1997 Equity Incentive Plan - NE Restaurant Co. Inc.
NE RESTAURANT COMPANY, INC.
1997 EQUITY INCENTIVE PLAN
SECTION 1. PURPOSE
-------
The purpose of the NE Restaurant Company, Inc. 1997 Equity Incentive Plan
(the "Plan") is to attract and retain key employees, directors, stockholders,
advisors and consultants, to provide an incentive for them to assist NE
Restaurant Company, Inc. (the "Corporation") to achieve long-range performance
goals, and to enable them to participate in the long-term growth of the
Corporation.
SECTION 2. DEFINITIONS
-----------
(a) "Affiliate" means any business entity in which the Corporation owns directly
or indirectly 50% or more of the total combined voting power or has a
significant financial interest as determined by the Board.
(b) "Annual Meeting" means the annual meeting of shareholders or special meeting
in lieu of annual meeting of shareholders at which one or more directors are
elected.
(c) "Award" means any Option, Stock Appreciation Right, Performance or Award
Share, or Restricted Stock awarded under the Plan.
(d) "Award Share" means a share of Common Stock awarded to an employee,
director, advisor or consultant without payment therefor.
(e) "Board" means the Board of Directors of the Corporation.
(f) "Code" means the Internal Revenue Code of 1986, as amended from time to
time.
(g) "Committee" means a committee of not less than three members of the Board
which may be appointed by the Board from time to time to administer the
Plan.
(h) "Common Stock" or "Stock" means the Common Stock, par value $.01 per share,
of the Corporation.
(i) "Corporation" means NE Restaurant Company, Inc.
(j) "Designated Beneficiary" means the beneficiary designated by a Participant,
in a manner determined by the Board, to receive amounts due or exercise
rights of the Participant in the event of the Participant's death. In the
absence of an effective designation by a Participant, Designated Beneficiary
shall mean the Participant's estate.
(k) "Fair Market Value" means, with respect to Common Stock or any other
property, the fair market value of such property as determined by the Board
in good faith or in the manner established by the Board from time to time.
(l) "Nonqualified Stock Option" means an option to purchase shares of Common
Stock, awarded to a Participant under Section 6, which is not intended to
meet the requirements of Section 422 of the Code or any successor provision.
<PAGE>
(m) "Option" means a Nonqualified Stock Option.
(n) "Participant" means a person selected by the Board to receive an Award under
the Plan.
(o) "Performance Cycle" or "Cycle" means the period of time selected by the
Board during which performance is measured for the purpose of determining
the extent to which an award of Performance Shares has been earned.
(p) "Performance Shares" mean shares of Common Stock which may be earned by the
achievement of performance goals, awarded to a Participant under Section 8.
(q) "Restricted Period" means the period of time selected by the Board during
which an award of Restricted Stock may be forfeited to the Corporation.
(r) "Restricted Stock" means shares of Common Stock subject to forfeiture,
awarded to a Participant under Section 9.
(s) "Stock Appreciation Right" or "SAR" means a right to receive any excess in
value of shares of Common Stock over the reference price, awarded to a
Participant under Section 7.
(t) "Stock Unit" means an award of Common Stock and/or other rights granted as
units that are valued in whole or in part by reference to, or otherwise
based on, the value of Common Stock, awarded to a Participant under Section
10.
SECTION 3. ADMINISTRATION
--------------
The Board shall have authority to adopt, alter and repeal such
administrative rules, guidelines and practices governing the operation of the
Plan as it shall from time to time consider advisable, and to interpret the
provisions of the Plan. The Board's decisions shall be final and binding. The
Board, in its discretion at any time, may appoint a Committee to administer the
Plan. To the extent permitted by applicable law, the Board may delegate to the
Committee the power to make Awards to Participants and all determinations under
the Plan with respect thereto.
SECTION 4. ELIGIBILITY
-----------
All employees, directors, stockholders, advisors and consultants of the
Corporation or any Affiliate capable of contributing significantly to the
successful performance of the Corporation, other than a person who has
irrevocably elected not to be eligible, are eligible to be Participants in the
Plan.
