OPTION AGREEMENT
This agreement is entered into this second day of October, 1998, by
and between VICORP Restaurants, Inc. (the Corporation), and Xxxxxx X.
Xxxxxxxx (Optionee).
WHEREAS, the Corporation has adopted the Amended and Restated 1982
Stock Option Plan ("Plan"), which Plan is in full force and effect; and
WHEREAS, pursuant to Article VIII of the Plan, the Committee of
Non-Employee Directors is to notify the recipient of the grant of any option
in a writing delivered in duplicate either in person or by mail,
NOW, THEREFORE, the parties hereto acknowledge and agree as follows:
X. XXXXX:
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Optionee is hereby granted a non-qualified option to purchase under
the terms of the plan 50,000 shares of the Corporation's common stock (par
value $0.05 per share) for an exercise price of $14.25 per share. The
options shall be vested according to the following schedule:
16,666 shares will vest on October 2, 1999
16,667 shares will vest on October 2, 2000
16,667 shares will vest on October 2, 2001
II. TERM:
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Each option granted shall expire ten years from the date of grant,
unless canceled or terminated earlier in accordance with the terms of the
Plan.
III. EXERCISE OF OPTIONS:
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Only options which are vested may be exercised.
IV. MANNER OF EXERCISE:
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(a) Notice to the Corporation: Each exercise of an option shall
be made by the delivery by the Optionee of written notice of such election to
the Corporation, either in person or by mail, stating the number of shares
with respect to which the option is being exercised and specifying a date on
which the shares will be taken and payment made therefor. The date shall be
at least fifteen (15) days after the giving of such notice, unless an earlier
date shall have been mutually agreed upon.
(b) Issuance of Stock: Subject to any law or regulation of the
Securities and Exchange Commission or other body having jurisdiction
requiring an action to be taken in connection with the shares specified in a
notice of election before the shares can be delivered to the Optionee, on the
date specified in the notice of election, the Corporation shall deliver, or
cause to be delivered to the Optionee stock certificates for the number of
shares with respect to which the option is being exercised, against payment
therefor (including payment of any tax required to be withheld). In the
event of any failure to take and pay, on the date stated, for the full number
of shares specified in the notice of election, the option shall become
inoperative only as to those shares which are not taken or paid for, but
shall continue with respect to any remaining shares subject to the option as
to which exercise has not yet been made.
V. ASSIGNMENT:
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Any option granted under the Plan shall not be assigned, pledged,
or hypothecated in any way, shall not be subject to execution, and shall not
be transferable other than by will or the laws of descent and distribution.
Any attempted assignment or other prohibited disposition shall be null and
void.
VI. TERMINATION:
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(a) Termination Other Than At Death Or Disability: If the
Optionee terminates his position as an Employee of the Corporation for any
reason other than death or disability, any unexpired and unexercised granted
options shall be canceled three months after the effective date of the
Optionee's termination.
(b) Termination At Death Or Disability: In the event of the death
of the Optionee, any option held by him at the time of his death shall be
transferred as provided in his will or by the laws of descent and
distribution, and may be exercised by such transferee at any time within
twelve months after the date of death, to the extent the option is
exercisable on the date of death, and provided it is exercised within the
time prescribed in the Plan. In the event of the disability of the Optionee,
any option held by him may be exercised in whole or in part, by the Optionee
or his personal representative at any time within twelve months after the
date of disability, to the extent the option is exercisable on the date of
disability, and provided that it is exercised within the time prescribed in
the Plan. Disability and time of disability shall be determined by the
Committee.
VII. CHANGES IN CAPITAL STRUCTURE:
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The number of shares granted to Optionee will be subject to
adjustment in the case of stock splits, combinations, stock dividends,
reorganization and similar events.
VIII. SUBSTITUTION OR CANCELLATION UPON ACQUISITION:
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As used in this article, "Acquisition Event" means (1) any sale or
other disposition of all or substantially all of the assets of the
Corporation or of any participating subsidiary pursuant to a plan which
provides for the liquidation of the Corporation or the participating
subsidiary, (2) any exchange by the holders of all of the outstanding shares
of Common Stock for securities issued by another entity, or in whole or in
part for cash or other property, pursuant to a plan of exchange approved by
the holders of a majority of such outstanding shares, or (3) any transaction
to which 425(a) of the Internal Revenue Code of 1954, as amended, applies and
to which the Corporation or any participating subsidiary is a party in
connection with any Acquisition Event and upon such terms and conditions as
the Board may establish:
(a) The Committee may waive any limitation applicable to any
option or right granted to the Optionee by this Agreement under the Plan so
that such option and right, from and after a date prior to the Acquisition
Event that is specified by the Committee, shall be exercisable in full.
(b) If the Committee so determines, the Optionee may be given the
opportunity to make a final settlement for the entire unexercised portion of
any option and any right granted by this Agreement under the Plan, including
any portion not then currently exercisable, in any one or more of the
following matters:
(i) Surrender such unexercised portion for cancellation in
exchange for the payment in cash of an amount not less than the difference
between the value per share of Common Stock as measured by the value to be
received by the holders of the outstanding shares of Common Stock pursuant to
the terms of the Acquisition Event, as determined by the Committee in its
discretion, and the price at which such option and right is or would become
exercisable, multiplied by the number of shares represented by such
unexercised portion.
(ii) Exercise such option and right, including any portion not
then otherwise currently exercisable, prior to the Acquisition Event so that
the Optionee would be entitled, with respect to shares thereby acquired, to
participate in the Acquisition Event as a holder of Common Stock.
(iii) Surrender such option and right for cancellation in exchange
for a substitute option, with or without a related stock appreciation right,
providing substantially equal benefits and granted or to be granted by an
employer corporation, or a parent or subsidiary of such an employer
corporation, that after the Acquisition Event is expected to continue to
conduct substantially the same business as that acquired from the Corporation
or a participating subsidiary pursuant to the Acquisition Event.
If the Optionee is given one or more of such opportunities with
respect to the entire unexercised portion of any option and right granted by
this Agreement, the option and right may be canceled by the Corporation upon
the occurrence of the Acquisition Event and thereafter the Optionee will be
entitled only to receive the appropriate benefit pursuant to clause (i),
(ii), or (iii) above, whichever may be applicable.
The provisions of this article are not intended to be exclusive of
any other arrangements that the Board might approve for settlement of any or
all outstanding options and rights in connection with an Acquisition Event or
otherwise.
IX. ADMINISTRATION:
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The Plan is administered by a committee of non-employee directors
appointed by the Board of Directors of the Corporation ("Committee") to whom
all correspondence shall be directed.
X. MISCELLANEOUS:
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(a) Interpretation: Any inconsistencies between the provisions of
this Option Agreement and the Plan shall be governed by the terms and
provisions of the Plan. Optionee is referred to the Plan to determine all of
his rights and obligations, only a portion of which have been set forth in
this Agreement.
(b) Acknowledgment: By execution of this Agreement, Optionee
acknowledges receipt of a duplicate copy of the same as notification of his
grant of options and that Optionee agrees in consideration of such option he
will abide by all the terms and conditions of the Plan.
IN WITNESS WHEREOF, the parties hereto have executed this Option
Agreement as of the day and year first above-written.
VICORP Restaurants, Inc.
By /s/ Xxxxxxx X. Xxxxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxxxx, Chairman
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, Optionee
This is Page 4 of a 4-page Option Agreement between VICORP Restaurants, Inc.
and Xxxxxx X. Xxxxxxxx dated October 2, 1998.
