exv10w1






Exhibit 10.1




BOB EVANS FARMS, INC.

2010 EQUITY AND CASH INCENTIVE PLAN




     The purpose of the Plan is to promote the Company’s long-term financial success and increase
stockholder value by motivating performance through incentive compensation. The Plan also is
intended to encourage Participants to acquire ownership interests in the Company, attract and
retain talented employees, directors and consultants and enable Participants to participate in the
Company’s long-term growth and financial success.



ARTICLE I

DEFINITIONS




     When used in the Plan, the following capitalized words, terms and phrases shall have the
meanings set forth in this Article I. For purposes of the Plan, the form of any word, term or
phrase shall include any and all of its other forms.



     1.1 “Act” shall mean the Securities Exchange Act of 1934, as amended from time to time, or any
successor thereto.



     1.2 “Affiliate” shall mean any entity with whom the Company would be considered a single
employer under Section 414(b) or (c) of the Code, but modified as permitted under Treasury
Regulations promulgated under any Code section relevant to the purpose for which the definition is
applied.



     1.3 “Award” shall mean any Nonqualified Stock Option, Incentive Stock Option, Stock
Appreciation Right, Restricted Stock, Other Stock-Based Award or Cash-Based Award granted pursuant
to the Plan.



     1.4 “Award Agreement” shall mean any written or electronic agreement between the Company and a
Participant that describes the terms and conditions of an Award. If there is a conflict between
the terms of the Plan and the terms of an Award Agreement, the terms of the Plan shall govern.



     1.5 “Board” shall mean the Board of Directors of the Company.



     1.6 “Cash-Based Award” shall mean a cash Award granted pursuant to Article IX of the Plan.



     1.7 “Cause” shall mean, unless otherwise provided in the related Award Agreement or in any
employment agreement between the Participant and the Company or any Affiliate or in any other
agreement between the Participant and the Company or any Affiliate (but only within the context of
the events contemplated by the employment agreement or other agreement, as applicable), a
Participant’s: (a) willful and continued failure to substantially perform assigned duties; (b)
gross misconduct; (c) breach of any term of any agreement with the Company or any Affiliate,
including the Plan and any Award Agreement; (d) conviction of (or plea of no contest or nolo
contendere to) (i) a felony or a misdemeanor that originally was charged as a felony but which was
subsequently reduced to a misdemeanor through negotiation with the charging entity or (ii) a crime
other than a felony, which involves a breach of trust or fiduciary duty owed to the Company or any
Affiliate; or (e) violation of the Company’s code of conduct or any other policy of the Company or
any Affiliate that applies to the Participant. Notwithstanding the foregoing, Cause will not arise
solely because the Participant is absent from active employment during periods of vacation,
consistent with the Company’s applicable vacation policy, or other period of absence approved by
the Company.



     1.8 “Change in Control” shall mean, unless otherwise provided in any employment agreement
between the Participant and the Company or any Affiliate or in any other agreement between the
Participant and the Company or any Affiliate (but only within the context of events contemplated by
the employment agreement or other agreement, as applicable), the occurrence of any of the
following:



          (a) the members of the Board on the effective date of this Plan (the “Incumbent Directors”)
cease for any reason other than death to constitute at least a majority of the members of the
Board; provided however, that any individual becoming a director after the effective date of this
Plan whose election, or nomination for election by the















 







Company’s stockholders, was approved by a vote of at least a majority of the then Incumbent
Directors shall also be treated as an Incumbent Director, but excluding any individual whose
initial assumption of office occurs as a result of a proxy contest or any agreement arising out of
an actual or threatened proxy contest;




          (b) the acquisition by any person or group (within the meaning of Sections 13(d) and 14(d)(2)
of the Act), other than the Company, any Subsidiary or any employee benefit plan (or related trust)
sponsored or maintained by the Company or any Subsidiary of the Company, of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Act), directly or indirectly, of thirty
percent (30%) or more of the combined voting power of the then outstanding voting securities of the
Company entitled to vote generally in the election of directors of the Company; provided, however,
that the provisions of this paragraph (b) shall not include the acquisition of voting securities by
any entity or person with respect to which that acquirer has filed SEC Schedule 13G (or any
successor form or filing) indicating that the voting securities were not acquired and are not held
for the purpose of or with the effect of changing or influencing, directly or indirectly, the
Company’s management or policies, unless and until that entity or person indicates that its intent
has changed by filing SEC Schedule 13D (or any successor form or filing);




          (c) the consummation of a merger, consolidation or other business combination of the Company
with or into another entity, or the acquisition by the Company of assets or shares or equity
interests of another entity, as a result of which the stockholders of the Company immediately prior
to such merger, consolidation, other business combination or acquisition, do not, immediately
thereafter, beneficially own, directly or indirectly, more than fifty percent (50%) of the combined
voting power of the then outstanding voting securities entitled to vote generally in the election
of directors of the entity resulting from such merger, consolidation or other business combination
or the Company;




          (d) the sale or other disposition of all or substantially all of the assets of the Company; or




          (e) the liquidation or dissolution of the Company.



Notwithstanding the foregoing, with respect to the payment, exercise or settlement of any Award
that is subject to Section 409A of the Code (and for which no exception applies), a Change in
Control shall be deemed not to have occurred unless the events or circumstances constituting a
Change in Control also constitute a “change in control event” within the meaning of Section 409A of
the Code and the Treasury Regulations promulgated thereunder.




     1.9 “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, or any
successor thereto.



