STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT ("Agreement") is made and entered into as
of the 24th day of October, 1996 by and between ROADHOUSE GRILL, INC., a Florida
corporation (the "Company"), and JOHN DAVID TOOLE, III ("Optionee").
W I T N E S S E T H:
WHEREAS, the Optionee is a key employee of the Company;
WHEREAS, subject to the terms and conditions set forth herein, the
Company desires to grant Optionee an option to acquire up to Four Hundred Fifty
Thousand (450,000) shares of the Company's common stock, par value $0.01 per
share ("Common Stock"); and
WHEREAS, the Company has filed a registration statement under the
Securities Act of 1933 pertaining to an initial public offering of the Common
Stock ("IPO") that contemplates that the Company will effect a 3-for-1 reverse
stock split prior to the IPO ("Reverse Split").
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) in hand paid,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereby agree as follows:
1. RECITALS. The forgoing recitals are true and correct and
are hereby incorporated by reference.
2. OPTION. The Company hereby grants Optionee an option ("Option") to
purchase Four Hundred Fifty Thousand (450,000) shares of Common Stock (the
"Option Stock") for Three Dollars and 60/100 ($3.60) per share ("Option Price"),
subject to adjustment for the Reverse Stock Split and for such other adjustments
as hereinafter provided. If the Reverse Stock Split precedes the IPO and both
occur by January 1, 1997, the number of shares of Option Stock shall be adjusted
as provided in Section 6 hereof but the "Option Price" shall be adjusted as of
the date of the consummation of the IPO to be the price to the public per share
in the IPO net of all underwriting discounts and selling concessions,
notwithstanding anything to the contrary in Section 6 hereof. Thereafter and in
all other cases, the Option Stock and Option Price shall be subject to
adjustment as provided elsewhere herein. Except as otherwise provided herein,
the Option shall become exercisable in accordance with Section 3 hereof and,
unless sooner terminated pursuant to this Agreement, shall remain exercisable
until 5:00 p.m. Eastern Time on October 23, 2004 ("Exercise Period").
3. VESTING AND EXERCISE OF OPTION.
A. VESTING. The Option may be exercised for: (i) One
Hundred Fifty Thousand (150,000) shares of the Option Stock beginning one (1)
year after the date hereof; (ii) an additional One Hundred Fifty Thousand
(150,000) shares of the Option Stock beginning two (2)
years after the date hereof; and (iii) an additional One Hundred Fifty Thousand
(150,000) shares of the Option Stock beginning three (3) years after the date
hereof. The Option shall be deemed "vested" as to all Common Stock for which it
is then exercisable.
B. EXERCISE. Optionee may exercise the Option from time to
time for any or all Option Stock for which it is then exercisable by delivering
written notice thereof ("Exercise Notice") to the Company at any time during the
Exercise Period, which Exercise Notice shall specify the number of shares of
Option Stock for which such exercise is made. The Option Notice shall be
accompanied by the Option Price and the amount of any withholding taxes the
Company is required to pay as a result of the exercise of the Option.
C. MANNER OF PAYMENT. The Option Price and the amount of any
such withholding required to be paid by Optionee may be paid at the election of
the Optionee: (i) in cash or by check; (ii) by directing the Company to withhold
shares of Option Stock purchased upon the exercise of such Option, the Fair
Market Value (as hereinafter defined) of which, as of the date of the Exercise
Notice, corresponds to such Option Price and tax withholding liability to be
paid for therewith; or (iii) any combination of (i) or (ii). For purposes of
this Agreement, "Fair Market Value" means, as to any security on a given day,
the average of the closing prices of such security's sales on all domestic
securities exchanges on which such security may at the time be listed, or, if
there have been no sales on any such exchange on such day, the average of the
highest bid and lowest asked prices on all such exchanges at the end of such
day, or, if on such day such security is not so listed, the average of the
representative bid and asked prices quoted in the NASDAQ System as of 4:00 P.M.,
New York time, on such day, or, if on any day such security is not quoted in the
NASDAQ System, the average of the highest bid and lowest asked prices on such
day in the domestic over-the-counter market as reported by the National
Quotation Bureau, Incorporated, or any similar successor organization, or, if
the security is not regularly traded in a public market, as determined by a
valuation prepared by an independent expert mutually agreeable to the Optionee
and the Company.
