Exhibit
10.2
CRACKER BARREL OLD COUNTRY STORE, INC.
2002 OMNIBUS INCENTIVE
COMPENSATION PLAN
(As amended through November
25, 2008)
1.
PURPOSE .
The purpose of
the Cracker Barrel Old Country Store, Inc. 2002 Omnibus Incentive
Compensation Plan (the “Plan”) is to provide motivation
to Employees of the Company and its Subsidiaries and Affiliates to
put forth maximum efforts toward the continued growth,
profitability, and success of the Company and its Subsidiaries and
Affiliates by providing incentives to such Employees through the
ownership and performance of Common Stock of the Company.
Toward this objective, the Committee may grant stock options,
SAR, Stock Awards, performance shares, cash bonuses and other
incentive awards to Employees of the Company and its Subsidiaries
and Affiliates on the terms and subject to the conditions set forth
in the Plan. In addition, this Plan is intended to enable the
Company to effectively attract, retain and reward Outside Directors
by providing for grants of Outside Director Awards to Outside
Directors.
2.
DEFINITIONS .
2.1 “
Affiliate ” means any entity (other than the Company
and any Subsidiary) that is designated by the Board as a
participating employer under the Plan, provided that the Company
directly or indirectly owns at least 20% of the combined voting
power of all classes of stock of that entity or at least 20% of the
ownership interests in that entity.
2.2 “
Award ” means any form of stock option, SAR, Stock
Award, performance shares, cash bonus or other incentive award
granted under the Plan, whether singly, in combination, or in
tandem, to a Participant by the Committee pursuant to terms,
conditions, restrictions and limitations, if any, as the Committee
may establish by the Award Notice or otherwise.
2.3 “
Award Notice ” means a written notice from the Company
to a Participant that establishes the terms, conditions,
restrictions, and limitations applicable to an Award in addition to
those established by the Plan and by the Committee’s exercise
of its administrative powers.
2.4 “
Board ” means the Board of Directors of the
Company.
2.5 “
Cause ” means matters which, in the judgment of the
Committee, constitute any one or more of the following: (i)
intoxication while on the job; (ii) theft or dishonesty in the
conduct of the Company’s business; (iii) willful neglect or
negligence in the management of the Company’s business, or
violation of Company race or gender anti-harassment policies; (iv)
violence that results in personal injury; or (v) conviction of a
crime involving moral turpitude.
2.6 “
Change In Control ” means the happening of any of the
following:
a. any person or entity, including a
“group” as defined in Section 13(d)(3) of the Exchange
Act, other than the Company or a wholly-owned Subsidiary, or any
employee benefit plan of the Company or any Subsidiary, becomes the
beneficial owner of the Company’s securities having 50% or
more of the combined voting power of the then outstanding
securities of the Company that may be cast for the election of
directors of the Company (other than as a result of an issuance of
securities initiated by the Company in the ordinary course of
business); or
b. as the result of, or in connection
with, any cash tender or exchange offer, merger or other business
combination, sales of assets or contested election, or any
combination of the foregoing transactions, after the transaction
less than a majority of the combined voting power of the then
outstanding securities of the Company, or any successor corporation
or cooperative or entity, entitled to vote generally in the
election of the directors of the Company, or other successor
corporation or other entity, are held in the aggregate by the
holders of the Company’s securities who immediately prior to
the transaction had been entitled to vote generally in the election
of directors of the Company; or
c. during any period of 2 consecutive
years, individuals who at the beginning of the period constitute
the Board cease for any reason to constitute at least a majority of
the Board, unless the election, or the nomination for election by
the Company’s shareholders, of each director of the Company
first elected during the relevant 2-year period was approved by a
vote of at least 2/3 of the directors of the Company then still in
office who were directors of the Company at the beginning of that
period.
2.7 “
Change In Control Price ” means the highest closing
price (or, if the shares are not traded on an exchange, the highest
last sale price or closing “asked” price) per share
paid for the purchase of Common Stock in a national securities
market during the 60-day period ending on the date the Change In
Control occurs (or, where applicable, the occurrence of the
Potential Change in Control event), as determined by the
Committee.
2.8 “
Code ” means the Internal Revenue Code of 1986, as
amended from time to time.
2.9 “
Committee ” means the Compensation Committee of the
Board, or any other committee designated by the Board, authorized
to administer the Plan under Section 3 of this Plan. The Committee
shall consist of not less than 2 members who shall be appointed by,
and shall serve at the pleasure of, the Board. It is intended that
the directors appointed to serve on the Committee shall be
“independent” as defined by the Company from time to
time, and that they shall be “non-employee directors”
(within the meaning of Rule 16b-3 under the Exchange Act) and
“outside directors” (within the meaning of Code Section
162(m) and its related regulations). However, the mere
fact that a Committee member fails to qualify under any of the
foregoing requirements shall not invalidate any Award made by the
Committee if the Award is otherwise validly made under the
Plan.
