EXHIBIT 10.5
O'CHARLEY'S INC.
RESTRICTED STOCK AGREEMENT
This RESTRICTED STOCK AGREEMENT (the "Agreement") dated as of November 15,
2004 is by and between O'Charley's Inc., a Tennessee corporation (the
"Company"), and Xxxxxxxx X. Xxxxx (the "Grantee"). Capitalized terms used but
not defined in this Agreement shall have the meaning ascribed to such terms in
the O'Charley's 2000 Stock Incentive Plan (the "Plan").
Section 1. Restricted Stock Award. The Grantee is hereby granted the right
to receive 6,000 shares (the "Restricted Stock") of the Company's common stock,
no par value per share (the "Common Stock"), subject to the terms and conditions
of this Agreement.
Section 2. Vesting of the Award. The shares of Restricted Stock granted
pursuant to Section 1 hereof shall vest at such times (each, a "Vesting Date")
and in the percentages set forth below, if and only if the Grantee is
continuously employed by the Company (or any Subsidiary or Affiliate of the
Company) in the same position as Grantee holds on the date hereof (or a
substantially equivalent or higher position as determined by the Company in its
sole discretion) from the date hereof through such Vesting Date (except as set
forth in Section 5(b) hereof):
PERCENTAGE OF
VESTING DATE RESTRICTED STOCK VESTING
------------ ------------------------
November 15, 2005 33%
November 15, 2006 33%
November 15, 2007 34%
Section 3. Distribution of Restricted Stock. Certificates representing the
Restricted Stock will be distributed to the Grantee as soon as practicable after
the Vesting Date. Notwithstanding the foregoing, if the Grantee's employment
with the Company (or any Subsidiary or Affiliate of the Company) is terminated
under the circumstances set forth in Section 5(b), certificates representing the
Restricted Stock awarded hereunder will be distributed to the Grantee (or the
Grantee's estate or legal representative) as soon as practicable after the
Grantee's termination.
Section 4. Voting Rights and Dividends. Prior to the distribution of the
Restricted Stock, certificates representing shares of Restricted Stock will be
held by the Company (the "Custodian") in the name of the Grantee. The Custodian
will take such action as is necessary and appropriate to enable the Grantee to
vote the Restricted Stock. All cash dividends received by the Custodian, if any,
with respect to the Restricted Stock will be remitted to the Grantee. Stock
dividends issued with respect to the Restricted Stock shall be treated as
additional shares of Restricted Stock that are subject to the same restrictions
and other terms and conditions that apply to the shares of Restricted Stock.
Notwithstanding the foregoing, no voting rights or
dividend rights shall inure to the Grantee following the forfeiture of the
Restricted Stock pursuant to Section 5(a).
Section 5. Termination/Change of Status.
(a) In the event that either: (i) Grantee's employment by the
Company (or any Subsidiary or Affiliate of the Company) terminates for any
reason (other than by reason of death, Disability or Retirement) or (ii)
Grantee, for any reason (other than by reason of death, Disability or
Retirement), ceases to remain employed by the Company (or any Subsidiary or
Affiliate of the Company) in the same position as Grantee holds on the date
hereof (or a substantially equivalent or higher position as determined by the
Company in its sole discretion), all shares of Restricted Stock that have not
vested prior to the date of termination shall be immediately forfeited and
Grantee shall have no further rights with respect to such shares of Restricted
Stock.
(b) If the Grantee dies while employed by the Company (or any
Subsidiary or Affiliate of the Company) or if the Grantee's employment is
terminated by reason of Disability or Retirement, all unvested shares of
Restricted Stock shall be deemed vested as of the date of such death, Disability
or Retirement.
Section 6. No Transfer or Pledge of Restricted Stock. No shares of
Restricted Stock may be sold, assigned, transferred, pledged, hypothecated or
otherwise encumbered or disposed of prior to the Vesting Date.
Section 7. Tax Election. The Grantee may, but is not required to, elect to
apply the tax rules of Section 83(b) of the Internal Revenue Code of 1986, as
amended (the "Code"), to the issuance of the Restricted Stock. If the Grantee
makes an affirmative election under Section 83(b) of the Code, the Grantee shall
deliver a copy of such election to the Company in accordance with the
requirements of the Code and the Regulations promulgated thereunder.
Section 8. Tax Withholding. The Company may withhold from any distribution
of Restricted Stock an amount of Common Stock equal to such federal, state or
local taxes as shall be required to be withheld pursuant to any applicable law
or regulation, unless the Company agrees to accept a payment of cash (or to
withhold from other wages payable to Grantee) in the amount of such withholding
taxes.
Section 9. Change of Control. Upon the occurrence of a Change in Control
or a Potential Change in Control as defined in Section 10 of the Plan, all
Restricted Stock shall be deemed vested and the restrictions under the Agreement
with respect to the Restricted Stock, including the restriction on transfer set
forth in Section 6 hereof, shall automatically expire and shall be of no further
force or effect.
