdaq National Market which excludes the 1,000 largest
capitalization equities of the 3,000 such equities. Common Shares are traded on
The New York Stock Exchange and fit within the Russell 2000 Index definition.
The Value Line Restaurant Industry Index is published in the Value Line
Industry Review. The graph is based upon an assumed investment of $100 in each
of Common Shares, the Russell 2000 Index and the Value Line Restaurant Industry
Index on the last trading day before the beginning of the Company's fifth
preceding fiscal year.
[FIGURE]
Name Begin 1991 1992 1993 1994 1995
- ----- ------- ------- ------- ------- ------- -------
Cooker Restaurant Corporation $100.00 $388.95 $598.12 $346.96 $162.38 $306.45
Russell 2000 Index $100.00 $146.05 $172.94 $205.64 $201.56 $258.89
Restaurants $100.00 $139.25 $175.77 $207.74 $193.56 $268.61
COMPENSATION COMMITTEE REPORT ON EXECUTIVE COMPENSATION
The primary purpose of the Company's executive compensation system as
set forth in the Company's Long Range Strategic Plan for the Fiscal Years
1996 through 2000, is to promote, support and reward exceptional growth and
premium profitability and thereby to maximize the value of the Company to
its shareholders.
-10-
14
The Company's executive compensation system consists of three components:
salary and fringe benefits, cash bonus payments and stock options. All of the
Named Executives, including the Chief Executive Officer, are compensated under
this system which is administered by the Compensation Committee.
Salary and fringe benefits (e.g., group health and life insurance, ESOP)
are intended to be no higher than the median of the base salaries and benefits
paid by comparable restaurant companies. The Committee's objective is to
minimize this component and increases in it so as to minimize fixed costs and
break-even levels. Base salaries are reviewed and adjusted by the Committee
based upon management's recommendations annually. The Committee's review
includes a review of salaries paid by comparable restaurant companies to
comparable officers, including the chief executive officer, as shown in their
proxy statements and by a trade association survey. These companies consist of
publicly-traded full-service restaurants in the casual dining segment of the
restaurant industry.
Cash bonus payments are a function of the Company's incentive bonus plan,
which is administered by the Compensation Committee. The bonuses payable under
the incentive bonus plan are determined by the multiplication of three factors:
the individual executive's base salary during the period of determination,
which is usually one-half of a fiscal year, the bonus percentage amount set for
each executive by the Compensation Committee at the same time that his base
salary is set, and the par percentage of the Company as a whole for the period
of determination. The par percentage of the Company is determined by the
Compensation Committee as follows: at the beginning of each fiscal half-year
period, management submits its operating budget for that half-year to the
Committee. The pre-tax net operating income (without ESOP accruals) of the
Company shown in the budget approved by the Committee becomes 100 percent of
par. At the beginning of each half-year, the Compensation Committee establishes
increments by which the par percentage is increased or decreased if the actual
pre-tax net operating income achieved for the half-year exceeds or falls short
of the budgeted amount. At the end of each half-year, the Compensation
Committee reviews the Company's financial performance for that half-year and
determines the par percentage, which determination may include such adjustments
as the Committee deems advisable. The determination of cash bonus is a
mechanical exercise after the determination of the par percentage. Thus, if an
executive's annual base salary is $80,000, his bonus percentage is 35 percent
of base salary and the Company's pre-tax net operating income for the half-year
exceeded budget by a sufficient amount so that the Compensation Committee set
the percentage payout at 125 percent of par, the executive's bonus for the
fiscal half-year would be 1/2 x $80,000 x 35 percent x 125 percent or $17,500.
The sum of salary and cash bonus payments at par should raise the executive's
total compensation to the third quartile of total compensation paid by
comparable restaurant companies to comparable officers. The incentive bonus
plan has been operated by the Committee since the Company's initial public
offering in 1989. During that time, par percentages have varied from a low of
zero percent to a high of 154 percent. The cumulative average par percentage
payout under the incentive bonus plan through the end of fiscal year 1995 is
95.8 percent.
The final element of the Company's executive compensation system is the
grant of stock options. The Compensation Committee grants options to the
executives periodically under the Company's Employee Stock Option Plans which
are administered by the Compensation Committee. Options generally have a ten
year term, become exercisable as to 25 percent of the grant on each of the
first four anniversaries of the date of grant (subject to change in control
provisions discussed below under "Change in Control Arrangements"), lapse after
termination of employment and have an exercise price equal to the market price
of Common Shares on the date of grant. Assuming a constant price to earnings
ratio, stock options, like cash bonus payments, reward profitability.
Additionally, since profitable earnings growth should raise the price to
earnings ratio above the Company's competitors, stock options should reward
growth and the commensurate increase in the Company's value to its
shareholders.
The addition of stock options to the compensation system should raise the
Company's compensation levels provided to its executives to a superior level in
the marketplace which should allow the Company to attract and retain superior
talent. At the same time, the Company and its shareholders are protected by the
large variable amount of compensation which is paid only if superior results
are achieved and by the nature of the incentives to maximize income and growth
built into the system.
Under Section 162(m) of the Code, compensation paid by the Company to a
Named Executive which is in excess of $1,000,000 in a year will be
nondeductible by the Company for purposes of determining its federal taxable
income unless such compensation is paid under a performance-based plan which is
approved by the shareholders of the Company. Under the Internal Revenue Service
regulations promulgated under Section 162(m), the Company's
-11-
15
1988 and 1992 employee stock option plans and the 1996 Officers' Stock Option
Plan (see "Approval of 1996 Officers' Stock Option Plan") should be deemed to
be performance-based compensation plans and amounts realized by the Named
Executives under such plans should continue to be deductible by the Company.
Because of the favorable treatment of the Company's employee stock option plans
and the remoteness of the possibility that base compensation and cash bonus
levels will exceed $1,000,000 during fiscal 1996 and the years thereafter, the
Committee did not consider the impact of Section 162(m) on its decisions
concerning compensation.