2.10 “
Common Stock ” means the $0.01 par value common stock
of the Company.
2.11 “
Company ” means Cracker Barrel Old Country Store, Inc.
or any successor.
2.12 “
Covered Employee ” means an individual who is, with
respect to the Company, an individual defined in Code Section
162(m)(3).
2.13 “
Disability ” has the same meaning as provided in the
long-term disability plan or policy maintained by the Company or if
applicable, most recently maintained, by the Company or if
applicable, a Subsidiary or Affiliate, for the Participant, whether
or not that Participant actually receives disability benefits under
the plan or policy. If no long-term disability plan or
policy was ever maintained on behalf of Participant or if the
determination of Disability relates to an incentive stock option
(within the meaning of Section 8 of this Plan), Disability means
Permanent and Total Disability as defined in Section 22(e)(3) of
the Code. In a dispute, the determination whether a
Participant has suffered a Disability will be made by the Committee
and may be supported by the advice of a physician competent in the
area to which that Disability relates.
2.14 “
Effective Date ” is defined in Section 6.
2.15 “
Employee ” means an employee of the Company, a
Subsidiary or an Affiliate.
2.16 “
Exchange Act ” means the Securities and Exchange Act
of 1934, as amended from time to time.
2.17 “
Fair Market Value ” with respect to the Common Stock,
as of any given date, unless otherwise determined by the Committee
in good faith, means the reported closing sale price of a share of
Common Stock on the automated quotation system or other market or
exchange that is the principal trading market for the Common Stock,
or if no sale of a share of Common Stock is so reported on that
date, the fair market value of a share of Common Stock as
determined by the Committee in good faith.
2.18 “
Immediate Family ” means any child, stepchild,
grandchild, parent, stepparent, grandparent, spouse, sibling,
mother-in-law, father-in-law, son-in-law, daughter-in-law,
brother-in-law, or sister-in-law, and includes adoptive
relationships.
2.19 “
Outside Director ” means a member of the Board who is
not an officer or employee of the Company or any Subsidiary or
Affiliate of the Company.
2.20 “
Outside Director Award ” means either a Director
Option or a Director Stock Award or combination thereof awarded to
an Outside Director under Section 27.
2.21 “
Participant ” means any individual to whom an Award
has been granted by the Committee under this Plan.
2.22 “
Potential Change in Control ” means the happening of
any one of the following:
a. the approval by shareholders of an
agreement by the Company which would result in a Change in Control
of the Company when consummated; or
b. the acquisition of beneficial
ownership, directly or indirectly, by any entity, person or group
(other than the Company or a Subsidiary or any Company or
Subsidiary employee benefit plan, including any trustee of the plan
acting as trustee) of securities of the Company representing 25% or
more of the combined voting power of the then outstanding
securities of the Company (without being accompanied by a formal
statement or public filing disclaiming any intention to obtain or
exercise control of the Company) and the adoption by the Committee
of a resolution to the effect that a Potential Change in Control of
the Company has occurred for purposes of this Plan.
2.23 “
Qualified Performance-Based Award ” means (i) any
stock option or SAR granted under the Plan, or (ii) any other Award
that is intended to qualify for the Section 162(m) Exemption and is
made subject to performance goals based on Qualified Performance
Measures as set forth in Section 13.
2.24 “
Qualified Performance Measures ” means 1 or more of
the performance measures listed in Section 13.2 upon which
performance goals for certain Qualified Performance-Based Awards
may be established by the Committee.
2.25 “
SAR ” is an Award that shall entitle the recipient to
receive a payment equal to the appreciation in value of a stated
number of shares of Common Stock from the price established in the
Award to the market value of that number of shares of Common Stock
on the date of exercise.
2.26 “
Section 162(m) Exemption ” means the exemption from
the limitation on deductibility imposed by Section 162(m) of the
Code that is set forth in Section 162(m)(4)(C) of the Code or any
successor provision thereto.
2.27 “
Section 162(m) Cash Maximum ” means
$5,000,000.
2.28 “
Section 16 Insider ” means a Participant who is
subject to the reporting requirements of Section 16 of the Exchange
Act with respect to the Company.
2.29 “
Stock Award ” means an Award granted pursuant to
Section 10 in the form of shares of Common Stock, restricted shares
of Common Stock or Units of Common Stock.
2.30 “
Subsidiary ” means a corporation or other business
entity in which the Company directly or indirectly has an ownership
interest of 50% or more.
2.31 “
Unit ” means a bookkeeping entry used by the Company
to record and account for the grant of the following Awards until
the Award is paid, canceled, forfeited or terminated, as the case
may be: shares of Common Stock, SARs and performance shares may be
expressed in terms of Units of Common Stock.
