EMPLOYEE STOCK OPTION AGREEMENT
EXHIBIT
10.02
UNDER THE
2007 EQUITY INCENTIVE PLAN
OF
BENIHANA INC.
In
consideration of services to be rendered by you (the “Grantee”)
to Benihana Inc., a Delaware corporation (the “Company")
or its subsidiary, you have been granted an option (the “Option”)
under the Company’s 2007 Equity Incentive Plan (the “2007
Plan”), which is incorporated herein by reference, to purchase from the
Company a number of shares of Class A Common Stock of the Company (the “Shares”)
at the exercise price per Share as listed on Exhibit A (the “Information
Page”) subject to the terms and conditions of this Agreement and the 2007
Plan.
1. OPTION TERMS. The
date of grant, the maximum number of Shares the Option entitles the Grantee to
purchase, the number of Shares which are subject to that portion of the Option
that is intended to qualify as an Incentive Stock Option (“ISO”) and
the number of Shares which are subject to that portion of the Option that is
designated as a non-incentive stock option (“non-ISO”),
the option exercise price per Share, the date or dates on which the Option will
vest (i.e., will become
first exercisable) and the date of expiration of the Option are identified on
the Information Page.
2. TERM OF OPTION AND
EXERCISABILITY. Subject to the provisions of Paragraphs 5 and
6 hereof, the Option shall expire at 5:00 P.M. (New York City Time) on the
Expiration Date listed on the Information Page (which in the case of an ISO
granted to a 10% Holder shall be no more than five years from the grant date)
and shall become first exercisable as to the Shares covered by the Option in one
or more installments on the dates listed on the Information
Page. Notwithstanding the foregoing, the Option may not be exercised
as to less than 100 Shares at any time (or the remaining Shares covered by the
Option, if less than 100 Shares); and the Option may not be exercised until
fulfillment of all applicable conditions precedent referred to in Paragraph 7
hereof. The exercise price of the Option shall be paid in full at the
time of exercise as set forth in Paragraph 3 hereof. Except as
provided in Paragraphs 5 and 6 hereof, the Option may not be exercised unless
the Grantee shall have been in the continuous employ of the Company or of one or
more of its subsidiaries from the date of the Option grant to the date of the
exercise of the Option.
3. METHOD OF EXERCISING
OPTION. The Option is only exercisable by the Grantee (or his
or her permitted transferee as set forth in Paragraph 8 hereof) by written
notice to the Stock Plan Administrator substantially in the form of that
attached to this Agreement as Exhibit B or in
such other form as the Stock Plan Administrator may
designate. Payment of the exercise price for all of the Shares as to
which the Option is being exercised shall be made: (a) by certified
check or money order payable to the order of the Company; (b) if permitted under
the Company’s policies then in effect and applicable law, from cash proceeds
received under a broker-assisted contemporaneous sale of Shares issued pursuant
to such Option exercise; (c) with the prior approval of the Committee (as
defined in Paragraph 13 hereof) and subject to the following sentence, by
delivering Shares having a Fair Market Value as of the last trading day
immediately preceding the exercise date equal to the exercise price for all of
the Shares as to which the Option is being exercised, by delivering physical
certificates duly endorsed in blank for transfer to the Company or if permitted
by the Company, by submitting certificates by attestation; or (d) by a
combination of (i) cash, (ii) proceeds from the contemporaneous sale
described in clause (b) above and (iii) with prior approval of the
Committee, Shares as described in clause (c) above. Notwithstanding anything to
the contrary contained herein, Shares used in payment of the exercise price of
the Option must (1) have been acquired by the Grantee for cash in the open
market at least six months prior to the Option exercise date, or (2) if
acquired pursuant to a Stock Grant granted under any equity incentive plan of
the Company, including the 2007 Plan, must be owned by the Grantee and all
conditions applicable to such Shares pursuant to the Stock Grant must have been
satisfied at least six months prior to the Option exercise date, or (3) if
acquired from the Company by settlement of a Restricted Stock Unit, or by
exercise of an option, Stock Appreciation Right, or other similar award, must
have been owned by the Grantee for a period of at least six months prior to the
Option exercise date.