Compensation Committee: David T. Kollat (Chairman), Henry R. Hillenmeyer,
David L. Hobson and Robin V. Holderman.
CHANGE IN CONTROL ARRANGEMENTS
The Compensation Committee has authorized the Company to enter into
contingent employment agreements with the present and future Chairman of the
Board, President, Vice President, Secretary or Treasurer of the Company. These
employment agreements will be effective only after a change in control of the
Company has occurred. A change in control includes (a) the acquisition of 20
percent or more of the Company's Common Shares without the prior approval of
the Board of Directors, (b) a majority of the directors elected at any meeting
of shareholders being persons who were not nominated by the Company's then
current Board of Directors, or (c) any merger, consolidation or transfer of
substantially all of the Company's assets without approval by the Board of
Directors. Furthermore, these agreements become effective only if the Company
had a ten percent return on assets and 15 percent earnings per share growth
during the year preceding the year during which a change in control occurred.
If a change in control occurs and the Company has met the profitability and
growth targets set forth in the agreements, the employees who were party to the
agreements will be employed by the Company for at least five years after the
change in control with authority, responsibility and compensation not less than
they had before the change in control. The agreements provide that, while the
employees are employed by the Company after a change in control, they will not
compete with the Company and will protect the Company's confidential
information and intellectual property. If an employee's employment is
terminated by the Company without cause (defined for this purpose to include
willful failure to perform material employment obligations, acts of deliberate
dishonesty involving the business of the Company or conviction of a felony
involving the business of the Company, as determined by the Board of Directors
after notice, opportunity to cure and a hearing), or if the employee resigns
because he has determined in good faith that his authority, responsibility or
compensation has been diminished, the Company must pay a severance payment
equal to the maximum amount payable under Section 280G of the Code, which is
generally three times the employee's average compensation over the previous
five years. Under the agreements, the Company must bear all costs and legal
fees associated with the agreement's enforcement by the employee and indemnify
the employee against all claims by third parties or the Company unless the
employee has been determined to be liable to the Company in a derivative action
and a court refuses to grant him indemnification. The agreements may be
canceled by the Board of Directors at any time before a change in control has
occurred. To date, the Company has entered into contingent employment
agreements with Messrs. Seelbinder, Pritchard, Cockburn and Sevig, and Margaret
A. Epperson.
The Company's stock option plans each contain a provision providing that
each option granted under the plan will become immediately exercisable as to
100 percent of the Common Shares subject to such option upon any change in
control of the Company. A change in control is defined under the plans to
include (a) the acquisition of 20 percent or more of the Company's Common
Shares without the prior approval of the Board of Directors, (b) a majority of
the directors elected in any annual meeting of shareholders being persons who
are not nominated by the Company's then current Board of Directors, or (c) any
merger, consolidation or transfer of substantially all of the Company's assets
without approval by the Board of Directors.
COMPENSATION OF NONMANAGEMENT DIRECTORS
In 1995, each director of the Company who was not an employee of the
Company received $1,200 per quarter, $300 per board meeting attended, and $300
per committee meeting attended as compensation for his services as a director.
For fiscal 1996, the amounts have been increased to $2,200 per quarter and $500
per board or committee meeting attended. In fiscal 1995, the Company paid
$43,466.60 to 22 Inc. (a consulting company of which David T. Kollat is
Chairman) as compensation for consulting services performed for the Company.
David L. Hobson, who is a member of the United States House of Representatives,
is precluded from receiving any compensation
-12-
16
from the Company for his services as a director by the rules of the House and
has waived the payment of all such compensation.
Each director of the Company who is not an employee is eligible to receive
options under the 1992 Directors Plan. Only nonincentive options may be granted
under the Directors Plan. The Directors Plan provides that options on a total
of 24,000 shares will be granted at the time of the annual meeting of
shareholders to the nonemployee directors who attended 75 percent of the
meetings of the Board of Directors held since the previous annual meeting. The
options will be allocated among the eligible directors equally and will be
exercisable at a price of 100 percent of the value of the Common Shares on the
date of grant. Each option will become exercisable as to 25 percent of the
shares which are subject to the option on completion of each full year of
directorship after the grant and will terminate after ten years and one day, 90
days after termination of directorship due to death or disability or 30 days
after any other termination of directorship. Payment for Common Shares
purchased upon exercise of an option must be made in full in cash at the time
of exercise.
CERTAIN TRANSACTIONS
During the first quarter of 1994, the Board of Directors approved a
guaranty by the Company of a loan of $5,000,000 to G. Arthur Seelbinder, the
Chairman of the Board, from First Union National Bank of Tennessee. The loan
bore interest at such Bank's prime rate plus 1/4 percent, had an initial term
of 18 months and was secured by a pledge of 570,000 Common Shares (owned by the
Chairman) to the Bank. In the third quarter of 1995, the loan was acquired by
NationsBank of Tennessee and its maturity was extended for an additional 24
months. The guaranty provides that the Bank will sell the pledged shares and
apply the proceeds thereof to the loan prior to calling on the Company for its
guaranty. At March 3, 1996, the undiscounted fair market value of the pledged
shares was approximately $7,340,000. The loan is scheduled to mature in the
third quarter of 1997. The guaranty secures the loan until it is repaid or
refinanced without a guaranty. The Company expects that the Chairman will repay
or refinance the loan before its presently scheduled maturity. If the loan is
not so repaid or refinanced, the Company would fund any obligation it incurs
under the terms of its guaranty from additional borrowings under its line of
credit. The Company does not believe that it will be required to make any
material payment under the guaranty in 1996; however there can be no assurance
that the loan will be repaid or refinanced on terms that will not result in
continuing the guaranty or in a material payment.