     1.10 “Committee” shall mean the Compensation Committee of the Board, which will be comprised
of at least two (2) directors, each of whom is an “outside director,” within the meaning of Section
162(m) of the Code and the Treasury Regulations promulgated thereunder, a “non-employee” director
within the meaning of Rule 16b-3 under the Act, and an “independent director” under the rules of
the exchange on which the Shares are listed.



     1.11 “Company” shall mean Bob Evans Farms, Inc., a Delaware corporation, and any successor
thereto.



     1.12 “Consultant” shall mean any person who renders services to the Company or any of its
Affiliates other than an Employee or a Director.



     1.13 “Covered Employee” shall mean a “covered employee” within the meaning of Section 162(m)
of the Code and the Treasury Regulations promulgated thereunder.



     1.14 “Director” shall mean a person who is a member of the Board, excluding any member who is
an Employee.



     1.15 “Disability” shall mean:



          (a) with respect to an Incentive Stock Option, “disability” as defined in Section
22(e)(3) of the Code;







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          (b) with respect to the payment, exercise or settlement of any Award that is (or becomes)
subject to Section 409A of the Code (and for which no exception applies), (i) the Participant is
unable to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or can be expected to last
for a continuous period of not less than twelve (12) months, (ii) the Participant is, by reason of
any medically determinable physical or mental impairment that can be expected to result in death or
can be expected to last for a continuous period of not less than twelve (12) months, receiving
income replacement benefits for a period of not less than three (3) months under an accident and
health plan covering Employees of the Participant’s employer, or (iii) the Participant is
determined to be totally disabled by the Social Security Administration or Railroad Retirement
Board; and




          (c) with respect to a Participant’s right to exercise or receive settlement of any Award or
with respect to the payment, exercise or settlement of any Award not described in subsection (a) or
(b) of this definition, a Participant’s inability (established by an independent physician selected
by the Committee and reasonably acceptable to the Participant or to the Participant’s legal
representative) due to illness, accident or otherwise to perform his or her duties, which is
expected to be permanent or for an indefinite duration longer than twelve (12) months.




     1.16 “Employee” shall mean any person who is a common law employee of the Company or any
Affiliate. A person who is classified as other than a common-law employee but who is subsequently
reclassified as a common law employee of the Company or any Affiliate for any reason and on any
basis shall be treated as a common law employee only from the date that reclassification occurs and
shall not retroactively be reclassified as an Employee for any purpose under the Plan.



     1.17 “Fair Market Value” shall mean the value of one Share on any relevant date, determined
under the following rules:



          (a) If the Shares are traded on an exchange, the reported “closing price” on the relevant date
if it is a trading day, otherwise on the trading day immediately before the relevant date;




          (b) If the Shares are traded over-the-counter with no reported closing price, the mean between
the lowest bid and the highest asked prices on that quotation system on the relevant date if it is
a trading day, and if the relevant date is not a trading day, then on the trading day immediately
before the relevant date; or




          (c) If neither (a) nor (b) applies, (i) with respect to Options, Stock Appreciation Rights and
any Award that is subject to Section 409A of the Code, the value as determined by the Committee
through the reasonable application of a reasonable valuation method, taking into account all
information material to the value of the Company, within the meaning of Section 409A of the Code
and the Treasury Regulations promulgated thereunder, and (ii) with respect to all other Awards, the
fair market value as determined by the Committee in good faith.




     1.18 “Full Value Award” shall mean an Award that is settled by the issuance of Shares, other
than an Incentive Stock Option, a Nonqualified Stock Option or a Stock Appreciation Right.



     1.19 “Incentive Stock Option” shall mean an Option that is intended to meet the requirements
of Section 422 of the Code.



     1.20 “Nonqualified Stock Option” shall mean an Option that is not intended to be an Incentive
Stock Option.



     1.21 “Option” shall mean an option to purchase Shares which is granted pursuant to Article V
of the Plan. An Option may be either an Incentive Stock Option or a Nonqualified Stock Option.



     1.22 “Other Stock-Based Award” shall mean an Award granted pursuant to Article VIII of the
Plan.



     1.23 “Participant” shall mean an Employee, Director or Consultant who is granted an Award
under the Plan.



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     1.24 “Performance-Based Award” shall mean an Award described in Section 10.1 of the Plan.



     1.25 “Performance Criteria” shall mean (a) with respect to a Participant who is or is likely
to be a Covered Employee, the performance criteria described in Section 10.2(a) of the Plan, and
(b) with respect to any other Participant, any performance criteria determined by the Committee in
its sole discretion.



     1.26 “Plan” shall mean the Bob Evans Farms, Inc. 2010 Equity and Cash Incentive Plan, as set
forth herein and as may be amended from time to time.



     1.27 “Preexisting Plan” shall mean the Bob Evans Farms, Inc. Amended and Restated 2006 Equity
and Cash Incentive Plan. Upon approval by the Plan by the Company’s stockholders, no
further awards will be issued under the Preexisting Plan, although the Preexisting Plan will remain
in effect after the Company’s stockholders approve the Plan for purposes of determining any
grantee’s right to awards issued under the Preexisting Plan before that date



     1.28 “Restricted Stock” shall mean an Award granted pursuant to Article VII of the Plan under
which a Participant is issued Shares which are subject to specified restrictions on vesting and
transferability.