4. EFFECT OF CERTAIN EVENTS ON VESTING AND TERMINATION.
A. CHANGE OF CONTROL. In the event of a Change of Control (as
hereinafter defined), the Option shall immediately be fully vested and
exercisable for all Option Stock and shall thereafter be exercisable as to all
shares of Option Stock for which the Option has not yet been exercised. For
purposes of this Agreement, "Change of Control" shall mean if: (i) the Company
agrees to sell all or substantially all of its assets for cash or property or
for a combination of cash and property; (ii) the Company agrees to any merger,
consolidation, reorganization, division or other Corporate Transaction (as
hereinafter defined) in which the holders of the Company's Common Stock become
entitled to receive, with respect to their Common Stock, cash, securities or
assets other than, or in addition to, their Common Stock, or in which the
Company will not be the surviving entity; (iii) the approval by the shareholders
of the Company of any plan or proposal for the liquidation or dissolution of the
Company; or (iv) the acquisition by any person or group (as that term is defined
in the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the
rules promulgated pursuant to that act) in a single transaction or a series of
transactions of 30% or more in voting power of the outstanding
stock of the Company and, within two years after the last of such transactions
took place, the individuals who constituted the Board of Directors of the
Company as of immediately prior to the first of such transactions cease for any
reason to constitute at least a majority of the Board of Directors.
B. TERMINATION FOR CAUSE. In the event of a termination of
Optionee's employment with the Company by the Company for "Cause," as defined in
Optionee's Employment Agreement with the Company dated as of October 24, 1996
("Employment Agreement"), or in the event Optionee's employment under the
Employment Agreement is terminated by Optionee without "Cause" (as defined
therein), then the Option may be exercised for the Option Stock for which the
Option is then exercisable until the expiration of the three (3) month period
immediately following the date of such termination of employment.
C. TERMINATION BECAUSE OF DEATH OR PERMANENT DISABILITY OF
OPTIONEE. In the event of a termination of Optionee's employment with the
Company because of his Permanent Disability (as defined in the Employment
Agreement) or death, then the Option shall immediately be fully vested and
exercisable as to all shares of Option Stock for which the Option has not been
exercised, and shall remain exercisable until the expiration of the twelve (12)
month period immediately following the date of such termination of employment.
D. OTHER TERMINATION OF EMPLOYMENT. Upon expiration of the
term of Optionee's employment under the Employment Agreement, termination by
Optionee of the Employment Agreement with Cause, termination by the Company
other than for Cause or because of Optionee's death or Permanent Disability,
termination by mutual consent of Company and Optionee, or any other termination
of Optionee's employment with the Company other than by the Company for Cause,
by Optionee without Cause, or as a result of Optionee's death or Permanent
Disability, the Option shall immediately be fully vested and exercisable as to
all Option Stock for which the Option has not been exercised, and shall remain
exercisable until 5:00 p.m.
Eastern time on October 23, 2004.
5. CORPORATE TRANSACTIONS. While this Option is outstanding (whether or
not then vested), the Company shall give Optionee thirty (30) days prior written
notice of each Corporate Transaction as a result of which the holders of the
Common Stock will become entitled to receive, with respect to their Common
Stock, cash, securities or assets other than, or in addition to, their Common
Stock. Optionee shall be entitled at any time prior to such Corporate
Transaction to exercise the Option for any or all Option Stock (which exercise
may be conditioned by Optionee upon the consummation of the Corporate
Transaction), which exercise (and the issuance of the Option Stock pursuant
thereto) shall be deemed to have occurred immediately before the record date for
determining the holders of the Common Stock entitled to receive such cash,
securities or assets because of such Corporate Transaction.
6. SUBDIVISION OR COMBINATION OF COMMON STOCK. If the Company at any
time subdivides (by any stock split, stock dividend, recapitalization or
otherwise) one or more classes of its outstanding shares of Common Stock into a
greater number of shares, the Option Price in effect immediately prior to such
subdivision will be proportionately reduced and the number of
shares of Option Stock obtainable upon exercise of the Option will be
proportionately increased. If the Company at any time combines (by reverse stock
split or otherwise) one or more classes of its outstanding shares of Common
Stock into a smaller number of shares, the Option Price in effect immediately
prior to such combination will be proportionately increased (except, if the
Reverse Split precedes the IPO and both occur by January 1, 1997, the Option
Price shall be as provided in Section 2 hereof) and the number of shares of
Common Stock obtainable upon exercise of the Option will be proportionately
7. REGISTRATION OF OPTION STOCK. In the event that any registration
statement under the Securities Act or any applicable State Securities Law is
filed with respect to Company's securities issued or issuable to employees under
any Company Employee Stock Option Plan, the Options and Option Stock issued or
issuable hereunder shall also be included in such registration statement, as if
the Options granted hereunder where granted under such Stock Option Plan.
