STOCK OPTION AGREEMENT
PURSUANT TO
SHELLS SEAFOOD RESTAURANTS, INC.
____ STOCK OPTION PLAN
* * *
[INCENTIVE] STOCK OPTION AGREEMENT made as of the __th day of _____,
____, between SHELLS SEAFOOD RESTAURANTS, INC., a Delaware corporation (the
"Company"), and _________________, an employee of the Company or of a subsidiary
of the Company (the "Optionee").
W I T N E S S E T H:
WHEREAS, the Company desires, by affording the Optionee an opportunity
to purchase shares of its Common Stock, $.01 par value per share (the "Common
Stock"), as hereinafter provided, to carry out the purpose of the Company's ____
Stock Option Plan (the "Plan"):
NOW THEREFORE, in consideration of the premises and of the mutual
covenants and agreements hereinafter contained, the parties hereto mutually
covenant and agree as follows:
1. Grant of Option. The Company hereby grants to the Optionee
an [incentive] stock option (the "Option") to purchase all or any part of an
aggregate of ______ shares of Common Stock (such number being subject to
adjustment as provided in Paragraph 6) on the terms and conditions hereinafter
set forth.
2. Purchase Price. The purchase price of the shares of Common
Stock issuable upon exercise of the Option (the "Option Price") shall be $______
per share, which is not less than one hundred percent (100%) of the fair market
value per share of Common Stock on the date hereof. Payment shall be made in
cash, by certified check or in shares of Common Stock in the manner prescribed
in Paragraph 7 hereof.
3. Term of Option. The term of the Option shall be for a
period of ten (10) years from the date hereof, subject to earlier termination as
provided in Paragraph 5. The Option is exercisable during its term only in
accordance with the provisions of Exhibit A attached hereto.
Except as provided in Paragraph 5, the Option may not be exercised
unless, at the time the Option is exercised and at all times from the date it
was granted, the Optionee shall then be and shall have been, an employee of the
Company or any subsidiary.
4. Nontransferability. The Option shall not be transferable
otherwise than by will or the laws of descent and distribution to the extent
provided in Paragraph 5, and the Option may be exercised, during the lifetime of
the Optionee, only by him. More particularly (but without limiting the
generality of the foregoing), the Option may not be assigned, transferred
(except as provided above), pledged or hypothecated in any way, shall not be
assignable by operation of law, and shall not be subject to execution,
attachment or similar process. Any attempted assignment, transfer, pledge,
hypothecation or other disposition of the Option contrary to the provisions
hereof and of the Plan, and the levy of any execution, attachment, or similar
process upon the Option, shall be null and void and without effect; provided,
however, that if the Optionee shall die while in the employ of the Company or
any subsidiary, his estate, personal representative, or beneficiary shall have
the right to exercise the Option to the extent provided in Paragraph 5.
5. Termination of Option. If the Optionee shall cease to be
employed by the Company or any subsidiary for any reason other than death or
disability, then the Option, to the extent that it is exercisable by him at the
time he ceases to be employed by the Company or any subsidiary, and only to the
extent that the Option is exercisable as of such time, may be exercised by him
within three (3) months after such time; provided, however, that the
Compensation and Stock Option Plan Committee may, in its sole discretion,
determine that he has more than three (3) months from the date he ceases to be
employed by the Company or any subsidiary to exercise the Option.
If the Optionee shall cease to be employed by the Company or any
subsidiary as the result of his disability, then the Option, to the extent that
it is exercisable by him at the time he ceases to be employed by the Company or
any subsidiary, and only to the extent that the Option is exercisable as of such
time, may be exercised by him within twelve (12) months after such time.
If the Optionee shall die while in the employ of the Company or any
subsidiary (or within one year of the termination of Optionee by reason of
Optionee's disability), his estate, personal representative, or beneficiary
shall have the right, subject to the provisions of Paragraph 3, to exercise the
Option (to the extent that the Optionee would have been entitled to do so at the
time of his death) at any time within twelve (12) months from the date of his
death.
In the event of the institution of any legal proceedings directed to
the validity of the Plan or the Option, the Company may, in its sole discretion,
and without incurring any liability therefor to the Optionee, terminate the
Option.
6. Changes in Capital Stock. Upon any readjustment or
recapitalization of the Company's capital stock whereby the character of the
Common Stock shall be changed, appropriate adjustments shall be made so that the
capital stock issuable upon exercise of the Option after such readjustment or
recapitalization shall be the substantial equivalent of the Common Stock
issuable upon exercise of the Option. In the case of a merger, sale of assets or
similar transaction which results in a replacement of the Common Stock with
stock of another corporation, the Company will make a reasonable effort, but
shall not be required, to replace any outstanding
Options granted under the Plan with comparable options to purchase the stock of
such other corporation, or will provide for immediate maturity of all
outstanding Options, with all Options not being exercised within the time period
specified by the Board of Directors being terminated.
7. Method of Exercising Option. Subject to the terms and
conditions of this Agreement, the Option may be exercised by written notice to
the Company at its offices at 00000 Xxxxx Xxxx Xxxxx Xxxxxxx, Xxxxx 000, Xxxxx,
Xxxxxxx 00000 (Attention: President). Such notice shall state that the Option is
being exercised thereby and the number of shares of Common Stock in respect of
which it is being exercised. It shall be signed by the person or persons so
exercising the Option and shall be accompanied by payment in full of the Option
Price for such shares of Common Stock in cash, by certified check or in shares
of Common Stock.