     1.29 “Retirement” shall mean, unless otherwise provided in the related Award Agreement or in
any employment agreement between the Participant and the Company or any Affiliate or in any other
agreement between the Participant and the Company or any Affiliate (but only within the context of
the events contemplated by the employment agreement or other agreement, as applicable), a
Participant’s voluntary termination of employment or Board service on or after the earlier of the
date on which (a) an Employee or Director attains age fifty-five (55) and has been credited with
ten (10) or more years of service (whether in the capacity of an Employee or as a Director) with
the Company or any Affiliate; or (b)(i) the sum of the Employee’s or Director’s age (measured in
whole years only) and years of service (whether in the capacity of an Employee or as a Director)
with the Company or any Affiliate equals or exceeds 70 and (ii) the Employee or Director has been
credited with at least ten (10) years of service (whether in the capacity of an Employee or as a
Director) with the Company or any Affiliate.



     1.30 “Shares” shall mean the common shares, par value $0.01 per share, of the Company or any
security of the Company issued in satisfaction, exchange or in place of these shares.



     1.31 “Stock Appreciation Right” shall mean an Award granted pursuant to Article VI of the Plan
under which a Participant is given the right to receive the difference between the Fair Market
Value of a Share on the date of grant and the Fair Market Value of a Share on the date of exercise
of the Award.



     1.32 “Subsidiary” shall mean: (a) with respect to an Incentive Stock Option, a “subsidiary
corporation” as defined under Section 424(f) of the Code; and (b) for all other purposes under the
Plan, any corporation or other entity in which the Company owns, directly or indirectly, a
proprietary interest of more than fifty (50%) by reason of stock ownership or otherwise.



     1.33 “Treasury Regulations” shall mean the regulations issued by the United States Department
of the Treasury with respect to the relevant section of the Code.



ARTICLE II

SHARES SUBJECT TO THE PLAN




     2.1 Number of Shares Available for Awards. Subject to this Article II, the aggregate number
of Shares with respect to which Awards may be granted under the Plan shall be 2,400,000, plus the
number of Shares that, on the date the Plan is approved by the Company’s stockholders, are
available to be granted under the Preexisting Plan but which are not then subject to outstanding
awards under the Preexisting Plan, all of which may be granted with respect to Incentive Stock
Options. The Shares may consist, in whole or in part, of treasury Shares, authorized but unissued
Shares not reserved for any other purpose or Shares purchased by the Company or an independent
agent in either a private transaction or in the open market. Subject to this Article II, (a) upon
a grant of a Full Value Award, the number of Shares available for issuance under the Plan shall be
reduced by 2.63 Shares for each Share subject to



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such Full Value Award, and any Shares underlying such an Award that become available for
future grant under the Plan pursuant to Section 2.2 shall be added back to the Plan in an amount
equal to 2.63 Shares for each Share subject to such an Award that becomes available for future
grant under the Plan pursuant to Section 2.2 and (b) upon a grant of an Option or Stock
Appreciation Right, the number of Shares available for issuance under the Plan shall be reduced by
an amount equal to the number of Shares subject to such Award, and any Shares underlying such an
Award that become available for future grant under the Plan pursuant to Section 2.2 shall be added
back to the Plan in an amount equal to the number of Shares subject to such an Award that become
available for future grant under the Plan pursuant to Section 2.2. Without limiting the foregoing,
with respect to any Stock Appreciation Right that is settled in Shares, the full number of Shares
subject to the Award shall count against the number of Shares available for Awards under the Plan
regardless of the number of Shares used to settle the Stock Appreciation Right upon exercise.




     2.2 Share Usage. In addition to the number of Shares provided for in Section 2.1, the
following Shares shall be available for Awards under the Plan: (a) Shares covered by an Award that
expires or is forfeited, canceled, surrendered or otherwise terminated without the issuance of such
Shares; (b) Shares covered by an Award that is settled only in cash; (c) Shares granted through the
assumption of, or in substitution for, outstanding awards granted by a company to individuals who
become Employees, Directors or Consultants as the result of a merger, consolidation, acquisition or
other corporate transaction involving such company and the Company or any of its Affiliates; (d)
any Shares subject to outstanding awards under the Preexisting Plan as of the Effective Date that
on or after the Effective Date cease for any reason to be subject to such awards other than by
reason of exercise or settlement of the awards to the extent they are exercised for or settled in
vested and non-forfeitable Shares; and (e) any Shares from awards exercised for or settled in
vested and nonforfeitable Shares that are later returned to the Company pursuant to any
compensation recoupment policy, provision or agreement. Nothing in the foregoing shall be
construed as permitting any Shares surrendered upon exercise of an Award as payment of the
applicable exercise price or withheld to satisfy any applicable taxes to be again available for
Awards under the Plan.



     2.3 Fiscal Year Limits. Subject to Section 2.4 and unless and until the Committee determines
that an Award to a Covered Employee shall not be designed as “qualified performance-based
compensation” under Section 162(m) of the Code, during any fiscal year of the Company, the
Committee may not grant to any Participant (a) Options covering more than 2,400,000 Shares, (b)
Stock Appreciation Rights covering more than 2,400,000 Shares, (c) more than 1,000,000 Shares of
Restricted Stock, (d) Other Stock-Based Awards covering more than 1,000,000 Shares, (e) Cash-Based
Awards equal to more than $7,500,000, (f) Performance-Based Awards that are to be settled in Shares
covering more than 1,000,000 Shares, (g) Performance-Based Awards that are to be settled in cash
equal to more than $7,500,000 and (h) Full Value Awards covering more than 1,000,000 Shares.