The Plan shall be administered by the Committee.
The Committee shall have the discretionary authority to: (a)
interpret the Plan; (b) establish any rules and regulations it
deems necessary for the proper operation and administration of the
Plan; (c) select Employees to become Participants and receive
Awards under the Plan; (d) determine the form of an Award, whether
a stock option, SAR, Stock Award, performance share, cash bonus, or
other incentive award established by the Committee, the number of
shares or Units subject to the Award, all the terms, conditions,
restrictions and limitations, if any, of an Award, including the
time and conditions of exercise or vesting, and the terms of any
Award Notice; (e) determine whether Awards should be granted
singly, in combination or in tandem; (f) grant waivers of Plan
terms, conditions, restrictions and limitations; (g) accelerate the
vesting, exercise or payment of an Award or the performance period
of an Award in the event of a Participant’s termination of
employment or when that action or actions would be in the best
interests of the Company; (h) establish such other types of Awards,
besides those specifically enumerated in Section 2.2, which the
Committee determines are consistent with the Plan’s purpose;
and (i) take all other action it deems necessary or advisable for
the proper operation or administration of the
Plan. Subject to Section 24, the Committee also shall
have the authority to grant Awards in replacement of Awards
previously granted under the Plan or any other executive
compensation plan of the Company or a Subsidiary. All
determinations of the Committee shall be made by a majority of its
members, and its determinations shall be final, binding and
conclusive on all persons, including the Company and
Participants.
The Committee, in its discretion, may delegate
its authority and duties under the Plan to the Chief Executive
Officer or to other senior officers of the Company under conditions
and limitations the Committee may establish; however, only the
Committee may select, grant, and establish the terms of Awards to
Section 16 Insiders or Covered Employees.
Notwithstanding the general authority granted in
this Section 3, the Committee (and any delegate of the Committee)
has no authority to determine terms or conditions of Outside
Director Awards, which shall be governed solely by Section 27 of
this Plan.
Any Employee is eligible to become a Participant
in the Plan. Outside Directors are eligible to receive
awards only pursuant to Section 27 and not pursuant to any other
provisions of this Plan.
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5.
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NUMBER OF
SHARES AVAILABLE .
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The maximum number of shares of Common Stock
that shall be available for grant of Awards under the Plan
(including incentive stock options) during its term shall not
exceed [4.5] million shares, subject to adjustment as provided in
Section 19. Any shares of Common Stock related to Awards
that are settled in cash in lieu of Common Stock shall be available
again for grant under the Plan. Similarly, any shares of
Common Stock related to Awards that terminate by expiration,
forfeiture, cancellation or otherwise without the issuance of the
related shares or are exchanged with the Committee’s
permission for Awards not involving Common Stock, shall be
available again for grant under the Plan. Further, any shares of
Common Stock that are used by a Participant for the full or partial
payment to the Company of the purchase price of Common Stock upon
exercise of a stock option, or for withholding taxes due as a
result of that exercise, shall again be available for Awards under
the Plan. Notwithstanding any provision in the Plan to
the contrary, the maximum number of shares of Common Stock with
respect to 1 or more options and/or SARs that may be granted during
any 1 calendar year under the Plan to any 1 Participant shall be
300,000. For purposes of this limitation, forfeited, canceled
or repriced shares granted to a Participant in any given calendar
year shall continue to be counted against the maximum number of
shares that may be granted to that Participant in that calendar
year. The maximum fair market value of any Awards (other than
options, SARs and cash bonuses) that may be received by a
Participant (less any consideration paid by the Participant for
that Award) during any 1 calendar year under the Plan shall be the
equivalent value of 300,000 shares of Common Stock as of the first
business day of such calendar year. The shares of Common Stock
available for issuance under the Plan may be authorized and
unissued shares.
The Plan shall become effective as of the date
upon which it is approved by the shareholders of the Company (the
“Effective Date”). No Awards or Outside
Director Awards shall be exercisable or payable before the Plan
becomes effective. This Plan shall remain in effect until
terminated by action of the Board.
The Committee shall select, from time to time,
Participants from those Employees who, in the opinion of the
Committee, can further the Plan’s purposes. Once a
Participant is selected, the Committee shall determine the type or
types of Awards to be made to the Participant and shall establish
in the related Award Notices the terms, conditions, restrictions
and limitations, if any, applicable to the Awards in addition to
those set forth in the Plan and the administrative rules and
regulations issued by the Committee.
8.
STOCK OPTIONS .
8.1
Grants . Awards may be granted in the form of
stock options. These stock options may be incentive
stock options within the meaning of Section 422 of the Code, other
tax-qualified stock options, or non-qualified stock options (i.e.,
stock options that are not incentive or other tax-qualified stock
options), or a combination of any of those.
