1
EXHIBIT 10.5
OPTION AGREEMENT
THIS OPTION AGREEMENT ("Agreement") is made and entered into as of the
30th day of September 1998, by EATERIES, INC., an Oklahoma corporation (the
"Company"), and XXXX GROW ("Awardee"), an Oklahoma resident.
The Company and Awardee agree as follows:
1. Grant of Option. The Company grants to Awardee options to purchase
150,000 shares of the common stock of the Company (the "Option Shares") at an
exercise price of $6.00 per share (the "Stock Options") representing the market
price on August 14, 1998. The Stock Options are NOT awarded pursuant to the
Company's Omnibus Equity Compensation Plan (the "Plan").
2. Future Options. Subject to the terms and conditions stated in this
Agreement, the Stock Options shall vest, and Awardee shall have the right to
exercise the Stock Options, in varied increments. A forty percent (40%)
increment (60,000 shares) shall vest and become exercisable on June 1, 2000
("First Increment"); thereafter, twenty percent (20%) increments (30,000 shares)
shall vest and become exercisable on June 1, 2001, June 1, 2002, and June 1,
2003. If Awardee ceases to be an employee of the Company for any reason prior to
the date any or all of the annual installments have vested, the Stock Options
shall be forfeited and expire with respect to the unvested portion. Exercise
rights shall be cumulative, meaning that any vested but unexercised Stock
Options from prior years may be exercised without reducing the rate at which
Stock Options vest and become exercisable.
3. Term. The Stock Options shall expire upon the earlier of: (a)
expiration prior to vesting as specified by paragraph 2 above; (b) the fifth
anniversary of the date on which they first became exercisable; or (c) if the
Stock Options were exercisable at the time the Awardee ceased to be an employee
of the Company, ninety (90) days after Awardee ceases to be an employee of the
Company for any reason unless such cessation of employment shall be caused by
Awardee's voluntary termination of employment or the Company's termination of
the employment of the Awardee "for cause," in which events the Stock Options
shall cease to be exercisable immediately upon termination of employment. As
used herein, Awardee shall be terminated "for cause" if Awardee (i) commits a
material act of dishonesty, fraud, misrepresentation, or other act of moral
turpitude, (ii) is guilty of gross carelessness or misconduct, (iii) has been
convicted of a felony crime, (iv) refuses to obey the clear and lawful direction
of the Company's President, or (v) acts in a way that has a direct, substantial,
and adverse effect on the Company's reputation.
4. Method of Exercise. To exercise the Stock Options, Awardee shall
give the Company written notice of the exercise of the options, in substantially
the form attached hereto as Exhibit A. Awardee shall pay the appropriate
exercise price for the Option Shares at the time of the notice of the exercise
of the Stock Options in cash or in such other consideration as the Company's
Compensation Committee (the "Committee") determines is consistent with the
purpose of this Agreement and applicable law. The Company shall issue or shall
have its transfer agent issue one or more certificates for the Option Shares
purchased within thirty (30) business days after exercise. The
2
Committee may establish other requirements to provide reasonable procedures for
the exercise of the Stock Options.
5. Transferability of Options. Awardee shall not have the right to
transfer all or any part of the Stock Options except by will or pursuant to the
laws of descent and distribution or to a trust or family partnership for estate
planning purposes.
6. Reimbursement for Withholding Liabilities. Subsequent to the
granting of the Stock Options to Awardee pursuant to this Agreement, Awardee
shall have the obligation to reimburse the Company for any withholding
liabilities for Federal, state, and local income taxes, social security taxes,
and any other taxes which it may incur as a result of the granting, vesting,
and/or exercise of the Stock Options. Awardee shall reimburse the Company for
those amounts within thirty (30) days after his receipt of a written accounting
of the amounts due. Awardee shall satisfy the tax withholding reimbursement
obligation with cash.
7. Transfer Restrictions. Awardee acknowledges that the Stock Options
and the underlying common stock have not been registered with state or federal
securities agencies. Awardee is acquiring the Stock Options, and will acquire
the common stock, for investment and not with a view to the distribution
thereof. The Company has not promised to register either the Stock Options or
the underlying common stock.
8. Modification. This Agreement sets forth the entire understanding of
the parties with respect to the subject matter hereof, supersedes all existing
agreements between them concerning such subject matter, and may be modified only
by a written instrument duly executed by each party.
9. Notices. Any notice or other communication required or permitted to
be given hereunder shall be in writing and shall be mailed by certified mail,
return receipt requested, or delivered against receipt, to the party to whom it
is to be given at the address of such party set forth in the records of the
Company (or to such other address as the party shall have furnished in writing).
Notice to the estate of Awardee shall be sufficient if addressed to Awardee as
provided in this paragraph 9. Any notice or other communication given by
certified mail shall be deemed given at the time of certification thereof,
except for a notice changing a party's address which shall be deemed given at
the time of receipt thereof.
10. Acceleration of Vesting. In the event of a Change in Control prior
to June 1, 1999, options for 30,000 shares from Awardee's First Increment of
options shall accelerate and vest. Should a Change in Control occur between June
1, 1999 and June 1, 2000, Awardee's entire First Increment of options shall
accelerate and vest.
11. Change in Control. For purposes of this Agreement, "Change in
Control" shall mean a change in control of the Company of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Securities Exchange Act of 1934, as amended (the
"Act"), whether or not the Company is then subject to such reporting
-2-
3
requirement; provided that, without limitation, a Change in Control shall be
deemed to have occurred if any individual, partnership, firm, corporation,
association, trust, unincorporated organization, or other entity, or any
syndicate or group deemed to be a person under Section 14(d)(2) of the Act, who
is not as of the date of this Agreement the "beneficial owner" (as defined in
Rule 13d-3 of the General Rules and Regulations under the Act), directly or
indirectly, of securities of the Company representing fifty-one percent (51%) or
more of the combined voting power of the Company's then outstanding securities
entitled to vote in the election of directors of the Company becomes such a
fifty-one percent (51%) beneficial owner.
IN WITNESS WHEREOF, the parties hereto have executed this Option
Agreement as of the day and year first set forth above.
COMPANY:
EATERIES, INC.
By:
-------------------------------------------
Xxxxxxx X. Xxxx, Xx., President
AWARDEE:
----------------------------------------------
Xxxx Grow
-3-
4
EXHIBIT A
NOTICE OF EXERCISE OF STOCK OPTIONS
The undersigned hereby gives notice to Eateries, Inc. (the "Company")
of exercise of the stock options issued to him pursuant to the terms of the
Stock Option Agreement between the Company and the undersigned, dated as of
______________________, to purchase _________ shares of the common stock of the
Company. The undersigned has enclosed a check for $_____ and delivers _________
shares of the Company's common stock held of record by him and having a fair
market value of $_____ as payment of the purchase price for the shares of common
stock.
DATED this _____ day of __________________ , 19__.
----------------------------------------------
-4-
