NON-QUALIFIED STOCK OPTION
AGREEMENT
THIS STOCK OPTION AGREEMENT (this
“Agreement”), dated as of ___________ (the “Grant
Date”) is by and between O’Charley’s Inc., a
Tennessee corporation (the “Company”), and __________
(the “Optionee”). Capitalized terms used but not
defined in this Agreement shall have the meaning ascribed to such
terms in the O’Charley’s Inc. 2008 Equity and Incentive
Plan (the “Plan”).
1.
Grant of Option . The Company hereby grants to Optionee a
Non-Qualified Stock Option (the “Option”), exercisable
in whole or in part, to purchase ________ shares of the
Company’s Common Stock for an exercise price of $_____ per
share.
2.
Option Plan . The Option is granted under the Plan and is
subject to the terms and conditions set forth in the Plan. In the
event any of the provisions hereof conflict with or are
inconsistent with the provisions of the Plan, the provisions of the
Plan shall be controlling.
(a) The
Option shall vest and become exercisable [in ________ equal,
annual installments commencing on the first anniversary of the
Grant Date (each such anniversary a “Vesting Date”) /
in full on the third anniversary of the Grant Date (the
“Vesting Date”)] .
(b) Upon
the occurrence of a Change in Control as defined in the Plan, the
Option, to the extent not previously exercisable and vested, shall
be deemed vested and exercisable immediately.
(c) The
Option will expire ten years from the Grant Date of the Option with
respect to any then unexercised portion thereof, unless terminated
earlier as provided herein or in the Plan.
4.
Manner of Exercise . The Option shall be exercised by the
Optionee (or other party entitled to exercise the Option under
Section 5 of this Agreement) by delivering written
notice to the Company stating the number of shares of Common Stock
to be purchased, the person or persons in whose name the shares are
to be registered, and each such person’s address and social
security number. Such notice shall not be effective unless
accompanied by the full purchase price for all shares so purchased.
The purchase price shall be payable (i) in cash or cash equivalents
(payment by certified check, cashier’s check, postal money
order or wire transfer shall be considered payment in cash
equivalents); (ii) by transfer, either actually or by attestation,
to the Company of Shares, valued at the Fair Market Value of such
Shares on the date of exercise (or next succeeding trading date, if
the date of exercise is not a trading date), together with any
applicable withholding taxes; (iii) by a combination of such cash
(or cash equivalents) and such Shares; provided, however, that the
Optionee shall not be entitled to tender Shares pursuant to
successive, substantially simultaneous exercises of an Option or
any other stock option of the Company; or (iv) by withholding
from
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Optionee sufficient Shares, subject
to such Option, having an aggregate Fair Market Value at the time
of exercise (or next succeeding trading date, if the date of
exercise is not a trading date) equal to the total Option Price.
Subject to applicable securities laws and Company policy, the
Option may also be exercised by delivering a notice of exercise of
the Option and simultaneously selling the Shares thereby acquired,
pursuant to a brokerage or similar agreement approved in advance by
proper officers of the Company, using the proceeds of such sale as
payment of the Option Price, together with any applicable
withholding taxes. Until the Optionee has been issued the Shares
subject to such exercise, he or she shall possess no rights as a
stockholder with respect to such Shares.
5.
Limited Transferability of Option . The Option shall not be
transferable by the Optionee without the prior written consent of
the Committee other than (i) transfers by the Optionee to a member
of his or her Immediate Family (as defined below) or a trust for
the benefit of the Optionee or a member of his or her Immediate
Family; or (ii) transfers by will or by the laws of descent and
distribution. The terms of the Option shall be binding on the
executors, administrators, heirs and successors of the Optionee. As
used herein, the term “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 shall
include adoptive relationships.
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6.
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Termination of
Employment .
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(a)
Termination by Death . If the Optionee’s employment by
the Company and any Subsidiary terminates by reason of death, the
Option may thereafter be exercised, to the extent the Option was
exercisable at the time of death, by the legal representative of
the estate or by the legatee of the Optionee under the will of the
Optionee, for a period of one year from the date of such death or
until the expiration of the stated term of the Option, whichever
period is shorter.
(b)
Termination by Reason of Retirement or Disability . If the
Optionee’s employment by the Company terminates by reason of
Retirement or Disabil