SECTION 5. STOCK AVAILABLE FOR AWARDS
--------------------------
(a) Subject to adjustment under subsection (b), Awards may be made under the
Plan, of Options to acquire not in excess of 500,000 shares of Common Stock.
Other Awards may be made as the Board may determine, provided that a maximum
of 500,000 shares of Common Stock may be issued under this Plan. If any
Award in respect of shares of Common Stock expires or is terminated
unexercised or is forfeited for any reason or settled in a manner that
results in fewer shares outstanding than were initially awarded, including
without limitation the surrender of shares in payment for the Award or any
tax obligation thereon, the shares subject to such Award or so surrendered,
as the case may be, to the extent of such expiration, termination,
2
<PAGE>
forfeiture or decrease, shall again be available for award under the Plan.
Common Stock issued through the assumption or substitution of outstanding
grants from an acquired corporation shall not reduce the shares available
for Awards under the Plan. Shares issued under the Plan may consist in whole
or in part of authorized but unissued shares or treasury shares.
(b) In the event that the Board determines that any stock dividend,
extraordinary cash dividend, creation of a class of equity securities,
recapitalization, reorganization, merger, consolidation, split-up, spin-off,
combination, exchange of shares, warrants or rights offering to purchase
Common Stock at a price substantially below fair market value, or other
similar transaction affects the Common Stock such that an adjustment is
required in order to preserve the benefits or potential benefits intended to
be made available under the Plan, then the Board shall equitably adjust any
or all of (i) the number and kind of shares in respect of which Awards may
be made under the Plan, (ii) the number and kind of shares subject to
outstanding Awards, and (iii) the award, exercise or conversion price with
respect to any of the foregoing, and if considered appropriate, the Board
may make provision for a cash payment with respect to an outstanding Award,
provided that the number of shares subject to any Award shall always be a
whole number.
SECTION 6. STOCK OPTIONS
-------------
(a) Subject to the provisions of the Plan, the Board may award Nonqualified
Stock Options and determine the number of shares to be covered by each
Option, the option price therefor and the conditions and limitations
applicable to the exercise of the Option.
(b) The Board shall establish the option price at the time each Option is
awarded.
(c) Each Option shall be exercisable at such times and subject to such terms and
conditions as the Board may specify in the applicable Award or thereafter.
The Board may impose such conditions with respect to the exercise of
Options, including conditions relating to applicable federal or state
securities laws, as it considers necessary or advisable.
(d) No shares shall be delivered pursuant to any exercise of an Option until
payment in full of the option price therefor is received by the Corporation.
Such payment may be made in whole or in part in cash or, to the extent
permitted by the Board at or after the award of the Option, by delivery of a
note or shares of Common Stock owned by the optionholder, including
Restricted Stock, valued at their Fair Market Value on the date of delivery,
by the reduction of the shares of Common Stock that the optionholder would
be entitled to receive upon exercise of the Option, such shares to be valued
at their Fair Market Value on the date of exercise, less their option price
(a so-called "cashless exercise"), or such other lawful consideration as the
Board may determine. In addition, an optionholder may engage in a successive
exchange (or series of exchanges) in which the shares of Common Stock that
such optionholder is entitled to receive upon the exercise of an Option may
be simultaneously utilized as payment for the exercise of an additional
Option or Options.
(e) The Board may provide for the automatic award of an Option upon the delivery
of shares to the Corporation in payment of an Option for up to the number of
shares so delivered.
3
<PAGE>
SECTION 7. STOCK APPRECIATION RIGHTS
-------------------------
Subject to the provisions of the Plan, the Board may award SARs in tandem
with an Option (at or after the award of the Option), or alone and unrelated to
an Option. SARs in tandem with an Option shall terminate to the extent that the
related Option is exercised, and the related Option shall terminate to the
extent that the tandem SARs are exercised.