Promptly
following the Option exercise, the Stock Plan Administrator will instruct the
Company’s transfer agent and stock registrar to deliver to the Grantee (or his
or her permitted transferee) or for his or her account as specified by the
Grantee in the Notice of Exercise, the number of Shares with respect to which
the Option was exercised, less the number of Shares sold for purposes of payment
pursuant to clause (b) above and less the number of Shares delivered to the
Company by attestation pursuant to clause (c) or (d) above. The
Grantee shall not have any of the rights of a stockholder with respect to the
Shares issuable upon exercise of the Option until the Shares shall have been
issued. In the event the Option shall be exercised (if permitted
hereunder) by a person other than the Grantee, such permitted transferee shall
provide appropriate proof of his or her right to exercise the Option to the
Stock Plan Administrator in accordance with its policies and
procedures. Shares issued upon the exercise of the Option as provided
herein shall be fully paid and non-assessable.
4. EMPLOYMENT. In consideration
of the granting of the Option and regardless of whether the Option shall be
exercised, the Grantee will fulfill all the duties and obligations of his or her
employment by the Company or its subsidiary. Nothing in this
Agreement shall confer upon the Grantee any right to similar option grants in
future years or any right to be continued in the employ of the Company or its
subsidiaries or shall interfere in any way with the right of the Company or any
such subsidiary to terminate or otherwise modify the terms of the Grantee's
employment.
5. TERMINATION OF
EMPLOYMENT. Except as otherwise provided in Paragraph 6
hereof, in the event that the employment of the Grantee by the Company or its
subsidiary terminates, the Option shall be exercisable (to the extent that the
Option was vested and therefore exercisable at the time of the Grantee’s
termination of employment) for ninety (90) days following such termination of
employment, but no later than the expiration date specified on the Information
Page; provided, however, if the Option is a non-ISO and if the Grantee continues
to provide services to the Company as a consultant or non-employee director
following the termination of his or her employment by the Company or its
subsidiary, then the Grantee shall not be deemed to have terminated his or her
employment for purposes of this sentence during the period of such consultancy
or while so serving as a non-employee director. Notwithstanding
anything to the contrary in this Agreement or the 2007 Plan, if the Grantee’s
employment is terminated by the Company or any of its subsidiaries for gross
misconduct, including without limitation, violations of applicable Company
policies or legal or ethical standards, all rights under the Option (including
vested rights) shall terminate on the employment termination
date. This Agreement may be terminated by the Company, and upon any
such termination the Option underlying this Agreement, to the extent then
unexercised shall be null and void as of the date of such termination, upon a
breach by the Grantee of any of his or her obligations to the Company pursuant
to any written agreement between the Grantee and the Company, including without
limitation, any agreement relating to confidentiality, intellectual property or
restrictions on competition and solicitation.
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6. DEATH, DISABILITY OR RETIREMENT OF
GRANTEE. In the event of a termination of the Grantee’s
employment by the Company or its subsidiary as a result of his or her death,
Disability or Retirement, then the portion of the Option which has vested and is
exercisable as of the date of the Grantee’s termination of employment shall
remain exercisable by the Grantee, or by the Grantee’s estate or heirs, for a
period of twelve (12) months following the Grantee’s employment termination date
(or, if shorter, the remainder of the Option term), provided that in the case of
a termination as a result of Disability or Retirement, the Option was granted to
the Grantee at least one year prior to the Grantee's employment termination date
or as otherwise determined by the Committee. The term “Disability”
as used in this Agreement shall have the meaning set forth in Section 22(e)(3)
of the Internal Revenue Code of 1986, as amended. The term “Retirement”
as used in this Agreement means the termination of the Grantee's employment with
the Company or its subsidiary on or after (a) the Grantee’s 65th
birthday or (b) the Grantee’s 55th
birthday if the Grantee has completed ten years of service with the Company or
any of its subsidiaries.
7. CONDITION PRECEDENT TO EXERCISE OF
OPTION. In the event that the exercise of the Option or the issuance of
the Shares upon exercise thereof shall be subject to, or shall require, any
prior exchange listing, stockholder approval or other condition or act, pursuant
to the applicable laws, regulations or policies of any stock exchange, federal,
state or local government or its agencies, then the Option shall not be
exercisable until the fulfillment of such condition. The Grantee
shall have no rights against the Company if the Option is not exercisable or its
exercise is delayed by virtue of the foregoing sentence.