If shares of Common Stock are tendered as payment of the Option Price,
the value of such shares shall be their fair market value as of the date of
exercise. If such tender would result in the issuance of fractional shares of
Common Stock, the Company shall instead return the balance in cash or by check
to the Optionee. The Company shall issue, in the name of the person or persons
exercising the Option, and deliver a certificate or certificates representing
such shares as soon as practicable after notice and payment shall be received.
In the event the Option shall be exercised by any person or persons
other than the Optionee, pursuant to Paragraph 5, such notice shall be
accompanied by appropriate proof of the right of such person or persons to
exercise the Option.
The Optionee shall have no rights of a stockholder with respect to
shares of Common Stock to be acquired by the exercise of the Option until a
certificate or certificates representing such shares are issued to him. All
shares of Common Stock purchased upon the exercise of the Option as provided
herein shall be fully paid and non-assessable.
8. General. The Company shall at all times during the term of
the Option reserve and keep available such number of shares of Common Stock as
will be sufficient to satisfy the requirements of this Agreement, shall pay all
original issue taxes, if any, with respect to the issuance of shares of Common
Stock pursuant hereto and all other fees and expenses necessarily incurred by
the Company in connection therewith, and shall, from time to time, use its best
efforts to comply with all laws and regulations which, in the opinion of counsel
for the Company, shall be applicable thereto.
9. Representations of Optionee. The Optionee hereby represents
that he and any related persons or entities, within the meaning of Section
425(d) of the Internal Revenue Code of 1986, do not own as much as ten percent
(10%) of the total combined voting power of all classes of capital stock of the
Company, and in accepting the Option herein granted to him, agrees to the terms
of such Option as of the date hereof.
10. Notices. Each notice relating to this Agreement shall be
in writing and delivered in person or by first class mail, postage prepaid, to
the address as hereinafter provided. Each notice shall be deemed to have been
given on the date it is received. Each notice to the Company shall be addressed
to it at its offices at 00000 Xxxxx Xxxx Xxxxx Xxxxxxx, Xxxxx 000, Xxxxx,
Xxxxxxx 00000 (Attention: President). Each notice to the Optionee or other
person or persons then entitled to exercise the Option shall be addressed to the
Optionee or such other person or persons at the Optionee's last known address.
11. Incorporation of Plan. Notwithstanding the terms and
conditions herein, this Agreement shall be subject to and governed by all the
terms and conditions of the Plan. A copy of the Plan has been delivered to the
Optionee and is hereby incorporated by reference. In the event of any
discrepancy or inconsistency between the terms and conditions of this Agreement
and of the Plan, the terms and conditions of the Plan shall control.
12. Continuance of Employment. The granting of the Option is
in consideration of the Optionee's continuing employment by the Company or any
subsidiary; provided, however, nothing in this Agreement shall confer upon the
Optionee the right to continue in the employ of the Company or any subsidiary or
affect the right of the Company or any subsidiary to terminate the Optionee's
employment at any time in the sole discretion of the Company or any subsidiary,
with or without cause.
13. Interpretation. The interpretation and construction of any
terms or conditions of the Plan, or of this Agreement or other matters related
to the Plan by the Compensation and Stock Option Plan Committee shall be final
and conclusive.
14. Enforceability. This Agreement shall be binding upon the
Optionee, his estate, his personal representatives and beneficiaries.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
exercised by its officer thereunto duly authorized, and the Optionee has
hereunto set his hand all as of the day and year first above written.
SHELLS SEAFOOD RESTAURANTS, INC.
By:_____________________________
Authorized Officer
OPTIONEE
--------------------------------
Address:________________________
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EXHIBIT A TO
[INCENTIVE] STOCK OPTION AGREEMENT
The Option is exercisable during its term only in accordance with the
following:
No. of Years
From Date of Percentage Exercisable
Option Agreement Per Time Period Cumulative
One 33.33% = ______ sh. 33.33% = ______ sh.
Two 33.34% = ______ sh. 66.7% = ______ sh.
Three 33.33% = ______ sh. 100% = ______ sh.
Notwithstanding the foregoing, if there occurs a Change in Control of
the Company, the Option shall become immediately exercisable in full whether or
not the dates above have passed. For purposes hereof, a Change in Control of the
Company is deemed to occur if (1) there occurs (A) any consolidation or merger
in which the Company is not the continuing or surviving entity or pursuant to
which shares of the Common Stock would be converted into cash, securities or
other property, other than a merger of the Company in which the holders of the
Common Stock immediately prior to the merger have the same proportionate
ownership of common stock of the surviving corporation immediately after the
merger, or (B) any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions) of all or substantially all the Company's
assets; (2) the Company's stockholders approve any plan or proposal for the
liquidation or dissolution of the Company; (3) any person (as such term is used
in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934) shall
become the beneficial owner (within the meaning of Rule 13d-3 under said Act) of
40% or more of the Common Stock other than pursuant to a plan or arrangement
entered into by such person and the Company; or (4) during any period of two
consecutive years, individuals who at the beginning of such period constitute
the entire Board of Directors shall cease for any reason to constitute a
majority of the Board unless the election or nomination for election by the
Company's stockholders of each new director was approved by a vote of at least
two-thirds of the directors then still in office who were directors at the
beginning of the period.