     2.4 Adjustments. In the event of any Share dividend, Share split, recapitalization (including
payment of an extraordinary dividend), merger, reorganization, consolidation, combination,
spin-off, distribution of assets to stockholders, exchange of Shares or any other change affecting
the Shares, the Committee shall make such substitutions and adjustments, if any, as it deems
equitable and appropriate to: (a) the aggregate number of Shares that may be issued under the Plan;
(b) any Share-based limits imposed under the Plan; and (c) the exercise price, number of Shares and
other terms or limitations applicable to outstanding Awards. Notwithstanding the foregoing, an
adjustment pursuant to this Section 2.4 shall be made only to the extent such adjustment complies,
to the extent applicable, with Section 409A of the Code.



     2.5 Full Value Awards. Notwithstanding anything in the Plan to the contrary, the Committee
may grant Full Value Awards covering up to 240,000 Shares without regard to the minimum vesting
requirements of Sections 7.3(a) and 8.1 of the Plan.



ARTICLE III

ADMINISTRATION




     3.1 In General. The Plan shall be administered by the Committee. The Committee shall have
full power and authority to: (a) interpret the Plan and any Award Agreement; (b) establish, amend
and rescind any rules and regulations relating to the Plan; (c) select Participants; (d) establish
the terms and conditions of any Award consistent with the terms and conditions of the Plan; and (e)
make any other determinations that it deems necessary or desirable for the administration of the
Plan. The Committee may correct any defect, supply any omission or



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reconcile any inconsistency in the Plan or in any Award Agreement in the manner and to the
extent the Committee deems necessary or desirable. Any decision of the Committee in the
interpretation and administration of the Plan shall be made in the Committee’s sole and absolute
discretion and shall be final, conclusive and binding on all persons.




     3.2 Delegation of Duties. In its sole discretion, the Committee may delegate any ministerial
duties associated with the Plan to any person (including Employees) it deems appropriate; provided,
however, that the Committee may not delegate (a) any duties that it is required to discharge to
comply with Section 162(m) of the Code or any other applicable law; (b) its authority to grant
Awards to any Participant who is subject to Section 16 of the Act; and (c) its authority under any
equity award granting policy of the Company that may be in effect from time to time.



ARTICLE IV

ELIGIBILITY




     Any Employee, Director or Consultant selected by the Committee shall be eligible to be a
Participant in the Plan; provided, however, that Incentive Stock Options shall only be granted to
Employees who are employed by the Company or any of its Affiliates.



ARTICLE V

OPTIONS




     5.1 Grant of Options. Subject to the terms and conditions of the Plan, Options may be granted
to Participants in such number, and upon such terms and conditions, as shall be determined by the
Committee in its sole discretion.



     5.2 Award Agreement. Each Option shall be evidenced by an Award Agreement that shall specify
the exercise price, the term of the Option, the number of Shares covered by the Option, the
conditions upon which the Option shall become vested and exercisable and such other terms and
conditions as the Committee shall determine and which are not inconsistent with the terms and
conditions of the Plan. The Award Agreement also shall specify whether the Option is intended to
be an Incentive Stock Option or a Nonqualified Stock Option.



     5.3 Exercise Price. The exercise price per Share of an Option shall be determined by the
Committee at the time the Option is granted and shall be specified in the related Award Agreement;
provided, however, that in no event shall the exercise price per Share of any Option be less than
one hundred percent (100%) of the Fair Market Value of a Share on the date of grant.



     5.4 Term. The term of an Option shall be determined by the Committee and set forth in the
related Award Agreement; provided, however, that in no event shall the term of any Option exceed
ten (10) years from its date of grant.



     5.5 Exercisability. Options shall become exercisable at such times and upon such terms and
conditions as shall be determined by the Committee and set forth in the related Award Agreement.
Such terms and conditions may include, without limitation, the satisfaction of (a) performance
goals based on one (1) or more Performance Criteria; and (b) time-based vesting requirements.



     5.6 Exercise of Options. Except as otherwise provided in the Plan or in a related Award
Agreement, an Option may be exercised for all or any portion of the Shares for which it is then
exercisable. An Option shall be exercised by the delivery of a notice of exercise to the Company
or its designee in a form specified by the Committee which sets forth the number of Shares with
respect to which the Option is to be exercised and full payment of the exercise price for such
Shares. The exercise price of an Option may be paid: (a) in cash or its equivalent; (b) by
tendering (either by actual delivery or attestation) previously acquired Shares having an aggregate
Fair Market Value at the time of exercise equal to the aggregate exercise price; provided that such
Shares had been held for at least six (6) months or such other period required to obtain favorable
accounting treatment and to comply with the requirements of Section 16 of the Act; (c) by a
cashless exercise (including by withholding Shares deliverable upon exercise and through a
broker-assisted arrangement to the extent permitted by applicable law); (d) by a combination of the
methods described in clauses (a), (b) and/or (c); or (e) though any other method



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approved by the Committee in its sole discretion. As soon as practicable after receipt of the
notification of exercise and full payment of the exercise price, the Company shall cause the
appropriate number of Shares to be issued to the Participant.




     5.7 Special Rules Applicable to Incentive Stock Options. Notwithstanding any other provision
in the Plan to the contrary:



          (a) The terms and conditions of Incentive Stock Options shall be subject to and comply with
the requirements of Section 422 of the Code.



          (b) The aggregate Fair Market Value of the Shares (determined as of the date of grant) with
respect to which Incentive Stock Options are exercisable for the first time by any Participant
during any calendar year (under all plans of the Company and its Subsidiaries) may not be greater
than $100,000 (or such other amount specified in Section 422 of the Code), as calculated under
Section 422 of the Code.