Mr. Seelbinder paid a guaranty fee of 1/4 percent of the principal amount
of the loan guaranteed to the Company at the time the loan was guaranteed and
will also pay such fee on each anniversary of the guaranty as long as it is
outstanding. The loan was refinanced in part because the Board of Directors
determined that the transfer of the indebtedness from the First Union National
Bank of Tennessee to NationsBank of Tennessee would be in the best interests of
the Company, as guarantor of such indebtedness, in that it would reduce the
conflict of interest between First Union's role as a lender to the Company and
its role as a lender to one of the Company's officers and reduce the
possibility that First Union might sacrifice the Company's interests in an
attempt to protect its position on the loan to Mr. Seelbinder. Because of the
Company's request that the loan be refinanced, it was determined by the Board
of Directors that the costs incurred by Mr. Seelbinder are properly chargeable
to the Company and the Company paid or reimbursed Mr. Seelbinder approximately
$42,000 for the costs incurred in such refinancing.
INDEPENDENT ACCOUNTANTS
Price Waterhouse LLP served as the Company's independent accountants for
fiscal year 1995 which ended December 31, 1995. At the suggestion of
management, the Audit Committee has recommended the retention of Price
Waterhouse LLP as the Company's independent accountants for the fiscal year
1996.
A representative of Price Waterhouse LLP has been invited and is expected
to be present at the Annual Meeting. The representative will have an
opportunity to make a statement if he so desires and is expected to be
available to respond to appropriate questions of shareholders.
-13-
17
CERTAIN FILINGS
In 1995, two officers of the Company were late in filing reports required
by Section 16(a) of the Securities Exchange Act of 1934. David C. Sevig, the
Vice-President and Chief Financial Officer of the Company, filed a report 13
days late reporting his election as an officer of the Company as a result of
miscommunication with the Company's outside counsel responsible for making the
filing. Mr. Sevig filed an additional report four days late relating to two
stock purchases. Margaret A. Epperson, the Secretary/Treasurer of the Company,
filed a report relating to two exercises of stock options and one sale of stock
one day late. The late filings may have been the result of the Company's
concurrent relocation to Florida from Ohio.
OTHER BUSINESS
The Board of Directors does not intend to present, and has no knowledge
that others will present, any other business at the meeting. If, however, any
other matters are properly brought before the meeting, it is intended that the
persons named in the enclosed proxy will vote the shares represented thereby in
accordance with their best judgment.
COST OF SOLICITATION OF PROXIES
The cost of this solicitation will be paid by the Company. The Company has
retained Corporate Investor Communications, Inc. ("CIC") to distribute proxy
materials and solicit proxies in connection with the Annual Meeting. The
Company will pay CIC $4,000 plus $3.00 per shareholder contacted plus
reasonable out-of-pocket expenses for such activities. The Company will
reimburse CIC for all printing costs, postage and freight charges incurred in
connection with the delivery of the Company's proxy materials. In addition to
the solicitation of proxies by mail, CIC may solicit proxies personally or by
telephone. The Company may request persons holding shares in their names for
others to forward soliciting materials to their principals to obtain
authorization for the execution of proxies, and the Company will reimburse such
persons for their expenses in so doing.
SHAREHOLDER PROPOSALS
A shareholder proposal intended for inclusion in the proxy statement and
form of proxy for the Annual Meeting of Shareholders of the Company to be held
in 1997 must be received by the Company before November 15, 1996, at its
offices at 5500 Village Boulevard, West Palm Beach, Florida 33407, Attention:
Secretary.
-14-
18
APPENDIX A
COOKER RESTAURANT CORPORATION
1996 OFFICERS' STOCK OPTION PLAN
-----------------------------------------
APRIL 22, 1996
------------------------------------------
PREAMBLE:
1. COOKER RESTAURANT CORPORATION, an Ohio corporation (the "Company"),
by means of this 1996 Officers' Stock Option Plan (the "Plan"), desires to
attract and retain capable officers and employee-directors and to provide them
with long term incentives to continue their services to the Company, to
maximize the value of the Company to its shareholders and to acquire a
continuing ownership interest in the Company.
2. The Company has determined that the foregoing objectives will be
promoted by granting Options (as hereinafter defined) under this Plan to
certain of its officers and employee-directors, pursuant to this Plan.
TERMS:
ARTICLE 1. DEFINITIONS.
Section 1.1. General. Certain words and phrases used in this Plan
shall have the meanings given to them below in this section:
"Board of Directors" means the board of directors of the Company.
"Change in Control" means (a) the acquisition by any person (defined
for the purposes of this definition to mean any person within the meaning of
Section 13(d) of the Exchange Act), other than the Company or an employee
benefit plan created by the Board of Directors 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 SEC under
Section 13(d) of the Exchange Act) of securities issued by the Company having
20% or more of the voting power of all the voting securities issued by the
Company in the election of Directors at the next meeting of the holders of
voting securities to be held for such purpose if such person acquired such
beneficial ownership without the prior consent of the Board of Directors; (b)
the election of a majority of the Directors elected at any meeting of the
holders of voting securities of the Company who are persons who were not
nominated for such election by the Board of Directors or a duly constituted
committee of the Board of Directors having authority in such matters; (c) the
approval by the shareholders of the Company of a merger or consolidation with
another person, unless the Board of Directors adopts a resolution, before the
Company enters into any agreement for such merger or consolidation, determining
that it is not a Change in Control; or (d) the approval by the shareholders of
the Company of a transfer of substantially all of the assets of the Company to
another person, unless the Board of Directors adopts a resolution, before the
Company enters into any agreement for such transfer, determining that it is not
a Change in Control.
"Code" means the Internal Revenue Code of 1986 and the regulations
thereunder, as now in effect or hereafter amended.
"Committee" means the Committee of the Board of Directors that
administers the Plan under Section 2.1 below.