SECTION 8. Performance Shares
------------------
(a) Subject to the provisions of the Plan, the Board may award Performance
Shares and determine the number of such shares for each Performance Cycle
and the duration of each Performance Cycle. There may be more than one
Performance Cycle in existence at any one time, and the duration of
Performance Cycles may differ from each other. The payment value of
Performance Shares shall be equal to the Fair Market Value of the Common
Stock on the date the Performance Shares are earned or, in the discretion of
the Board, on the date the Board determines that the Performance Shares have
been earned.
(b) The Board shall establish performance goals for each Cycle, for the purpose
of determining the extent to which Performance Shares awarded for such Cycle
are earned, on the basis of such criteria and to accomplish such objectives
as the Board may from time to time select. During any Cycle, the Board may
adjust the performance goals for such Cycle as it deems equitable in
recognition of unusual or non-recurring events affecting the Corporation,
changes in applicable tax laws or accounting principles, or such other
factors as the Board may determine.
(c) As soon as practicable after the end of a Performance Cycle, the Board shall
determine the number of Performance Shares which have been earned on the
basis of performance in relation to the established performance goals. The
payment values of earned Performance Shares shall be distributed to the
Participant or, if the Participant has died, to the Participant's Designated
Beneficiary, as soon as practicable thereafter. The Board shall determine,
at or after the time of award, whether payment values will be settled in
whole or in part in cash or other property, including Common Stock or
Awards.
SECTION 9. RESTRICTED STOCK
----------------
(a) Subject to the provisions of the Plan, the Board may award shares of
Restricted Stock and determine the duration of the Restricted Period during
which, and the conditions under which, the shares may be forfeited to the
Corporation and the other terms and conditions of such Awards. Shares of
Restricted Stock may be issued for no cash consideration or such minimum
consideration as may be required by applicable law or such other
consideration as may be determined by the Board.
(b) Shares of Restricted Stock may not be sold, assigned, transferred, pledged
or otherwise encumbered, except as permitted by the Board, during the
Restricted Period. Shares of Restricted Stock shall be evidenced in such
manner as the Board may determine. Any certificates issued in respect of
shares of Restricted Stock shall be registered in the name of the
Participant and unless otherwise determined by the Board, deposited by the
Participant, together with a stock power endorsed in blank, with the
Corporation. At the expiration of the Restricted Period, the Corporation
shall deliver such certificates to the Participant or if the Participant has
died, to the Participant's Designated Beneficiary.
4
<PAGE>
SECTION 10. STOCK UNITS
-----------
(a) Subject to the provisions of the Plan, the Board may award Stock Units
subject to such terms, restrictions, conditions, performance criteria,
vesting requirements and payment rules as the Board shall determine.
(b) Shares of Common Stock awarded in connection with a Stock Unit Award shall
be issued for no cash consideration or such minimum consideration as may be
required by applicable law. Such shares of Common Stock may be designated as
Award Shares by the Board.
SECTION 11. GENERAL PROVISIONS APPLICABLE TO AWARDS
---------------------------------------
(a) Documentation. Each Award under the Plan shall be evidenced by a written
-------------
document delivered to the Participant specifying the terms and conditions
thereof and containing such other terms and conditions not inconsistent with
the provisions of the Plan as the Board considers necessary or advisable to
achieve the purposes of the Plan or comply with applicable tax and
regulatory laws and accounting principles.
(b) Board Discretion. Each type of Award may be made alone, in addition to or in
-----------------
relation to any other type of Award. The terms of each type of Award need
not be identical, and the Board need not treat Participants uniformly.
Except as otherwise provided by the Plan or a particular Award, any
determination with respect to an Award may be made by the Board at the time
of award or at any time thereafter. Without limiting the foregoing, an Award
may be made by the Board, in its discretion, to any 401(k), savings,
pension, profit sharing or other similar plan of the Corporation in lieu of
or in addition to any cash or other property contributed or to be
contributed to such plan.