          (c) No Incentive Stock Option shall be granted to any Participant who, at the time the
Incentive Stock Option is granted, owns stock possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or of any Subsidiary, unless (i) the
exercise price of such Incentive Stock Option is at least one hundred and ten percent (110%) of the
Fair Market Value of a Share on the date the Incentive Stock Option is granted and (ii) the date on
which such Incentive Stock Option will expire is not later than five (5) years from the date the
Incentive Stock Option is granted.



ARTICLE VI

STOCK APPRECIATION RIGHTS




     6.1 Grant of Stock Appreciation Rights. Subject to the terms and conditions of the Plan,
Stock Appreciation Rights may be granted to Participants in such number, and upon such terms and
conditions, as shall be determined by the Committee in its sole discretion.



     6.2 Award Agreement. Each Stock Appreciation Right shall be evidenced by an Award Agreement
that shall specify the exercise price, the term of the Stock Appreciation Right, the number of
Shares covered by the Stock Appreciation Right, the conditions upon which the Stock Appreciation
Right shall become vested and exercisable and such other terms and conditions as the Committee
shall determine and which are not inconsistent with the terms and conditions of the Plan.



     6.3 Exercise Price. The exercise price per Share of a Stock Appreciation Right shall be
determined by the Committee at the time the Stock Appreciation Right is granted and shall be
specified in the related Award Agreement; provided, however, that in no event shall the exercise
price per Share of any Stock Appreciation Right be less than one hundred percent (100%) of the Fair
Market Value of a Share on the date of grant.



     6.4 Term. The term of a Stock Appreciation Right shall be determined by the Committee and set
forth in the related Award Agreement; provided however, that in no event shall the term of any
Stock Appreciation Right exceed ten (10) years from its date of grant.



     6.5 Exercisability of Stock Appreciation Rights. A Stock Appreciation Right shall become
exercisable at such times and upon such terms and conditions as may be determined by the Committee
and set forth in the related Award Agreement. Such terms and conditions may include, without
limitation, the satisfaction of (a) performance goals based on one (1) or more Performance
Criteria; and (b) time-based vesting requirements.



     6.6 Exercise of Stock Appreciation Rights. Except as otherwise provided in the Plan or in a
related Award Agreement, a Stock Appreciation Right may be exercised for all or any portion of the
Shares for which it is then exercisable. A Stock Appreciation Right shall be exercised by the
delivery of a notice of exercise to the Company or its designee in a form specified by the
Committee which sets forth the number of Shares with respect to which the Stock Appreciation Right
is to be exercised. Upon exercise, a Stock Appreciation Right shall entitle a Participant to an
amount equal to (a) the excess of (i) the Fair Market Value of a Share on the exercise date over
(ii) the exercise price per Share, multiplied by (b) the number of Shares with respect to which the
Stock



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Appreciation Right is exercised. A Stock Appreciation Right may be settled in full Shares, cash or a
combination thereof, as specified by the Committee in the related Award Agreement.




ARTICLE VII

RESTRICTED STOCK




     7.1 Grant of Restricted Stock. Subject to the terms and conditions of the Plan, Shares of
Restricted Stock may be granted to Participants in such number, and upon such terms and conditions,
as shall be determined by the Committee in its sole discretion.



     7.2 Award Agreement. Each Restricted Stock Award shall be evidenced by an Award Agreement
that shall specify the number of Shares of Restricted Stock, the restricted period(s) applicable to
the Shares of Restricted Stock, the conditions upon which the restrictions on the Shares of
Restricted Stock will lapse and such other terms and conditions as the Committee shall determine
and which are not inconsistent with the terms and conditions of the Plan.



     7.3 Terms, Conditions and Restrictions.



          (a) The Committee shall impose such other terms, conditions and/or restrictions on any Shares
of Restricted Stock as it may deem advisable, including, without limitation, a requirement that the
Participant pay a purchase price for each Share of Restricted Stock, restrictions based on the
achievement of specific performance goals (which may be based on one (1) or more of the Performance
Criteria), time-based restrictions or holding requirements or sale restrictions placed on the
Shares by the Company upon vesting of such Restricted Stock. Notwithstanding the foregoing,
subject to Sections 2.5 and Article XII of the Plan or as described in the related Award Agreement
in connection with a Participant’s death, termination due to Disability and/or Retirement, no
condition on vesting of a Restricted Stock Award that is based upon achievement of specified
performance goals shall be based on performance over a period of less than one year and no
condition on vesting of a Restricted Stock Award that is based upon continued employment or the
passage of time shall provide for vesting in full of the Restricted Stock Award more quickly than
in pro rata installments over three (3) years from the date of grant of the Award.




          (b) To the extent deemed appropriate by the Committee, the Company may retain the certificates
representing Shares of Restricted Stock in the Company’s possession until such time as all terms,
conditions and/or restrictions applicable to such Shares have been satisfied or lapse.




          (c) Unless otherwise provided in the related Award Agreement or required by applicable law,
the restrictions imposed on Shares of Restricted Stock shall lapse upon the expiration or
termination of the applicable restricted period and the satisfaction of any other applicable terms
and conditions.




     7.4 Rights Associated with Restricted Stock during Restricted Period. During any restricted
period applicable to Shares of Restricted Stock:



          (a) Such Shares of Restricted Stock may not be sold, transferred, pledged, assigned or
otherwise alienated or hypothecated.