8. NON-TRANSFERABILITY. The
Option shall not be transferable otherwise than by will or the laws of descent
and distribution and is exercisable during the lifetime of the Grantee only by
him or her or his or her guardian or legal representative and following his or
her death will be exercisable by the Grantee’s estate, upon presentation to the
Stock Plan Administrator of letters testamentary or other documentation
satisfactory to the Stock Plan Administrator. More particularly (but
without limiting the generality of the foregoing), the Option may not be
assigned, transferred (except as provided in this Paragraph), pledged or
hypothecated in any way, shall not be assignable by operation of law and shall
not be subject to execution, attachment, pledge, hypothecation or other
disposition and the levy of any execution, attachment or similar process upon
the Option shall be null and void and without effect. Notwithstanding
the foregoing, the Committee may permit further transferability to the extent
permitted under the 2007 Plan, on a general or specific basis, and may impose
conditions and limitations on any such permitted transferability.
9. EFFECT ON OTHER
BENEFITS. In no event shall the value of the Shares covered by
the Option granted under this Agreement at any time be included as compensation
or earnings for purposes of determining any other compensation, retirement
benefit or other benefit offered to employees of the Company or its subsidiaries
under any benefit plan of the Company unless otherwise specifically provided for
in such benefit plan.
10. PURCHASE FOR INVESTMENT;
LEGEND. Unless the Shares underlying the Option granted
hereunder have been effectively registered under the Securities Act of 1933, as
now in force or hereafter amended, the Company shall be under no obligation to
issue or transfer any Shares covered by any Option unless the Grantee (or
Grantee’s permitted transferees pursuant to Paragraph 8 above) shall give a
written representation and undertaking to the Company and upon which, in the
opinion of Company counsel, the Company may reasonably rely that Grantee is
acquiring the Shares for his or her own account as an investment and not with
the view to, or for sale in connection with, the distribution of such Shares,
and that Grantee will make no transfer of the same except in compliance with any
rules and regulations in force at the time of such transfer under the Securities
Act of 1933, or any other applicable law, and that if Shares are issued or
transferred without such registration, a legend to this effect may be placed
upon the certificate representing the Shares.
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11. TAXES. The Grantee
must pay or cause to be paid to the Company upon demand any and all amounts due
for the purpose of satisfying the Company’s liability, if any, to withhold
federal, state or local income tax or employment tax (plus interest or penalties
thereon, if any, caused by a delay in making such payment) incurred by reason of
the Grantee’s exercise of the Option or the sale of Shares in connection
therewith. The Company shall, to the extent permitted by law, have
the right to deduct the required withholding from any payment of any kind
otherwise due to the Grantee. The Grantee shall consult his or her
own tax advisors regarding the tax consequences to him or her of the exercise of
the Option or sale of any Shares covered by the Option.
12. AVAILABLE SHARES; LEGAL
COMPLIANCE. The Company shall at all times during the term of
the Option reserve and keep available such number of Shares as will be
sufficient to satisfy the requirements of this Agreement, shall pay all original
issue and transfer taxes with respect to the issuance of such Shares and all
other fees and expenses necessarily incurred by the Company in connection
therewith and will 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.
13. ADMINISTRATION. The
Compensation and Stock Option Committee (the “Committee”)
shall have full authority and discretion, subject only to the express terms of
the 2007 Plan, to decide all matters relating to the administration and
interpretation of the 2007 Plan and this Agreement, and the Grantee agrees to
accept all such Committee determinations as final, conclusive and
binding. The Company may designate an internal department or may
retain a third-party plan administrator to assist in the administration of the
2007 Plan. The term “Stock Plan
Administrator” as used herein shall mean such internal department or such
third-party plan administrator as designated by the Company from time to
time.
14. COSTS. The Company
shall not charge the Grantee for any part of the Company’s cost to administer
and operate the 2007 Plan. If the Company retains a third-party plan
administrator to assist in the administration of the 2007 Plan, the Grantee may
be charged fees by such third-party plan administrator in connection with the
Grantee’s exercise of the Option, sale of Shares, or other transactions which he
or she effects through such third-party plan administrator.
15. AMENDMENT. This
Agreement shall be subject to the terms of the 2007 Plan, as may be amended by
the Company from time to time, except that no amendment of the 2007 Plan adopted
after the date of this Agreement shall impair the Grantee’s rights hereunder
without his or her consent. In addition to the foregoing, this
Agreement may be amended by the Committee, provided that no such amendment shall
impair the Grantee’s rights hereunder without his or her consent.