19
"Common Shares" or "Shares" means the common shares, without par
value, of the Company.
"Date of Grant" means the date an Option is first granted.
"Director" means a member of the Board of Directors.
"Effective Date" means the date this Plan is first adopted by the
Board of Directors.
"Employee" means any common law employee of an Employer.
"Employee-Director" means an Employee who is also a Director.
"Employer" means the Company or any Parent or Subsidiary of the
Company which employs a given Employee.
"Exchange Act" means the Securities Exchange Act of 1934 and the
regulations thereunder, as now in effect or hereafter amended.
"Exercise Price" means, with respect to an Option, the amount of
consideration that must be delivered to the Company in order to purchase a
single Share thereunder.
"Fair Market Value of a Share" means the amount determined to be the
fair market value of a single Share by the Committee based upon the trading
price of the Shares, their offering price in public and private offerings by
the Company and such other factors as it deems relevant. In the absence of such
a determination, the Fair Market Value of a Share shall be deemed to be (a) if
the Shares are listed or admitted to trading on a national securities exchange
or The Nasdaq National Market, the per Share closing price regular way on the
principal national securities exchange or The Nasdaq National Market on which
the 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 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 The Nasdaq
Stock Market or if the Shares are not then quoted by The Nasdaq Stock Market as
furnished by any market maker selected from time to time by the Company for
that purpose.
"Grantee" means any Participant to whom an Option has been granted.
"Holder" means any Grantee who holds a valid Option and any heir or
legal representative to whom such Grantee's Option has been transferred by will
or the laws of descent and distribution.
"Incentive Stock Option" means a Stock Option intended to comply with
the terms and conditions set forth in Section 422 of the Code.
"Nonqualified Option" means a Stock Option other than an Incentive
Stock Option.
"Officer" means an Employee who is an officer of the Company as
defined in 17 C.F.R. Section 240.16a-1(f) as now in effect or hereafter
amended.
"Option" or "Stock Option" means a right granted under Article 5 of
the Plan to a Grantee to purchase a stated number of Shares.
"Option Certificate" means a certificate of the Company evidencing an
Option substantially in the form attached hereto.
"Parent" means a parent of a given corporation as such term is defined
in Section 424(e) of the Code.
"Participant" means a person who is eligible to receive an Option
under the Plan.
"Plan" means this Plan as it may be amended or restated from time to
time.
"Rule 16b-3" means Rule 16b-3 (17 C.F.R. Section 240.16b-3)
promulgated under Section 16(b) of the Exchange Act as now in effect or
hereafter amended.
-2-
20
"SEC" means the Securities and Exchange Commission.
"Subsidiary" means a subsidiary of a given corporation as such term is
defined in Section 424(f) of the Code.
"Termination without cause" means a termination by an Employer of the
employment of a Grantee with the Employer that is not for cause and is not
occasioned by the resignation, death or disability of the Grantee.
Section 1.2. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles.
Section 1.3. Effect of Definitions. The definitions set forth in
Section 1.1 above shall apply equally to the singular, plural, adjectival,
adverbial and other forms of any of the words and phrases defined regardless of
whether they are capitalized.
ARTICLE 2. ADMINISTRATION.
Section 2.1. Committee. The Plan shall be administered by a committee
of the Board of Directors consisting of two or more Directors, each of whom is
a "disinterested person" as described in paragraph (C)(2)(i) of Rule 16b-3 and
is an "outside director" as described in Code Section 162(m) and the
regulations thereunder. Unless the Board of Directors designates another of its
committees to administer the Plan, the Plan shall be administered by a
committee consisting of those members of the Compensation Committee of the
Board of Directors who are disinterested persons and are outside directors,
but, if the Compensation Committee is abolished or its membership does not
contain two persons who comply with the requirements of the first sentence of
this Section 2.1, the Board of Directors shall either reconstitute the
Compensation Committee in compliance with, or create another Committee that
complies with, the requirements of the first sentence of this Section 2.1 to
administer the Plan.
Section 2.2. Authority. Subject to the express provisions of the Plan
and in addition to the powers granted by other sections of the Plan, the
Committee has the authority, in its discretion, to (a) determine the Grantees,
grant Options and determine their timing, pricing and amount; (b) define,
prescribe, amend and rescind rules, regulations, procedures, terms and
conditions relating to the Plan; (c) make all other determinations necessary or
advisable for administering the Plan including, but not limited to,
interpreting the Plan, correcting defects, reconciling inconsistencies and
resolving ambiguities; and (d) review and resolve all claims of Officers,
Employee-Directors, Grantees, Holders and Participants. The actions and
determinations of the Committee on matters related to the Plan shall be
conclusive and binding upon the Company and all Officers, Employee-Directors,
Grantees, Holders and Participants.
ARTICLE 3. SHARES.
Section 3.1. Number. The aggregate number of Shares in respect of
which Options may be granted under the Plan shall not exceed fifteen percent
(15%) of the issued and outstanding Shares from time to time, less the number
of Shares subject to then outstanding Options hereunder or options that were
granted to Officers and Employee-Directors under the Company's 1988 Employee
Stock Option Plan, 1992 Employee Stock Option Plan or any other plan or
contract providing for stock options, stock appreciation rights, restricted
stock awards or similar compensatory issuances of Shares to Officers or
Employee-Directors. Such number of Shares is and, from time to time hereafter,
shall be deemed to be reserved for issuance under the Plan out of authorized
but unissued Shares.
Section 3.2. Cancellations. If any Options granted under the Plan are
canceled or terminate or expire for any reason without having been exercised in
full, the Shares related to the unexercised portion of an Option shall be
available again for the purposes of the Plan.
Section 3.3. Anti-Dilution.