Section 10. Stock Subject to Award. In the event that the shares of Common
Stock of the Company should, as a result of a stock split or stock dividend or
combination of shares or any other change, redesignation, merger, consolidation,
recapitalization or otherwise, be increased or decreased or changed into or
exchanged for a different number or kind of shares of stock or other securities
of the Company or of another corporation, the number of shares of
2
Restricted Stock that have been awarded to Grantee shall be appropriately
adjusted to reflect such action. If any such adjustment shall result in a
fractional share, such fraction shall be disregarded.
Section 11. Stock Power. Concurrently with the execution of this
Agreement, the Grantee shall deliver to the Company a stock power, endorsed in
blank, relating to the shares of Restricted Stock. Such stock power shall be in
a form satisfactory to the Company.
Section 12. Legend. Each certificate representing Restricted Stock shall
bear a legend in substantially the following form:
THIS CERTIFICATE AND THE SHARES OF STOCK REPRESENTED HEREBY ARE SUBJECT TO
THE TERMS AND CONDITIONS (INCLUDING FORFEITURE AND RESTRICTIONS AGAINST
TRANSFER) CONTAINED IN THE RESTRICTED STOCK AGREEMENT (THE "AGREEMENT")
BETWEEN THE OWNER OF THE RESTRICTED STOCK REPRESENTED HEREBY AND
O'CHARLEY'S INC. (THE "COMPANY"). THE RELEASE OF SUCH STOCK FROM SUCH
TERMS AND CONDITIONS SHALL BE MADE ONLY IN ACCORDANCE WITH THE PROVISIONS
OF THE AGREEMENT, A COPY OF WHICH IS ON FILE AT THE COMPANY.
Section 13. Restrictive Agreement. As a condition to the receipt of any
vested shares of Restricted Stock upon distribution, the Grantee (or his legal
representative or estate or any third party transferee), if the Company so
requests, will execute an agreement in form satisfactory to the Company in which
the Grantee or such other recipient of the shares represents that he is
acquiring the shares without a view to distribution thereof.
Section 14. No Right to Continued Employment. This Agreement shall not be
construed as giving the Grantee the right to be retained in the employ of the
Company (or any Subsidiary or Affiliate of the Company), and the Company (or any
Subsidiary or Affiliate of the Company) may at any time dismiss the Grantee from
employment, free from any liability or any claim hereunder.
Section 15. Miscellaneous.
15.1 Entire Agreement. This Agreement contains the entire
understanding and agreement between the Company and the Grantee concerning the
Restricted Stock granted hereby, and supersedes any prior or contemporaneous
negotiations and understandings. The Company and the Grantee have made no
promises, agreements, conditions, or understandings relating to the Restricted
Stock, either orally or in writing, that are not included in this Agreement.
15.2 Captions. The captions and section numbers appearing in this
Agreement are inserted only as a matter of convenience. They do not define,
limit, construe, or describe the scope or intent of the provisions of this
Agreement.
3
15.3 Counterparts. This Agreement may be executed in counterparts,
each of which when signed by the Company and the Grantee will be deemed an
original and all of which together will be deemed the same Agreement.
15.4 Notice. Any notice or communication having to do with this
Agreement must be given by personal delivery or by certified mail, return
receipt requested, addressed, if to the Company, to the principal office of the
Company, and, if to the Grantee, to the Grantee's last known address provided by
the Grantee to the Company.
15.5 Amendment. This Agreement may be amended by the Company,
provided that unless the Grantee consents in writing, the Company cannot amend
this Agreement if the amendment will materially change or impair the Grantee's
rights under this Agreement and such change is not to the Grantee's benefit.
15.6 Successors and Assignment. Each and all of the provisions of
this Agreement are binding upon and inure to the benefit of the Company and the
Grantee and their heirs, successors, and assigns. However, neither the
Restricted Stock nor this Agreement may be assigned or transferred except as
otherwise set forth in this Agreement.
15.7 Governing Law. This Agreement shall be governed and construed
exclusively in accordance with the laws of the State of Tennessee applicable to
agreements to be performed in the State of Tennessee.
[Signature page to follow.]
4
IN WITNESS WHEREOF, the Company and the Grantee have executed this
Agreement to be effective as of November 15, 2004.
O'CHARLEY'S INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------------
Title: CEO
--------------------------------
/s/ Xxxxxxxx X. Xxxxx
---------------------------------------
Xxxxxxxx X. Xxxxx
5
STOCK POWER
FOR VALUE RECEIVED, the undersigned does hereby sell, assign and transfer
to O'Charley's Inc. (the "Company"), _________ shares of the Company's common
stock represented by Certificate No. ____. The undersigned authorizes the
Secretary of the Company to transfer the stock on the books of the Company in
the event of the forfeiture of any shares issued under the Restricted Stock
Agreement dated November 15, 2004 between the Company and the undersigned.
Dated: _____________________
/s/ Xxxxxxxx X. Xxxxx
----------------------------
Xxxxxxxx X. Xxxxx
6
