EXHIBIT 10.26
AMENDMENT TO STOCK OPTION PLANS AND AGREEMENT
THIS AMENDMENT TO STOCK OPTION PLAN AND AGREEMENT (the "Agreement")
dated the 7th day of January, 2005, is between Xxxxxxx X. Xxxxxxxx, ("Xxxxxxxx")
and Back Yard Burgers, Inc. (the "Company").
WHEREAS, Xxxxxxxx holds as of the date of this Agreement vested
unexercised options to acquire 113,720 shares of common stock, par value $.01
per share, of the Company, as set forth in Exhibit A hereto, granted pursuant to
the Company's 1993 Incentive Award Plan, 1995 Incentive Award Plan and the 2002
Equity Incentive Plan (the "Options").
WHEREAS, Xxxxxxxx is a party to that certain Separation Agreement dated
as of January 7th, 2005 pursuant to which Xxxxxxxx will resign as a director,
officer and employee of the Company and its subsidiaries.
WHEREAS, the Compensation Committee of the Board of Directors of the
Company has approved the terms and conditions of this Agreement, and the Board
of directors of the Company has ratified and approved this Agreement.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth and for other good and valuable consideration, the parties hereto do
hereby agree as follows:
1. The Company hereby agrees that each of the Company's 1993 Incentive
Award Plan, 1995 Incentive Award Plan and 2002 Equity Incentive Plan, and each
agreement pursuant to which any of the Options were granted to Xxxxxxxx, is
hereby amended to provide that each Option shall be exercisable by Xxxxxxxx
after his termination of employment from the Company, to the extent exercisable
on the date hereof, until the earliest to occur of: (i) the last day of the term
of the Option as specified in the Option grant agreement, and (ii) one year from
the date hereof.
2. The terms and provisions set forth in this Agreement shall modify
and supercede all inconsistent terms and provisions set forth in the Company's
1993 Incentive Award Plan, 1995 Incentive Award Plan and 2002 Equity Incentive
Plan, and each agreement pursuant to which any of the Options were granted to
Xxxxxxxx and, except as expressly modified or superceded by this Agreement, the
terms and provisions of the Company's 1993 Incentive Award Plan, 1995 Incentive
Award Plan and 2002 Equity Incentive Plan, and each agreement pursuant to which
any of the Options were granted to Xxxxxxxx, are hereby ratified and confirmed
and shall continue in full force and effect.
3. This Agreement is personal to Xxxxxxxx and may not be assigned by
Griffith. In the event of death of Xxxxxxxx, Xxxxxxxx'x heirs and assigns will
retain the rights as stated in the original option grant agreements. Any
attempted assigned or transfer of this Agreement by Xxxxxxxx shall be void.
4. This Agreement shall be governed by the laws of the State of
Tennessee. If any part of this Agreement is construed to be in violation of any
law, such part of the Agreement shall be modified to achieve the objective of
the parties to the fullest extent permitted and the balance of this Agreement
shall remain in full force and effect.
5. Xxxxxxxx agrees that this Agreement and the agreements referred to
herein contain the entire agreement between Xxxxxxxx and the Company with
respect to the subject matter hereof, and there are no promises, undertakings or
understandings outside of this Agreement and the agreements referred to herein,
and this Agreement supersedes all prior or contemporaneous discussions,
negotiations and agreements, whether written or oral with respect to the matters
set forth herein. Any modification of or addition to this Agreement must be in
writing, and signed by an officer of the Company and Griffith.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their signatures below.
/s/ Xxxxxxx X. Xxxxxxxx
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XXXXXXX X. XXXXXXXX
BACK YARD BURGERS, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxx
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Title: Chief Executive Officer
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