16. DATA PRIVACY. By
entering into this Agreement, the Grantee (a) authorizes the Company and its
subsidiaries and the Stock Plan Administrator or any agent of the Company
providing recordkeeping services for the 2007 Plan to disclose to each other
such information and data as either of them shall request in order to facilitate
the grant of options and the administration of the 2007 Plan; (b) waives any
data privacy rights the Grantee may have with respect to such information; and
(c) authorizes the Company and the Stock Plan Administrator or any agent of the
Company providing recordkeeping services for the 2007 Plan to store and transmit
such information in electronic form.
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17. NOTICES. All
notices and communications by the Grantee (or his or her permitted transferee)
in connection with this Agreement or the exercise of the Option granted
hereunder shall be delivered to the Stock Plan Administrator. Unless
otherwise directed by the Company, notices to the Stock Plan Administrator shall
be delivered in writing by nationally recognized overnight courier, certified
mail, postage prepaid or by facsimile to the attention of Chief Financial
Officer, Benihana Inc., 0000 X.X. 00xx
Xxxxxxx, Xxxxx, Xxxxxxx 00000 (facsimile: (000) 000-0000). In the
event the Company retains a third party plan administrator to administer the
2007 Plan, the Grantee will be advised of the procedure to provide notices to
such third party plan administrator and the Company. All notices and
communications by the Stock Plan Administrator or the Company to the Grantee (or
his or her permitted transferee) in connection with this Agreement shall be
given in writing and shall be delivered electronically to the Grantee's e-mail
address appearing on the records of the Company, or by nationally recognized
overnight courier or certified mail, postage prepaid to the Grantee's residence
or to such other address as may be designated in writing by the
Grantee.
18. ENTIRE AGREEMENT AND
WAIVER. This Agreement and the 2007 Plan contain the entire
understanding of the parties and supersede any prior understanding and
agreements between them representing the subject matter hereof. To
the extent that there is an inconsistency between the terms of the 2007 Plan and
this Agreement, the terms of the 2007 Plan shall control. There are
no other representations, agreements, arrangements or understandings, oral or
written, between the parties hereto relating to the subject matter hereof which
are not fully expressed herein or in the 2007 Plan. Any waiver or any
right or failure to perform under this Agreement shall be in writing signed by
the party granting the waiver and shall not be deemed a waiver of any subsequent
failure to perform.
19. SEVERABILITY AND
VALIDITY. The various provisions of this Agreement are
severable and any determination of invalidity or unenforceability of any one
provision shall have no effect on the remaining provisions.
20. GOVERNING LAW. The
interpretation, enforceability and validity of this Agreement shall be governed
by the substantive laws (but not the choice of law rules) of the State of
Florida.
21. SUBSIDIARY. As used herein,
the term "subsidiary" shall mean any present or future corporation which would
be a "subsidiary corporation" of the Company, as that term is defined in Section
424(f) of the Internal Revenue Code of 1986, as amended.
22. HEADINGS;
DEFINITIONS. Paragraph and other headings contained in this
Agreement are for reference purposes only and are in no way intended to
describe, interpret, define or limit the scope, extent or intent of the Option
or any provision hereof. Capitalized terms not otherwise defined
herein have the meanings ascribed to them in the 2007 Plan.
*
* *
By my
signature below I am accepting the stock option grant described on the
Information Page annexed hereto as Exhibit A, subject to
the terms and conditions contained in this Employee Stock Option Agreement and
the 2007 Plan.
Dated:
_______________
| _________________________________ | |
| Name: |
Approved:
By:
___________________
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EXHIBIT
A
INFORMATION
PAGE
|
Name of
Grantee:
|
||
|
Type of
Award:
|
Stock
Option
|
|
|
Date of
Grant:
|
||
|
Expiration
Date:
|
||
|
Number of Shares
underlying
the Stock Option
Grant:
|
||
|
Number of Shares
Intended
to Qualify as an
ISO:
|
||
|
Number of Shares
Designated
as a Non-
ISO:
|
||
|
Option Exercise
Price
per
Share:
|
||
|
Vesting
Schedule:
|
Number
of Shares
|
Vesting
Dates
|
FORM
OF NOTICE - EXHIBIT B
NOTICE OF
EXERCISE OF STOCK OPTION
OF
Dated: _______________
Stock
Plan Administrator
0000
Xxxxxxxxx 00xx Xxxxxxx
Xxxxx,
Xxxxxxx 00000
Dear
Sir:
Reference
is made to the Benihana Inc. 2007 Equity Incentive Plan (as may be amended from
time to time, the “2007 Plan”). Capitalized terms not otherwise defined herein
shall have the meanings ascribed to them in the 2007 Plan.