          (b) Unless otherwise provided in the related Award Agreement, (i) the Participant shall be
entitled to exercise full voting rights associated with such Shares of Restricted Stock and (ii)
the Participant shall be entitled to all dividends and other distributions paid with respect to
such Shares of Restricted Stock during the restricted period; provided, however, that receipt of
any such dividends or other distributions will be subject to the same terms and conditions as the
Shares of Restricted Stock with respect to which they are paid.




ARTICLE VIII

OTHER STOCK-BASED AWARDS




     8.1 Grant of Other Stock-Based Awards. Subject to the terms and conditions of the Plan, Other
Stock-Based Awards may be granted to Participants in such number, and upon such terms and
conditions, as shall be



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determined by the Committee in its sole discretion. Other Stock-Based Awards are Awards that
are valued in whole or in part by reference to, or otherwise based on the Fair Market Value of, the
Shares, and shall be in such form as the Committee shall determine, including without limitation,
(a) unrestricted Shares or (b) time-based or performance-based restricted stock units that are
settled in Shares and/or cash. Notwithstanding the foregoing, subject to Sections 2.5 and Article
XII of the Plan or as described in the related Award Agreement in connection with a Participant’s
death, termination due to Disability and/or Retirement, no condition on vesting of an Other
Stock-Based Award that is based upon achievement of specified performance goals shall be based on
performance over a period of less than one year and no condition on vesting of an Other Stock-Based
Award that is based upon continued employment or the passage of time shall provide for vesting in
full of the Other Stock-Based Award more quickly than in pro rata installments over three (3) years
from the date of grant of the Award.




     8.2 Award Agreement. Each Other Stock-Based Award shall be evidenced by an Award Agreement
that shall specify the terms and conditions upon which the Other Stock-Based Award shall become
vested, if applicable, the time and method of settlement, the form of settlement and such other
terms and conditions as the Committee shall determine and which are not inconsistent with the terms
and conditions of the Plan.



     8.3 Form of Settlement. An Other Stock-Based Award may be settled in full Shares, cash or a
combination thereof, as specified by the Committee in the related Award Agreement.



     8.4 Dividend Equivalents. Awards of Other Stock-Based Awards may provide the Participant with
dividend equivalents, as determined by the Committee in its sole discretion and set forth in the
related Award Agreement.



ARTICLE IX

CASH-BASED AWARDS




     Subject to the terms and conditions of the Plan, Cash-Based Awards may be granted to
Participants in such amounts and upon such other terms and conditions as shall be determined by the
Committee in its sole discretion. Each Cash-Based Award shall be evidenced by an Award Agreement
that shall specify the payment amount or payment range, the time and method of settlement and the
other terms and conditions, as applicable, of such Award which may include, without limitation,
performance objectives and that the Cash-Based Award is a Performance-Based Award under Article X.



ARTICLE X

PERFORMANCE-BASED AWARDS




     10.1 In General. Notwithstanding anything in the Plan to the contrary, Cash-Based Awards,
Shares of Restricted Stock and Other Stock-Based Awards may be granted in a manner which is
deductible by the Company under Section 162(m) of the Code (“Performance-Based Awards”). As
determined by the Committee in its sole discretion, the grant, vesting, exercisability and/or
settlement of any Performance-Based Award shall be conditioned on the attainment of performance
goals based upon one (1) or more Performance Criteria during a performance period established by
the Committee. Any such Award must meet the requirements of this Article X.



     10.2 Performance Criteria.



          (a) For purposes of the Plan, the “Performance Criteria” for Participants who are or are
likely to be Covered Employees are as follows:





	 	(i)	 	Gross revenues;
	 
	 	(ii)	 	Operating or net income;
	 
	 	(iii)	 	Gross or net sales;
	 
	 	(iv)	 	Margin improvement;




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	 	(v)	 	Cash flow;
	 
	 	(vi)	 	Earnings per share;
	 
	 	(vii)	 	Total stockholder return (“TSR”);
	 
	 	(viii)	 	New products and lines of revenue;
	 
	 	(ix)	 	Customer satisfaction;
	 
	 	(x)	 	Market share;
	 
	 	(xi)	 	Employee turnover;
	 
	 	(xii)	 	Developing and managing relationships with regulatory and
other governmental agencies;
	 
	 	(xiii)	 	Managing claims against the Company or any Affiliate, including litigation;
	 
	 	(xiv)	 	Improving efficiencies and productivity;
	 
	 	(xv)	 	Design and implementation of plans, programs, policies and
systems of the Company and its Affiliates;
	 
	 	(xvi)	 	Management of rebuilding, replacement, relocation or retirement of restaurants;
	 
	 	(xvii)	 	The Company’s book value or the book value of any designated Affiliate or division;
	 
	 	(xviii)	 	The trading value of the Shares;
	 
	 	(xix)	 	Appreciation in price of the Shares;
	 
	 	(xx)	 	Completing assigned corporate transactions, such as mergers,
acquisitions or divestitures;
	 
	 	(xxi)	 	Controlling expenses and implementing procedures for
controlling expenses;
	 
	 	(xxii)	 	One or more of (A) Return on Equity (or “ROE”), (B) Return on Investment (or
“ROI”), (C) Return on Assets (or “ROA”); (D) Return on Invested Capital (or
“ROIC”), (E) Economic Value Added (or “EVA”), (F) Stockholder Value Added (or
“SVA”), (G) Cash Flow Return on Investment (or “CFROI”) and (H) Net Operating
Profit After Taxes (or “NOPAT”);
	 
	 	(xxiii)	 	Enhancing employee loyalty;
	 
	 	(xxiv)	 	Promoting same store sales;
	 
	 	(xxv)	 	Increasing total food products sold;
	 
	 	(xxvi)	 	Integrating systems of the Company and its Affiliates;
	 
	 	(xxvii)	 	Promoting regulatory compliance; and
	 
	 	(xxviii)	 	Brand development.