(a) If the Shares are split or if a dividend of Shares is paid
on the Shares, the number of Shares on which each then outstanding Option is
based and the number of Shares as to which Options may be granted under this
Plan shall be increased automati-
-3-
21
cally by the ratio between the number of Shares outstanding immediately after
such event and the number of Shares outstanding immediately before such event
and the Exercise Price thereof shall be decreased automatically by the same
ratio. If the Shares are combined into a lesser number of Shares, the number
of Shares for which each then outstanding Option is based and the number of
Shares as to which Options may be granted under the Plan shall be decreased
automatically by such ratio and the Exercise Price thereof shall be increased
automatically by such ratio.
(b) If any other change occurs in the Shares, through
recapitalization, merger, consolidation or exchange of shares or otherwise,
there shall automatically be substituted for each Share subject to an
unexercised Option and each Share available for additional grants of Options,
the number and kind of shares or other securities into which each outstanding
Share was changed, and the Exercise Price shall be increased or decreased
proportionally so that the aggregate Exercise Price for the securities subject
to each Option shall remain the same as immediately before such event. In
addition, the Committee may make such further equitable adjustments in the Plan
and the then outstanding Options as are deemed necessary and appropriate by the
Committee including, but not limited to, changing the number of Shares reserved
under the Plan or covered by outstanding Options, the Exercise Price of
outstanding Options and the vesting conditions of outstanding Options.
Section 3.4. Source. Except as otherwise determined by the Board of
Directors, the Shares issued under the Plan shall be drawn from the Company's
authorized but unissued Shares. However, Shares which are to be delivered under
the Plan may be obtained by the Company from its treasury, by purchases on the
open market or from private sources, as well as by issuing authorized but
unissued Shares. The proceeds of the exercise of any Option shall be general
corporate funds of the Company. No fractional Shares shall be issued or sold
under the Plan nor will any cash payment be made in lieu of fractional Shares.
Section 3.5. Rights of a Shareholder. No Holder or other person
claiming under or through any Holder shall have any right, title or interest in
or to any Shares allocated or reserved under the Plan or subject to any Option
except as to such Shares, if any, for which certificates representing such
Shares have been issued to such Holder.
Section 3.6. Securities Laws. No Option shall be exercised nor shall
any Shares or other securities be issued or transferred pursuant to an Option
unless and until all applicable requirements imposed by federal and state
securities laws and by any stock exchanges upon which the Shares may be listed,
have been fully complied with. As a condition precedent to the exercise of an
Option or the issuance of Shares pursuant to the grant or exercise of an
Option, the Company may require the Holder to take any reasonable action to
meet such requirements including providing undertakings as to the investment
intent of the Holder, accepting transfer restrictions on the Shares issuable
thereunder and providing opinions of counsel, in form and substance acceptable
to the Company, as to the availability of exemptions from such requirements.
ARTICLE 4. ELIGIBILITY.
Only Officers and Employee-Directors who are not members of the
Committee shall be eligible to receive Options under Article 5 below.
ARTICLE 5. STOCK OPTIONS.
Section 5.1. Determinations. The Committee shall determine which
Participants shall be granted Options, the number of Shares for which the
Options may be exercised, the times when they shall receive them and the terms
and conditions of individual Option grants (which need not be identical).
Section 5.2. Exercise Price. The Committee shall determine the
Exercise Price of each Option at the time that it is granted, but in no event
shall the Exercise Price of an Option be less than the Fair Market Value of a
Share on the Date of Grant. If no express determination of the Exercise Price
of an Option is made by the Committee, the Exercise Price thereof is equal to
the Fair Market Value of a Share on the Date of Grant.
Section 5.3. Term. Subject to the rule set forth in the next sentence,
the Committee shall determine the
-4-
22
times when an Option vests and the term during which an Option is exercisable
at the time that it is granted. No Option shall be exercisable after the
expiration of ten years from the Date of Grant. If no express determination of
the times when Options are exercisable is made by the Committee:
(a) each Option shall vest and first become exercisable as to 25% of
the Shares subject to such Option on each of the first four
anniversaries of the Date of Grant provided the Grantee has been an
Employee continuously during the time beginning on the Date of Grant
and ending on the date when such portion vests and first becomes
exercisable; and
(b) each Option shall lapse and cease to be exercisable upon the
earliest of:
(i) ten years after the Date of Grant,
(ii) nine months after the Grantee ceases to be an Employee
because of death or disability,
(iii) three months after the termination without cause of the
Grantee's employment with all Employers, or
(iv) immediately upon termination of the Grantee's employment
with all Employers by the applicable Employers for cause or by
the Grantee's resignation.
Notwithstanding the terms of any Option, all Options that have not previously
been exercised nor lapsed and ceased to be exercisable, shall vest fully and
become exercisable upon the occurrence of any Change in Control if the Grantee
is an Employee at the time of the Change in Control.
Section 5.4. Not Incentive Stock Options. All Options are Nonqualified
Options and no Option shall be treated as an Incentive Stock Option.