1. Exercise
Election:
This
constitutes notice, as required under my Employee Stock Option Agreement, that I
elect to purchase the number of Shares for the price set forth
below.
| Stock Option dated: | ______________________________________ |
| Exercise price per Share: | ______________________________________ |
| Number of Shares as to which ISO | |
|
is being
exercised:
|
______________________________________ |
| Number of Shares as to which Non-ISO | |
|
is being
exercised:
|
______________________________________ |
| Total Exercise Price: | ______________________________________ |
2. Method of Payment (Check one of the following to
indicate method of payment):
___ A. Cash: Enclosed
is a certified check or money order payable to “Benihana Inc.” in the amount of
$_________ in full payment of the Total Exercise Price plus
such amounts required to satisfy the Company’s withholding obligation with
respect to this exercise.
___ B. Broker-Assisted Cashless
Exercise: I have authorized the broker with which I maintain
(or am currently establishing) an account, to act as my agent with respect to
the immediate sale of Shares acquired through this Option exercise through a
broker-assisted “cashless” exercise. I have completed the necessary
documentation with my broker and have enclosed a copy of the letter directing my
broker to deliver to the Company a portion of the proceeds from the sale of the
Shares equal to the Total Exercise Price plus amounts required to satisfy the
Company’s withholding obligations with respect to this exercise. By
signing this Notice, I also agree to deliver and cause my broker to deliver such
proceeds to the Company and such other documentation as the Company may request
to complete the exercise.
___ C. (SUBJECT TO PRIOR APPROVAL BY THE
COMPENSATION AND STOCK OPTION COMMITTEE) Stock: I
am paying the Total Exercise Price by surrender of ___________ Share(s) with a
total Fair Market Value of $___________ (based on the average of the high and
low prices of the Company’s Class A Common Stock on the last trading day
immediately preceding the date hereof). I have enclosed a certified
check or money order payable to “Benihana Inc.” in the amount of $_________ in
full payment of the withholding obligations of the Company with respect to this
exercise.
___ D. (SUBJECT TO PRIOR APPROVAL BY THE
COMPENSATION AND STOCK OPTION COMMITTEE) Part Cash/Part
Stock: In full payment of the Total Exercise Price, I enclose
a certified check or money order in the amount of $____________ (representing a
portion of the Total Exercise Price and full payment of the Company’s
withholding obligations with respect to this exercise) and am paying the balance
of Total Exercise Price by surrender of ___________ Share(s) with a total Fair
Market Value of $__________ (based on the average of the high and low prices of
the Company’s Class A Common Stock on the last trading day immediately preceding
the date hereof).
3. Instructions
for Delivery of Shares:
|
Issue
Certificate in the name of:
|
If
requesting shares to be delivered electronically
|
| (“DWAC”) to a broker: | |
| _______________________________ | DTC#:_________________________________ |
| Address:________________________ | Agent bank #:___________________________ |
| _______________________________ | Account #:_____________________________ |
| _______________________________ | Broker Name: ___________________________ |
| Contact Name: __________________________ | |
| Mail Certificate to (if different than above): | Phone #: ______________________________ |
| ____________________________ | Email: _________________________________ |
| ____________________________ | |
| ____________________________ |
4. Representations
and Covenants:
I hereby
represent that (i) I am purchasing all of such Shares for my own account and not
for purposes of resale or distribution and (ii) all Shares surrendered for
payment of the Exercise Price have been continuously owned by me for at least
six (6) months immediately preceding the delivery of such Shares
hereunder. By this exercise, I agree (i) to provide such additional
documents as you may require pursuant to the terms of the 2007 Plan, (ii) to
provide for the payment by me to you (in the manner designated by you) of (A) my
share of any employment taxes that may be due as a result of the exercise of the
Option, and (B) any income tax withholding that may be required as a result of
any Disqualifying Disposition (as defined below) of the Shares, and (iii) to
notify you in writing within fifteen (15) days after the date of any disposition
of the Shares issued upon exercise of this Option that occurs within two (2)
years after the date of grant of the Option or within one (1) year after the
date of issuance of the Shares to me (a “Disqualifying
Disposition”).
___________________________________
Name
(please print):
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