Exhibit 10.12
GORDON BIERSCH BREWERY RESTAURANT
GROUP, INC.
2005 STOCK INCENTIVE
PLAN
FORM OF STOCK OPTION
AGREEMENT
This Agreement dated as of
(the “ Date of Grant ”) between Gordon Biersch
Brewery Restaurant Group, Inc., a Tennessee corporation (the
“ Company ”) and
(the “ Participant ”).
1. Award of Option . The
Company hereby awards to the Participant, an option (the “
Option ”) to purchase up to an aggregate of
shares (the “ Shares ”) of the Company’s
common stock, no par value per share (the “Common
Stock”), on the terms and conditions hereinafter set forth,
at the purchase price of $
per share (the “ Exercise Price ”). The Option
is intended to qualify as an incentive stock option within the
meaning of Section 422 of the Internal Revenue Code of 1986,
as amended (the “ Code ”).
2. The Plan . The Plan, a
copy of which is available by contacting the Company’s
Secretary, or the then current administrator of the Plan (the
“ Plan Administrator ”) is incorporated herein
by reference and is made a part of this Agreement as if fully set
forth herein. This Agreement is subject to, and the Company and the
Participant agree to be bound by, all of the terms and conditions
of the Plan as the same exists at the time into which this
Agreement was entered. The Plan shall control in the event there is
any express conflict between the Plan and the terms hereof, and on
such matters that are not expressly covered in this Agreement.
Subsequent amendments to the Plan shall not adversely affect the
Participant’s rights under this Agreement.
3. Exercise of Option
.
(a) Exercisability of Option
. The Option to purchase the Shares is exercisable in accordance
with Schedule I hereto.
The periods of time following the
Participant’s cessation of service, death or disability
during which the Option remains exercisable as provided in
subsections (c) and (d) below, shall not be included for
purposes of determining the exercisability of the Option under this
subsection (a).
(b) Expiration Date . Except
as otherwise provided in this Agreement, the Option may not be
exercised after the date that is the tenth anniversary of the Date
of Grant (the “ Expiration Date ”).
(c) Termination of Employment
. If the Participant ceases to be an Employee (as defined in the
Plan) for any reason other than death or disability or discharge
for “cause”, as provided in subsection (e) below,
the right to exercise the
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Option shall terminate three months after such
cessation (but in no event after the Expiration Date).
(d) Exercise Period Upon Death or
Disability . If the Participant dies or becomes disabled
(within the meaning of Section 22(e) (3) of the Code)
prior to the Expiration Date, while he or she is an Employee, or if
the Participant dies within three months after the Participant
ceases to be an Employee (other than as a result of a discharge for
“cause” as specified in subsection (e) below), the
Option shall be exercisable, within the period of one year
following the date of death or disability of the Participant (but
in no event after the Expiration Date), by the Participant, the
Participant’s legal representative (in the event of legal
incapacity) or by the person to whom the Option is transferred by
will or the laws of descent or distribution.
(e) Discharge for Cause . If
the Participant, prior to the Expiration Date, ceases to be an
Employee because he or she is discharged for “cause”
(as defined below, if not otherwise defined in an employment
agreement between the Participant and the Company then in effect),
the right to exercise the Option shall terminate immediately upon
such cessation of employment. “ Cause ” shall
mean (i) any material breach by the Participant of any of
his/her material obligations under the Participant’s
employment agreement with the Company (if any), (ii) failure
by the Participant to perform satisfactorily the duties required by
and appropriate for his/her position as determined by the Board and
such failure to perform has not been cured by the Participant
within 30 days following receipt of written notice thereof from the
Board, or (iii) other conduct of the Participant involving any
willful misconduct with respect to the Company, including, without
limitation, fraud, embezzlement, theft or proven dishonesty in the
course of his employment or conviction of a felony.
(f) Notice Concerning ISO
Treatment . If this option is designated as an incentive stock
option within the meaning of Section 422 of the Code, it
ceases to qualify for favorable tax treatment as an incentive stock
option to the extent certain requirements are not met. Loss of
favorable tax treatment may occur if the option is exercised
(i) more than three months after the date the Participant
ceases to be an Employee for any reason other than death or
permanent and total disability (as defined in section 22(e)(3) of
the Code), (ii) more than 12 months after the date the
Participant ceases to be an Employee by reason of such permanent
and total disability or (iii) after the Participant has been
on a leave of absence for more than 90 days, unless the
Participant’s reemployment rights are guaranteed by statute
or contract. In addition, favorable tax treatment may be lost if
any stock acquired under the option plan is disposed of by the
Participant (i) within two years of the date of grant of the
option or (ii) within one year of the date of exercise of the
option. Participants are strongly urged to consult their tax
advisors with respect to the various requirements necessary to
obtain incentive stock option treatment and the consequences of
failing to meet such requirements.
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4. Manner of Exercise
.
(a) Exercise Procedure . The
Option shall be exercised by the Participant’s delivery of
written notice of his or her election to exercise this Option in
substantially the form of Notice of Stock Option Exercise attached
to this Agreement to the chief financial officer of the Company,
specifying the number of Shares to be purchased and the aggregate
Exercise Price to be paid therefor and accompanied by payment in
full in accordance wi