8. TRANSFERABILITY. The Option will not be assignable or transferable
other than by will or the laws of descent and distribution or pursuant to a
qualified domestic relations order as defined by the Code or Title I of the
Employee Retirement Income Security Act of 1974, as amended. In the event the
Option is transferred by will or the laws of descent, the Option may be
exercised only by an executor or administrator or by the person or persons who
shall have acquired the Option directly from the Optionee by bequest or
9. RESTRICTIONS ON RESALES. The Optionee acknowledges that the Option
and the Option Stock have not been requested under the Securities Act of 1933,
as amended ("Securities Act") or applicable state securities laws and may not be
resold except pursuant to registration under the Securities Act and such state
securities laws or an exemption therefrom.
10. RIGHTS OF THE OPTIONEE. The grant of this Option, execution of this
Agreement or exercise of any portion of this Option shall not confer upon the
Optionee any right to, or guaranty of, a position as an employee, consultant,
advisor or director of the Company or any of its subsidiaries.
A. NOTICES. All notices, demands or other
communications given hereunder shall be in writing and shall be deemed to have
been duly given only upon hand delivery thereof or upon the first business day
after mailing by United States registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
To Company: Roadhouse Grill, Inc.
6600 North Andrews Avenue, Suite 160
Fort Lauderdale, FL 33309
To Optionee: John David Toole, III
Roadhouse Grill, Inc.
6600 North Andrews Avenue, Suite 160
Fort Lauderdale, FL 33309
or to such other address or such other person as any party shall designate, in
writing, to the other for such purposes and in the manner hereinabove set forth.
B. AMENDMENT. The parties hereby irrevocably agree
that no attempted amendment, modification, termination, discharge or change
(collectively, "Amendment") of this Agreement shall be valid and effective,
unless the parties shall unanimously agree in writing to such Amendment.
C. NO WAIVER. No waiver of any provision of this
Agreement shall be effective unless it is in writing and signed by the party
against whom it is asserted, and any such written waiver shall only be
applicable to the specific instance to which it relates and shall not be deemed
to be a continuing or future waiver.
D. GOVERNING LAW. This Agreement shall be construed
in accordance with the laws of the State of Florida and any proceeding arising
between the parties in any manner pertaining or related to this Agreement shall,
to the extent permitted by law, be held in Broward County, Florida.
E. FURTHER ASSURANCES. The parties hereto will execute
and deliver such further instruments and do such further acts and things as may
be reasonably required to carry out the intent and purposes of this Agreement.
F. ENTIRE AGREEMENT. This Agreement sets forth all
the promises, covenants, agreements, conditions and understandings between the
parties hereto, and supersedes all prior and contemporaneous agreements,
understandings, inducements or conditions, expressed or implied, oral or
written, between the parties with respect to the matters contained herein.
G. PREVAILING PARTY. If any party hereto is required
to engage in litigation against any other party hereto, either as a plaintiff or
as defendant, in order to enforce or defend any rights under this Agreement and
such litigation results in a final judgment in favor of such party ("Prevailing
Party"), then the party or parties against whom said final judgment is obtained
shall reimburse the Prevailing Party for all direct, indirect or incidental
expenses incurred including, but not limited to all attorneys' fees, paralegals'
fees, court costs and other expenses incurred throughout all negotiations,
trials or appeals undertaken in order to enforce the Prevailing Party's rights
H. BINDING EFFECT; ASSIGNMENT. This Agreement shall
be binding upon the parties hereto, their beneficiaries, heirs and
administrators and inure to the benefit of Optionee and his assigns, and shall
be binding upon the Company, its successors and assigns.
I. JOINT DRAFTING RESPONSIBILITY. This Agreement is the result
of the joint efforts and negotiations of the parties hereto, with each party
being represented or having the opportunity to be represented by legal counsel
of its own choice. The parties agree that the rule of judicial interpretation to
the effect that any ambiguity or uncertainty contained in an agreement is to be
construed against the party who drafted the Agreement shall not be applied in
the event of any disagreement or dispute arising out of this Agreement.
J. INCENTIVE STOCK OPTION PLAN. In the event that the
Company adopts a Stock Option plan that permits the issuance of incentive stock
options within the meaning of Section 422 of the Internal Revenue Code of 1986,
as amended, Optionee shall be entitled to exchange the unexercised options
granted hereunder for incentive stock options granted under such plan which
shall be upon the same terms and conditions as are set forth herein, except for
such changes thereto as are necessary to qualify them as incentive stock options
or to permit their issuance under such plan.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year set forth above.
Signed, Sealed and Delivered
in the Presence of: COMPANY:
ROADHOUSE GRILL, INC., a
JOHN DAVID TOOLE, III