(c) Settlement. The Board shall determine whether Awards are settled in whole or
-----------
in part in cash, Common Stock, other securities of the Corporation, Awards
or other property. The Board may permit a Participant to defer all or any
portion of a payment under the Plan, including the crediting of interest on
deferred amounts denominated in cash and dividend equivalents on amounts
denominated in Common Stock.
(d) Dividends and Cash Awards. In the discretion of the Board, any Award under
-------------------------
the Plan may provide the Participant with (i) dividends or dividend
equivalents payable currently or deferred with or without interest, and (ii)
cash payments in lieu of or in addition to an Award.
(e) Termination of Employment. The Board shall determine the effect on an Award
-------------------------
of the disability, death, retirement or other termination of employment of a
Participant and the extent to which, and the period during which, the
Participant's legal representative, guardian or Designated Beneficiary may
receive payment of an Award or exercise rights thereunder.
(f) Change in Control. In order to preserve a Participant's rights under an
------------------
Award in the event of a change in control of the Corporation, the Board in
its discretion may, at the time an Award is made or at any time thereafter,
take one or more of the following actions: (i) provide for the acceleration
of any time period relating to the exercise or realization of the Award,
(ii) provide for the purchase of the Award upon the Participant's request
for an amount of cash or other property that could have been received upon
the exercise or realization of the Award had the Award been currently
5
<PAGE>
exercisable or payable, (iii) adjust the terms of the Award in a manner
determined by the Board to reflect the change in control, (iv) cause the
Award to be assumed, or new rights substituted therefor, by another entity,
or (v) make such other provision as the Board may consider equitable and in
the best interests of the Corporation.
(g) Withholding. The Participant shall pay to the Corporation, or make provision
-----------
satisfactory to the Board for payment of, any taxes required by law to be
withheld in respect of Awards under the Plan no later than the date of the
event creating the tax liability. In the Board's discretion, such tax
obligations may be paid in whole or in part in shares of Common Stock,
including shares retained from the Award creating the tax obligation, valued
at their Fair Market Value on the date of delivery. The Corporation and its
Affiliates may, to the extent permitted by law, deduct any such tax
obligations from any payment of any kind otherwise due to the Participant.
(h) Amendment of Award. The Board may amend, modify or terminate any outstanding
------------------
Award, including substituting therefor another Award of the same or a
different type and changing the date of exercise or realization, provided
that the Participant's consent to such action shall be required unless the
Board determines that the action, taking into account any related action,
would not materially and adversely affect the Participant.
SECTION 12. MISCELLANEOUS
-------------
(a) No Right To Employment. No person shall have any claim or right to be
----------------------
granted an Award, and the grant of an Award shall not be construed as giving
a Participant the right to continued employment. The Corporation expressly
reserves the right at any time to dismiss a Participant free from any
liability or claim under the Plan, except as expressly provided in the
applicable Award.
(b) No Rights As Shareholder. Subject to the provisions of the applicable Award,
------------------------
no Participant or Designated Beneficiary shall have any rights as a
shareholder with respect to any shares of Common Stock to be distributed
under the Plan until he or she becomes the holder thereof. A Participant to
whom Common Stock is awarded shall be considered the holder of the Stock at
the time of the Award except as otherwise provided in the applicable Award.
(c) Effective Date. The Plan shall be effective on September 12, 1997.
---------------
(d) Amendment of Plan. The Board may amend, suspend or terminate the Plan or any
-----------------
portion thereof at any time.
(e) Governing Law. The provisions of the Plan shall be governed by and
--------------
interpreted in accordance with the laws of the State of Delaware.
(f) Indemnity. Neither the Board nor the Committee, nor any members of either,
----------
nor any employees of the Corporation or any parent, subsidiary, or other
affiliate, shall be liable for any act, omission, interpretation,
construction or determination made in good faith in connection with their
responsibilities with respect to this Plan, and the Corporation hereby
agrees to indemnify the members of the Board, the members of the Committee,
and the employees of the Corporation and its parent or subsidiaries in
respect of any claim, loss, damage, or expense (including reasonable counsel
fees) arising from any such act, omission, interpretation, construction or
determination to the full extent permitted by law.
6