Section 5.5. Exercise. An Option shall be exercised by the delivery of
the Option Certificate therefor, with the notice of exercise attached thereto
properly completed and duly executed by the Holder, to the Treasurer of the
Company, together with the aggregate Exercise Price for the number of Shares as
to which the Option is being exercised, after the Option has become exercisable
and before it has ceased to be exercisable. An Option may be exercised as to
less than all of the Shares purchasable thereunder, but not for a fractional
share. No Option may be exercised as to less than 100 Shares unless it is
exercised as to all of the Shares then available thereunder. If an Option is
exercised as to less than all of the Shares purchasable thereunder, a new duly
executed Option Certificate reflecting the decreased number of Shares
exercisable under such Option, but otherwise of the same tenor, shall be
returned to the Holder. The Committee may, in its sole discretion and upon such
terms and conditions as it shall determine at or after the Date of Grant,
permit the Exercise Price to be paid in cash, by the tender to the Company of
Shares owned by the Holder, or by a combination thereof. If the Committee does
not make such determination, the Exercise Price shall be paid in cash. If any
portion of the Exercise Price of an Option is payable in cash, it may be paid
by (a) delivery of a certified or cashier's check payable to the order of the
Company in such amount, (b) wire transfer of immediately available funds to a
bank account designated by the Company or (c) reduction of a debt of the
Company to the Holder. If any portion of the Exercise Price of an Option is
payable in Shares, it may be paid by delivery of certificates representing a
number of Shares having a total fair market value on the date of exercise equal
to or greater than the required amount, duly endorsed for transfer with all
signatures guaranteed by a medallion signature guarantee. If more Shares than
are necessary to pay such Exercise Price based on their fair market value on
the date of exercise are delivered to the Company, it shall return to the
Holder a certificate for the balance of the whole number of Shares and a check
payable to the order of the Holder for any fraction of a Share. Shares may not
be delivered to the Company as payment for the exercise of an Option if such
Shares have been owned by the Holder (together with his or her decedent or
testator) for less than six months or if such Shares were acquired upon the
exercise of an Incentive Stock Option and their disposition would be taxable.
Promptly after an Option is properly exercised, the Company shall issue to the
Holder a certificate representing the Shares purchased thereunder.
-5-
23
Section 5.6. Option Certificate. Promptly after the Date of Grant, the
Company shall duly execute and deliver to the Grantee an Option Certificate
setting forth the terms of the Option. Option Certificates are not negotiable
instruments or securities (as such term is defined in Article 8 of the Uniform
Commercial Code). Lost and destroyed Option Certificates may be replaced
without bond.
Section 5.7. New Hires. A person to whom the Company is offering
employment as an Officer or an Employee-Director may be granted an Option under
this Article 5, but any such grant shall lapse if the person does not
subsequently become an Officer or an Employee-Director pursuant to such offer.
ARTICLE 6. PROVISIONS APPLICABLE TO ALL OPTIONS.
Section 6.1. Maximum Shares. Notwithstanding any other provision of
this Plan, the maximum number of Shares with respect to which Options may be
granted during any fiscal year of the Company to any Employee shall be 500,000.
Section 6.2. Corporate Mergers and Acquisitions. The Committee may
grant Options having terms and conditions which vary from those specified in
the Plan if such Options are granted in substitution for, or in connection with
the assumption of, existing options granted by another business entity and
assumed or otherwise agreed to be provided for by the Company pursuant to or by
reason of a transaction involving a merger or consolidation of or acquisition
of substantially all of the assets or stock of another business entity that is
not a Subsidiary of the Company prior to such acquisition, with or by the
Company or its Subsidiaries.
Section 6.3. Withholding. The Company shall have the right to withhold
from any payments due under any Option or due to any Holder from the Company as
compensation or otherwise the amounts of any federal, state or local
withholding taxes not paid by the Holder at the time of the exercise or vesting
of any Option. If cash payments sufficient to allow for withholding of taxes
are not made at the time of exercise or vesting of an Option, the Holder
exercising such Option shall pay to the Company an amount equal to the
withholding required to be made less the withholding otherwise made in cash or,
if allowed by the Committee in its discretion and pursuant to rules adopted by
the Committee consistent with Section 5.5 above, Shares previously owned by the
Holder. The Company may make such other provisions as it deems appropriate to
withhold any taxes the Company determines are required to be withheld in
connection with the exercise of any Option, including, but not limited to, the
withholding of Shares from an Option upon such terms and conditions as the
Committee may provide. The Company may require the Holder to satisfy any
relevant withholding requirements before issuing Shares or delivering any
Option to the Holder.
Section 6.4. Disability. If a Grantee who is an Employee is absent
from work because of a physical or mental disability, for purposes of the Plan
such Grantee will not be considered to have ended his or her employment
relationship with the Company while such Grantee has that disability, unless he
or she resigns or terminates such relationship or the Committee decides
otherwise.
Section 6.5. Merger of the Company. If the Company merges or
consolidates with or sells substantially all of its assets to a person that was
not one of its affiliates before such transaction, or any such unaffiliated
person or corporation has publicly announced a tender offer to purchase more
than 20% of the outstanding voting securities of the Company, the Committee, in
its discretion, may provide that, for a period of 30 days, not extending
beyond the ten year period referred to in Section 5.3 above, from the date of
execution of the acquisition agreement in final definitive form or the
announcement of such offer, notwithstanding the provisions of any Option, any
Option may be exercised in whole or in part during such 30 day period or that
upon the termination of such 30 day period any such Option shall expire and be
null and void.
Section 6.6. Surrender and Exchange. The Committee may permit the
voluntary surrender of all or a portion of any Option to be conditioned upon
the granting to the Holder of a new Option for the same or a different number
of Shares as the Option surrendered, or may require such voluntary surrender as
a condition precedent to a grant of a new Option to such Holder. Subject to the
provisions of the Plan, such new Option shall be exercisable at the price,
-6-
24
during the period and on such other terms and conditions as are specified by
the Committee at the time the new Option is granted. Upon surrender, the
Option surrendered shall be canceled and the Shares previously subject to it
shall be available for the grant of other Options.
Section 6.7. Acceleration. Notwithstanding anything else in the Plan,
the Committee may, in its sole discretion, at any time or from time to time,
accelerate the time at which any Options mature or vest or waive any provisions
of the Plan relating to the manner of payment or procedures for the exercise or
maturity of any Option. Any such acceleration may be made effective (a) with
respect to one or more or all Holders, (b) with respect to some or all of the
Shares subject to or forming the basis for any Option to any Holder or (c) for
a period of time ending at or before the expiration date of any Option.
Section 6.8. Actions by Committee After Grant. The Committee shall
have, subject to the written consent of the Holder where the action impairs or
adversely alters the rights of the Holder, the right, at any time and from time
to time after the Date of Grant of any Option, to modify the terms of any
Option.