8.2
Terms and Conditions of Options . An option
shall be exercisable in whole or in such installments and at the
times determined by the Committee. The Committee also
shall determine the performance or other conditions, if any, which
must be satisfied before all or part of an option may be exercised.
The price at which Common Stock may be purchased upon exercise of a
stock option shall be established by the Committee, but such price
shall not be less than 100% (or, in the case of any employee who
owns stock possessing more than 10% of the total combined voting
power of all classes of stock of the Company or of any of its
Subsidiaries, not less than 110%) in the case of incentive stock
options, and not less than 85% (or, in the case of a Covered
Employee, not less than 100%) in the case of other stock options,
of the Fair Market Value of the Common Stock on the date of the
stock option grant. Each stock option shall expire not
later than 10 years (or, in the case of an Employee who owns stock
possessing more than 10% of the total combined voting power of all
classes of stock of the Company or any of its Subsidiaries, not
later than 5 years) from its date of grant.
8.3
Restrictions Relating to Incentive Stock Options .
Stock options issued in the form of incentive stock options
shall, in addition to being subject to all applicable terms,
conditions, restrictions and limitations established by the
Committee, comply with Section 422 of the Code. Accordingly,
incentive stock options may only be granted to Employees who are
employees of the Company or a Subsidiary, and the aggregate market
value (determined at the time the option was granted) of the Common
Stock with respect to which incentive stock options are exercisable
for the first time by a Participant during any calendar year (under
the Plan or any other plan of the Company or any of its
Subsidiaries) shall not exceed $100,000 (or other limit required by
the Code). Each incentive stock option shall expire not
later than 10 years from its date of grant.
8.4
Additional Terms and Conditions . The Committee
may, by way of the Award Notice or otherwise, establish other
terms, conditions, restrictions and limitations, if any, on any
stock option Award, provided they are not inconsistent with the
Plan. Without limiting the generality of the foregoing, options may
provide for the automatic granting of new options at the time of
exercise.
8.5
Exercise . The Committee shall determine the
methods by which the exercise price of an option may be paid, the
form of payment, including, without limitation, cash, shares of
Common Stock, or other property (including “cashless
exercise” arrangements, so long as they do not in any way
conflict with the requirements of applicable law), and the methods
by which shares of Common Stock shall be delivered or deemed to be
delivered by Participants; however, if shares of Common Stock are
used to pay the exercise price of a stock option, those shares must
have been held by the Participant for at least 6 months (or any
shorter or longer period necessary to avoid a charge to the
Company’s earnings for financial reporting
purposes).
9.
STOCK APPRECIATION RIGHTS .
9.1
Grants . Awards may be granted in the form of
SARs. The SAR may be granted in tandem with all or a portion of a
related stock option under the Plan (“Tandem SARs”), or
may be granted separately (“Freestanding
SARs”). A Tandem SAR may be granted either at the
time of the grant of the related stock option or at any time
thereafter during the term of the stock option. In the
case of SARs granted in tandem with stock options granted prior to
the grant of the SARs, the appreciation in value is the difference
between the option price of the related stock option and the Fair
Market Value of the Common Stock on the date of exercise. The
number of SARs granted may never exceed the lesser of the number of
shares of Common Stock still available under the Plan at the time
of the SAR grant or 625,000.
9.2
Terms and Conditions of Tandem SARs . A Tandem
SAR shall be exercisable to the extent, and only to the extent,
that the related stock option is exercisable, and the
“exercise price” of that
SAR (the base
from which the value of the SAR is measured at its exercise) shall
be the option price under the related stock option. If a
related stock option is exercised as to some or all of the shares
covered by the Award, the related Tandem SAR, if any, shall be
canceled automatically to the extent of the number of shares
covered by the stock option exercise. Upon exercise of a
Tandem SAR as to some or all of the shares covered by the Award,
the related stock option shall be canceled automatically to the
extent of the number of shares covered by the exercise.
9.3
Terms and Conditions of Freestanding SARs .
Freestanding SARs shall be exercisable in whole or in the
installments and at the times determined by the
Committee. Freestanding SARs shall have a term specified
by the Committee, in no event to exceed 10 years. The
exercise price of a Freestanding SAR shall also be determined by
the Committee; however, that price shall not be less than 100% of
the Fair Market Value of the Common Stock on the date of the
Freestanding SAR grant. The Committee also shall
determine the performance or other conditions, if any, that must be
satisfied before all or part of a Freestanding SAR may be
exercised.
9.4
Deemed Exercise . The Committee may provide
that an SAR shall be deemed to be exercised at the close of
business on the scheduled expiration date of the affected SAR if at
that time the SAR by its terms remains exercisable and, if so
exercised, would result in a payment to the holder of the
SAR.
9.5
Additional Terms and Conditions . The Committee
may, by way of the Award Notice or otherwise, determine such other
terms, conditions, restrictions and limitations, if