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          (b) Performance Criteria may relate to the individual Participant, the Company, one (1) or
more of its Affiliates or one (1) or more of their respective divisions or business units, or any
combination of the foregoing, and
may be applied on an absolute basis and/or be relative to one (1) or more peer group companies
or indices, or any combination thereof, in each case, as determined by the Committee in its sole
discretion.





     10.3 Establishment of Performance Goals. With respect to Performance-Based Awards for
Participants who are or are likely to be Covered Employees, the Committee shall establish: (a) the
applicable performance goals and performance period and (b) the formula for computing the
Performance-Based Award. Such terms and conditions shall be established in writing while the
outcome of the applicable performance period is substantially uncertain, but in no event later than
the earlier of: (i) ninety (90) days after the beginning of the applicable performance period; or
(ii) the expiration of twenty-five percent (25%) of the applicable performance period.



     10.4 Certification of Performance. With respect to Performance-Based Awards for Participants
who are or are likely to be Covered Employees, the Committee shall certify in writing whether the
applicable performance goals and other material terms imposed on such Performance-Based Awards have
been satisfied, and, if they have, ascertain the amount of the applicable Performance-Based Award.
No such Performance-Based Award shall be granted, vested, exercisable and/or settled, as the case
may be, until the Committee makes this certification.



     10.5 Modifying Performance-Based Awards. To the extent consistent with Section 162(m) of the
Code, performance goals relating to such Performance-Based Awards may be calculated without regard
to extraordinary items or adjusted, as the Committee deems equitable, in recognition of unusual or
non-recurring events affecting the Company and/or its Affiliates or changes in applicable tax laws
or accounting principles.



     10.6 Negative Discretion. In the Committee’s sole discretion, the amount of a
Performance-Based Award actually paid to a Participant may be less than the amount determined by
the applicable performance goal formula.






ARTICLE XI

TERMINATION OF EMPLOYMENT OR SERVICE




     With respect to each Award granted under the Plan, the Committee shall, subject to the terms
and conditions of the Plan, determine the extent to which the Award shall vest and the extent to
which the Participant shall have the right to exercise and/or receive settlement of the Award on or
following the Participant’s termination of employment or services with the Company and/or any of
its Affiliates. Such provisions shall be determined in the sole discretion of the Committee at any
time prior to or after such termination, shall be included in the related Award Agreement or an
amendment thereto, need not be uniform among all Awards granted under the Plan and may reflect
distinctions based on the reasons for termination. Except as otherwise provided in the Plan, the
vesting conditions of an Award may only be accelerated upon the death, termination due to
Disability, Retirement or involuntary termination without Cause of the Participant.
Notwithstanding the foregoing, in no event shall any Performance-Based Award granted to a Covered
Employee that is intended to qualify as “performance-based compensation” under Section 162(m) of
the Code, be settled or become exercisable in full, upon the termination of employment of the
Covered Employee without regard to the satisfaction of the related Performance Criteria.



ARTICLE XII

CHANGE IN CONTROL




     Except as otherwise provided in the related Award Agreement, in the event of a Change in
Control, the Committee, in its sole discretion, may take such actions, if any, as it deems
necessary or desirable with respect to any Award that is outstanding as of the date of the
consummation of the Change in Control. Such actions may include, without limitation: (a) the
acceleration of the vesting, settlement and/or exercisability of an Award; (b) the payment of a
cash amount in exchange for the cancellation of an Award; and/or (c) the issuance of substitute
Awards that substantially preserve the value, rights and benefits of any affected Awards. Any
action relating to an Award that is subject to Section 409A of the Code shall be consistent with
the requirements thereof.



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ARTICLE XIII

AMENDMENT OR TERMINATION OF THE PLAN




     13.1 In General. The Board or the Committee may amend or terminate the Plan at any time;
provided, however, that no amendment or termination shall be made without the approval of the
Company’s stockholders to
the extent that (a) the amendment materially increases the benefits accruing to Participants
under the Plan, (b) the amendment materially increases the aggregate number of Shares authorized
for grant under the Plan (excluding an increase in the number of Shares that may be issued under
the Plan as a result of Section 2.4), (c) the amendment materially modifies the requirements as to
eligibility for participation in the Plan, or (d) such approval is required by any law, regulation
or stock exchange rule.



     13.2 Repricing. Except for adjustments made pursuant to Section 2.4 of the Plan, in no event
may the Board or the Committee amend the terms of an outstanding Award to reduce the exercise price
of an outstanding Option or Stock Appreciation Right or cancel an outstanding Option or Stock
Appreciation Right in exchange for cash, other Awards or Options or Stock Appreciation Rights with
an exercise price that is less than the exercise price of the original Option or Stock Appreciation
Right without stockholder approval.



ARTICLE XIV

TRANSFERABILITY




     14.1 Except as described in Section 14.2 or as provided in a related Award Agreement, an Award
may not be sold, transferred, pledged, assigned or otherwise alienated or hypothecated, except by
will or the laws of descent and distribution and, during a Participant’s lifetime, may be exercised
only by the Participant or the Participant’s guardian or legal representative. Notwithstanding any
provision contained in this Article XIV, no Award may be transferred by a Participant for value or
consideration.



