RM
RESTAURANT HOLDING CORP.
1. Purposes of the
Plan. This Stock Option Plan (the “ Plan ”)
is designed to provide an incentive to key employees (including
managers and officers who are key employees) of RM Restaurant
Holding Corp., a Delaware corporation (the “ Company
”), or any of its Subsidiaries (as defined in
Paragraph 21 ) and consultants and board members who
are not employees of the Company, and to offer an additional
inducement in obtaining the services of such persons. The Plan
provides for the grant of options to acquire shares of Non-Voting
Common Stock (as defined in Paragraph 21 hereof) of the
Company which may be subject to contingencies or restrictions.
2. Subject to the
Plan. Subject to the provisions of Paragraph 13 ,
the aggregate number of shares of Non-Voting Common Stock for which
options may be granted under the Plan shall not exceed 100,000
shares. Such shares of Non-Voting Common Stock may, in the
discretion of the Board of Directors of the Company (the “
Board of Directors ” or the “ Board
”), consist either in whole or in part of authorized but
unissued shares of Non-Voting Common Stock or shares of Non-Voting
Common Stock held in the treasury of the Company. Subject to the
provisions of Paragraph 14 , any share of Non-Voting
Common Stock underlying an option granted under this Plan which for
any reason expires, is canceled, forfeited, or is terminated
unexercised or which ceases for any reason to be exercisable, shall
again become available for the granting of options under the Plan.
The Company shall at all times during the term of the Plan reserve
and keep available such number of shares of Non-Voting Common Stock
as will be sufficient to satisfy the requirements of the Plan
.
3. Administration of the
Plan. The Plan shall be administered by the Board of Directors
or a committee of the Board of Directors that is composed solely of
two or more Non-Employee Directors as that term is defined in the
rules and regulations promulgated under Section 16(b) of the
Exchange Act (the Board of Directors and such committee being
referred to collectively as the “ Committee ”).
A majority of the members of the Committee shall constitute a
quorum, and the acts of a majority of the members present at any
meeting at which a quorum is present, and any acts approved in
writing by all members of the Committee without a meeting, shall be
the acts of the Committee.
Subject
to the express provisions of the Plan and the grant agreement
referred to in Paragraph 12 hereof (the “
Agreement ”), the Committee shall have the authority,
in its sole discretion, to make all determinations relating to the
Plan, including, but not limited to,
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the right to determine: the key employees of
the Company (or its Subsidiaries), consultants and members of the
Board, who shall be granted options; the type of option to be
granted; the times when an option shall be granted; whether the
options comply with requirements of Code Section 409A; the
number of shares of Non-Voting Common Stock to be subject to each
option; the term of each option; the date each option shall vest
and become exercisable; whether an option shall be exercisable in
whole, in part or in installments and, if in installments, the
number of shares of Non-Voting Common Stock to be subject to each
installment, whether the installments shall be cumulative, the date
each installment shall become exercisable and the term of each
installment; whether to accelerate the date of exercise of any
option or installment; whether shares of Non-Voting Common Stock
may be issued upon the exercise of an option as partly paid and, if
so, the dates when future installments of the exercise price shall
become due and the amounts of such installments; the exercise price
of each option; the form of payment of the exercise price; whether
to restrict the sale or other disposition of the shares of
Non-Voting Common Stock acquired upon the exercise of an option
and, if so, whether and under what conditions to waive any such
restriction; whether and under what conditions to subject all or a
portion of the grant or exercise of an option or the shares of
Non-Voting Common Stock acquired pursuant to the exercise of an
option to the fulfillment of certain restrictions or contingencies
as specified in the Agreement, including without limitation,
restrictions or contingencies relating to entering into a covenant
not to compete with the Company, any of its Subsidiaries or a
Parent (as defined in Paragraph 21 ), to financial
objectives for the Company, any of its Subsidiaries or a Parent or
any of its affiliates, a division of any of the foregoing, a
product line or other category, and/or to the period of continued
employment of the optionee with the Company, any of its
Subsidiaries or a Parent or any of its affiliates, and to
determine, in each case, whether such limitations, restrictions or
contingencies have been met; whether an optionee is Disabled (as
defined in Paragraph 21 ); the amount, if any,
necessary to satisfy the obligation of the Company, a Subsidiary or
Parent to withhold taxes or other amounts; the fair market value
(as defined in Paragraph 21 hereof) of a share of
Non-Voting Common Stock; to construe the respective Agreement and
the Plan; with the consent of the optionee, to cancel or modify an
option, provided , that the modified provision is permitted
to be included in an option granted under the Plan on the date of
the modification, and further , provided , that in
the case of a modification, such option as modified would be
permitted to be granted on the date of such modification under the
terms of the Plan; to prescribe, amend and rescind rules and
regulations relating to the Plan; and to make all other
determinations necessary or advisable for administering the Plan.