ARTICLE 7. GENERAL PROVISIONS.
Section 7.1. No Right to Employment. Nothing in the Plan or any Option
or any instrument executed pursuant to the Plan will confer upon any Grantee
any right to continue to be employed by or provide services to the Company or
affect the right of the Company to terminate the employment of any Grantee or
its other relationship with any Grantee. Nothing in the Plan or any Option or
any instrument executed pursuant to the Plan will confer upon any Grantee any
right to continue to be a Director of the Company or affect the right of the
shareholders to terminate the directorship of any Grantee.
Section 7.2. Limited Liability. The liability of the Company under
this Plan or in connection with any exercise of any Option is limited to the
obligations expressly set forth in the Plan and in the grant of any Option, and
no term or provision of this Plan nor of any Option shall be construed to
impose any duty, obligation or liability on the Company not expressly set forth
in the Plan or any grant of any Option.
Section 7.3. Assumption of Options. Upon the dissolution or
liquidation of the Company, or upon a reorganization, merger or consolidation
of the Company with one or more other entities as a result of which the Company
is not the surviving entity, or upon a sale of substantially all the assets of
the Company to another entity, any Options outstanding theretofore granted or
sold hereunder must be assumed by the surviving or purchasing entity, with
appropriate adjustments as to the number and kind of shares and price. Nothing
in this Section 7.3 shall be deemed to alter or supersede any provision of the
Plan relating to the vesting or maturity of Options upon a Change in Control.
Section 7.4. No Transfer. No Option or other benefit under the Plan
may be sold, pledged or otherwise transferred other than by will or the laws of
descent and distribution; and no Option may be exercised during the life of the
Grantee to whom it was granted except by such Grantee.
Section 7.5. Expenses. All costs and expenses incurred in connection
with the administration of the Plan including any excise tax imposed upon the
transfer of Shares pursuant to the exercise of an Option shall be borne by the
Company.
Section 7.6. Notices. Notices and other communications required or
permitted to be made under the Plan shall be in writing and shall be deemed to
have been duly given only if personally delivered or if sent by first class
mail addressed (a) if to a Holder, at his or her residence address set forth in
the records of the Company or (b) if to the Company, to its President at its
principal executive office.
Section 7.7. Third Parties. Nothing herein expressed or implied is
intended or shall be construed to give any person other than the Holders any
rights or remedies under this Plan.
Section 7.8. Saturdays, Sundays and Holidays. Where this Plan
authorizes or requires a payment or performance on a Saturday, Sunday or public
holiday, such payment or performance shall be deemed
-7-
25
to be timely if made on the next succeeding business day.
Section 7.9. Rules of Construction. The captions and section numbers
appearing in this Plan are inserted only as a matter of convenience. They do
not define, limit or describe the scope or intent of the provisions of this
Plan. In this Plan words in the singular number include the plural, and in the
plural include the singular; and words of the masculine gender include the
feminine and the neuter and, when the sense so indicates, words of the neuter
gender may refer to any gender.
Section 7.10. Governing Law. The validity, terms, performance and
enforcement of this Plan shall be governed by laws of the State of Ohio that
are applicable to agreements negotiated, executed, delivered and performed
solely in the State of Ohio.
Section 7.11. Effective Date of the Plan. The Plan shall become
effective upon its approval by the affirmative vote of the holders of a
majority of the outstanding Shares present or represented and entitled to vote
at a meeting of the shareholders of the Company. Options may be granted by the
Committee before such approval, but all Options so granted shall be conditioned
on such approval and shall be void if such approval is not given within 12
months after the Effective Date.
Section 7.12. Amendment and Termination. No Option shall be granted
under the Plan more than ten years after the Effective Date. The Board of
Directors may at any time terminate the Plan or make such amendment of the Plan
as it may deem advisable; provided, however, that no amendment shall be
effective without the approval of the shareholders of the Company by the
affirmative vote of the holders of a majority of the outstanding Shares present
or represented and entitled to vote at a meeting of shareholders duly held, if
it were to:
(a) materially increase the benefits accruing to Holders
under the Plan;
(b) materially increase the number of Shares which may be
issued under the Plan; or
(c) materially modify the requirements as to eligibility for
participation in the Plan;
and, further, provided, however, that no amendment or termination of the Plan
shall be effective to alter or impair the rights of a Holder under any Option
granted before the adoption of such amendment or termination by the Board of
Directors, without the written consent of such Holder. No termination or
amendment of this Plan or any Option nor waiver of any right or requirement
under this Plan or any Option shall be binding on the Company unless it is in a
writing duly entered into its records and executed by a duly authorized
Officer.
-8-
26
COOKER RESTAURANT CORPORATION
1996 OFFICERS' STOCK OPTION PLAN
----------------------------------------
OPTION CERTIFICATE
----------------------------------------
The undersigned being duly authorized and acting officers of Cooker
Restaurant Corporation, an Ohio corporation (the "Company"), do hereby certify
that: *PRINT NAME* (the "Grantee") was granted an option (the
"Option") under the Company's 1996 Officers' Stock Option Plan (the "Plan") to
purchase *NUMBER WORDS* (*FIGURES*) Common Shares, without par
value, of the Company (the "Shares") at an exercise price of *NUMBER
WORDS* (*FIGURES*) per share (the "Exercise Price") on _______
___________, 199__ (the "Date of Grant"); this Option shall vest and first
become exercisable as to twenty five percent (25%) of the Shares subject to
this Option on each of the first four anniversaries of the Date of Grant
provided the Grantee has been an Employee continuously during the time
beginning on the Date of Grant and ending on the date when such portion of this
Option first becomes exercisable; this Option shall lapse and cease to be
exercisable upon the earliest of ten (10) years after the Date of Grant, ninety
(90) days after the Grantee ceases to be an Employee because of his death or
disability, or thirty (30) days after the Grantee ceases to be an Employee for
any reason other than his death or disability; this Option is a Nonqualified
Option as defined in the Plan; this Option may be exercised, in whole or in
part (but not as to less than one hundred (100) Shares unless it is exercised
in whole), by the Grantee completing and manually signing the notice of
exercise which is set forth on the reverse side of this certificate and
delivering the same to the treasurer of the Company together with
consideration, in a form acceptable under the Plan, equal to the Exercise Price
times the number of Shares as to which such exercise is made together with any
applicable taxes or withholdings; this Option may not be sold, pledged or
transferred other than by will or the laws of descent and distribution and may
be exercised only by the Grantee; and this Option is subject to the terms of
the Plan, a copy of which will be mailed to the Grantee promptly upon receipt
by the secretary of the Company of the Grantee's request therefor, which are
incorporated herein as if fully set forth.