Any controversy or claim arising out of or relating to the Plan,
any option granted under the Plan or any Agreement shall be
determined unilaterally by the Committee in its sole discretion.
The determinations of the Committee on the matters referred to in
this Paragraph 3 shall be conclusive and binding on the
parties. No member or former member of the Committee shall be
liable for any action, failure to act or determination made in good
faith with respect to the Plan, any Agreement or any option
hereunder.
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The
Company may establish a committee of outside directors meeting the
requirements of Code Section 162(m) to (i) approve the grant
of options that might reasonably be anticipated to result in the
payment of employee remuneration that would otherwise exceed the
limit on employee remuneration deductible for income tax purposes
by the Company pursuant to Code Section 162(m) and
(ii) administer the Plan. In such event, the powers reserved
to the Committee in the Plan shall be exercised by such
compensation committee. In addition, options under the Plan shall
be granted upon satisfaction of the conditions to such grants
provided pursuant to Code Section 162(m) and any Treasury
Regulations promulgated thereunder.
It
is the Company’s intent that the options not be treated as a
nonqualified deferred compensation plan that fails to meet the
requirements of Section 409A(a)(2), (3) or (4) of
the Code and that any ambiguities in construction be interpreted in
order to effectuate such intent. Options under the Plan shall
contain such terms as the Committee determines are appropriate to
comply with the requirements of Section 409A of the Code. In
the event that, after the issuance of an option under the Plan,
Section 409A of the Code or regulations thereunder are issued
or amended, or the Internal Revenue Service or Treasury Department
issues additional guidance interpreting Section 409A of the
Code, the Committee may modify the terms of any such previously
issued option to the extent the Committee determines that such
modification is necessary to comply with the requirements of
Section 409A of the Code.
4. Eligibility. The
Committee may from time to time, in its sole discretion, consistent
with the purposes of the Plan, grant options to (a) key
employees (including officers and managers or directors who are key
employees) of the Company or any of its Subsidiaries,
(b) consultants to the Company or any of its Subsidiaries or
(c) members of the Board. Such options granted shall cover
such number of shares of Non-Voting Common Stock as the Committee
may determine, in its sole discretion, as set forth in the
applicable Agreement.
5. Non-qualified
Options. It is the Company’s intent that only
Non-qualified Stock Options, and not “incentive stock
options” within the meaning of Section 422A of the Code,
be granted under the Plan and that any ambiguities in construction
be interpreted in order to effectuate such intent. The Committee
may from time to time grant to eligible participants Non-qualified
Stock Options. The options granted shall take such form as the
Committee shall determine, subject to the terms and conditions
herein.
6. Exercise Price. The
exercise price of the shares of Non-Voting Common Stock under each
option shall be determined by the Committee, in its sole
discretion, and set forth in the applicable Agreement.
7. Term. The term of
each option granted pursuant to the Plan shall be such term as is
established by the Committee, in its sole discretion, as set forth
in the applicable Agreement; provided , however ,
that the term of each option granted pursuant to the Plan shall be
for a period not exceeding 10 years from the date of grant
thereof; and further , provided , that options shall
be subject to earlier termination as hereinafter provided.