IN WITNESS WHEREOF, the undersigned have executed this certificate as
of this ____ day of ________________, 199__.
----------------------------------------------- ----------------------------------------------
G. Arthur Seelbinder, Chairman of the Board and Margaret A. Epperson, Secretary and Treasurer
Chief Executive Officer
THIS OPTION CERTIFICATE IS NOT A NEGOTIABLE INSTRUMENT AND MAY
NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN
BY WILL OR THE LAWS OF DESCENT AND DISTRIBUTION.
27
----------------------------------
Notice of Exercise
----------------------------------
The above named Grantee hereby exercises the Option to purchase
__________________ (__________) Common Shares1 and authorizes the Company to
withhold any applicable taxes or withholdings from the Grantee's wages, salary
or bonuses, if the amount of such taxes or withholdings are not delivered to
the Company together with this Notice of Exercise.
-------------------------------------
Must be manually signed by the Grantee,
Signatures by agents or personal
representatives are not acceptable
unless the Grantee has died or is
disabled
This Notice of Exercise must be accompanied by full payment in the form of a
certified or bank check or other consideration acceptable under the Plan.
- ---------------------
* If this Option is exercised as to less than all of the
Option Shares, a new certificate for the unexercised portion of the
Option will be mailed to the Grantee.
-10-
28
COOKER RESTAURANT CORPORATION THIS PROXY IS SOLICITED BY THE BOARD OF DIRECTORS
The undersigned hereby appoints G. Arthur Seelbinder and Margaret A.
Epperson, and each of them, severally, with full power of substitution, as
proxies for the undersigned and hereby authorizes them to represent and to vote,
as designated below, all of the Common Shares, without par value, of Cooker
Restaurant Corporation held of record by the undersigned on March 1, 1996, at
the Annual Meeting of Shareholders to be held on April 22, 1996, or any
adjournment thereof, with all the power the undersigned would possess if present
in person.
THE BOARD OF DIRECTORS RECOMMENDS THE ELECTION OF ALL NOMINEES.
1. TO ELECT AS DIRECTORS THE NOMINEES NAMED BELOW FOR A TERM OF THREE YEARS AND
UNTIL THEIR SUCCESSORS ARE DULY ELECTED AND QUALIFIED.
NOMINEES: Henry R. Hillenmeyer, Margaret T. Monaco, Phillip L. Pritchard
/ / FOR all nominees listed above (except as marked to the contrary)
/ /WITHHOLD AUTHORITY to vote for all nominees listed above
(INSTRUCTIONS: TO WITHHOLD AUTHORITY TO VOTE FOR ANY INDIVIDUAL NOMINEE, STRIKE
A LINE THROUGH THE NOMINEE'S NAME LISTED ABOVE.)
THE BOARD OF DIRECTORS RECOMMENDS THE APPROVAL OF
THE COOKER RESTAURANT CORPORATION 1996 OFFICERS' STOCK OPTION PLAN.
2. TO APPROVE THE COOKER RESTAURANT CORPORATION 1996 OFFICERS' STOCK OPTION
PLAN.
/ / FOR the approval of the Cooker Restaurant Corporation 1996 Officers'
Stock Option Plan
/ / AGAINST the approval of the Cooker Restaurant Corporation 1996
Officers' Stock Option Plan
/ / ABSTAIN from voting regarding the approval of the Cooker Restaurant
Corporation 1996 Officers' Stock Option Plan
(Continued, and to be dated and signed, on the reverse side.)
(Continued from the other side.)
IN THEIR DISCRETION, THE PROXIES ARE AUTHORIZED TO VOTE UPON SUCH OTHER
BUSINESS AS MAY PROPERLY COME BEFORE THE ANNUAL MEETING OF SHAREHOLDERS OR
ANY ADJOURNMENT THEREOF.
THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER DIRECTED
HEREIN BY THE UNDERSIGNED SHAREHOLDER. IF NO DIRECTION IS MADE, THIS PROXY
WILL BE VOTED TO ELECT ALL NOMINEES LISTED ABOVE AND FOR THE APPROVAL OF THE
COOKER RESTAURANT CORPORATION 1996 OFFICERS' STOCK OPTION PLAN.
The undersigned hereby acknowledges receipt with this Proxy of a copy of
the Notice of Annual Meeting and Proxy Statement dated March 15, 1996 and a
copy of the Company's 1995 Annual Report to Shareholders.
Date: , 1996
------------------------------------
Signature
------------------------------------
Signature (if held jointly)
IMPORTANT: Please sign exactly as name or names appear to the left. When
shares are held by joint tenants, both should sign. When signing as attorney,
executor, administrator, trustee or guardian, please give full title as such.
Corporations should sign in their full corporate name by their president or
other authorized officer. If a partnership, please sign in partnership name
by an authorized person.
PLEASE MARK, SIGN, DATE AND RETURN THE PROXY CARD PROMPTLY USING THE ENCLOSED
ENVELOPE.