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8. Exercise. An option
(or any part or installment thereof), to the extent then
exercisable, shall be exercised by giving written notice to the
Company, c/o Sun Capital Partners Management IV, LLC, 5200 Town
Center Circle, Suite 470, Boca Raton, Florida 33486,
Attention: C. Deryl Couch, in the form established by the Committee
and accompanied by payment in full of the aggregate exercise price
therefor (a) in cash or by certified check or (b) in such
other form as the Committee may approve. The Company shall not be
required to issue any shares of Non-Voting Common Stock pursuant to
any such option until all required payments, including any required
withholding, have been made and all required actions have been
taken.
A
person entitled to receive shares of Non-Voting Common Stock upon
the exercise of an option shall not have the rights of a
stockholder of the Company with respect to such stock until the
date of issuance of a certificate for such shares of Non-Voting
Common Stock, or in the case of uncertificated shares of Non-Voting
Common Stock, an entry is made on the books of the Company’s
transfer agent representing such shares.
In
no case may a fraction of a share of Non-Voting Common Stock be
purchased or issued under the Plan.
9. Termination of
Relationship.
(a)
Employees and Consultants . Except as may otherwise be
expressly provided in the applicable Agreement, an optionee whose
relationship with the Company, its Parent or Subsidiaries as an
employee or a consultant has terminated for any reason (other than
as a result of the death or Disability of the optionee) may
exercise his options, to the extent exercisable on the date of such
termination, on the date of termination or at any time on or before
the 15 th day of
the third calendar month following the date of termination, but not
thereafter and in no event after the date the option would
otherwise have expired; provided, however, that if the
Optionee is a “specified employee” as defined in
Section 409A(a)(2)(B)(i) of the Code, then the option shall
instead be exercisable on the date that is six months after the
date of termination (or, if earlier, death of the optionee);
provided , further , that (i) if such
relationship is terminated for Cause (as defined in
Paragraph 21 ), such option shall terminate on the day
immediately before the date of such termination and (ii) if
such relationship is terminated without the consent of the Company,
such option shall terminate on the day of such termination. Except
as may otherwise be expressly provided in the applicable Agreement,
options granted under the Plan to an employee or consultant shall
not be affected by any change in the status of the optionee so long
as the optionee continues to be an employee of, or a consultant to,
the Company, or any of the Subsidiaries or a Parent (regardless of
having changed from one to the other or having been transferred
from one corporation to another).
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(b)
Board Members . Except as may otherwise be expressly
provided in the applicable Agreement, an optionee whose
relationship with the Company as a Board member ceases for any
reason (other than as a result of his death or Disability) may
exercise his options, to the extent exercisable on the date of such
termination, on the date of termination or at any time on or before
the 15 th day of
the third calendar month following the date of termination, but not
thereafter and in no event after the date the option would
otherwise have expired; provided, however, that if the
Optionee is a “specified employee” as defined in
Section 409A(a)(2)(B)(i) of the Code, then the option shall
instead be exercisable on the date that is six months after the
date of termination (or, if earlier, death of the optionee);
provided , further , that (i) if such
relationship is terminated for Cause, such option shall terminate
on the day immediately before the date of such termination and
(ii) if such relationship is terminated without the consent of
the Company, such option shall terminate on the day of such
termination. Except as may otherwise be expressly provided in the
applicable Agreement, options granted to a Board member shall not
be affected by the optionee becoming an employee of, or consultant
to, the Company, any of its Subsidiaries or a Parent.
(c)
General . Nothing in the Plan or in any option granted under
the Plan shall confer on any optionee any right to continue in the
employ of, or as a consultant to, the Company, any of its
Subsidiaries or a Parent, or as a manager or director of the
Company, or interfere in any way with any right of the Company, any
of its Subsidiaries or a Parent to terminate the optionee’s
relationship at any time for any reason whatsoever without
liability to the Company, any of
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