     14.2 Unless otherwise specifically designated by the Participant in writing, a Participant’s
beneficiary under the Plan shall be the Participant’s spouse or, if no spouse survives the
Participant, the Participant’s estate.



ARTICLE XV

MISCELLANEOUS




     15.1 No Right to Continued Service or to Awards. The granting of an Award under the Plan
shall impose no obligation on the Company or any Affiliate to continue the employment or services
of a Participant or interfere with or limit the right of the Company or any Affiliate to terminate
the services of any Employee, Director or Consultant at any time. In addition, no Employee,
Director or Consultant shall have any right to be granted any Award, and there is no obligation for
uniformity of treatment of Participants. The terms and conditions of Awards and the Committee’s
interpretations and determinations with respect thereto need not be the same with respect to each
Participant.



     15.2 Tax Withholding.



          (a) The Company or an Affiliate, as applicable, shall have the power and the right to deduct,
withhold or collect any amount required by law or regulation to be withheld with respect to any
taxable event arising with respect to an Award granted under the Plan. This amount may, as
determined by the Committee in its sole discretion, be (i) withheld from other amounts due to the
Participant, (ii) withheld from the value of any Award being settled or any Shares being
transferred in connection with the exercise or settlement of an Award, (iii) withheld from the
vested portion of any Award (including the Shares transferable thereunder), whether or not being
exercised or settled at the time the taxable event arises, or (iv) collected directly from the
Participant.




          (b) Subject to the approval of the Committee, a Participant may elect to satisfy the
withholding requirement, in whole or in part, by having the Company or an Affiliate, as applicable,
withhold Shares having a Fair Market Value on the date the tax is to be determined equal to the
minimum statutory total tax that could be imposed on the transaction; provided that such Shares
would otherwise be distributable to the Participant at the time of the withholding and if such
Shares are not otherwise distributable at the time of the withholding, provided that the
Participant has a vested right to distribution of such Shares at such time. All such elections
shall be irrevocable and




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made in writing and shall be subject to any terms and conditions that the
Committee, in its sole discretion, deems appropriate.




     15.3 Requirements of Law. The grant of Awards and the issuance of Shares shall be subject to
all applicable laws, rules and regulations (including applicable federal and state securities laws)
and to all required
approvals of any governmental agencies or national securities exchange, market or other
quotation system. Without limiting the foregoing, the Company shall have no obligation to issue
Shares under the Plan prior to (a) receipt of any approvals from any governmental agencies or
national securities exchange, market or quotation system that the Committee deems necessary and (b)
completion of registration or other qualification of the Shares under any applicable federal or
state law or ruling of any governmental agency that the Committee deems necessary.



     15.4 Legends. Certificates for Shares delivered under the Plan may be subject to such stock
transfer orders and other restrictions that the Committee deems advisable under the rules,
regulations and other requirements of the Securities and Exchange Commission, any stock exchange or
other recognized market or quotation system upon which the Shares are then listed or traded, or any
other applicable federal or state securities law. The Committee may cause a legend or legends to
be placed on any certificates issued under the Plan to make appropriate reference to restrictions
within the scope of this Section 15.4.



     15.5 Uncertificated Shares. To the extent that the Plan provides for the issuance of
certificates to reflect the transfer of Shares, the transfer of Shares may be effected on a
noncertificated basis, to the extent not prohibited by applicable law or the applicable rules of
any stock exchange.



     15.6 Governing Law. The Plan and all Award Agreements shall be governed by and construed in
accordance with the laws of (other than laws governing conflicts of laws) the State of Ohio, except
to the extent that the laws of the state in which the Company is incorporated are mandatorily
applicable.



     15.7 No Impact on Benefits. Awards are not compensation for purposes of calculating a
Participant’s rights under any employee benefit plan that does not specifically require the
inclusion of Awards in calculating benefits.



     15.8 Rights as a Stockholder. Except as otherwise provided in the Plan or in a related Award
Agreement, a Participant shall have none of the rights of a stockholder with respect to Shares
covered by an Award unless and until the Participant becomes the record holder of such Shares.



     15.9 Successors and Assigns. The Plan shall be binding on all successors and assigns of the
Company and each Participant, including without limitation, the estate of such Participant and the
executor, administrator or trustee of such estate, or any receiver or trustee in bankruptcy or
representative of the Participant’s creditors.



     15.10 Section 409A of the Code.



          (a) Awards granted pursuant to the Plan that are subject to Section 409A of the Code, or that
are subject to Section 409A but for which an exception from Section 409A of the Code applies, are
intended to comply with or be exempt from Section 409A of the Code and the Treasury Regulations
promulgated thereunder, and the Plan shall be interpreted, administered and operated accordingly.




          (b) If a Participant is determined to be a “specified employee” (within the meaning of Section
409A of the Code and as determined under the Company’s policy for determining specified employees),
the Participant shall not be entitled to payment or to distribution of any portion of an Award that
is subject to Section 409A of the Code (and for which no exception applies) and is payable or
distributable on account of the Participant’s “separation from service” (within the meaning of
Section 409A of the Code) until the expiration of six (6) months from the date of such separation
from service (or, if earlier, the Participant’s death). Such Award, or portion thereof, shall be
paid or distributed on the first (1st) business day of the seventh (7th)
month following such separation from service.




          (c) Nothing in the Plan shall be construed as an entitlement to or guarantee of any particular
tax treatment to a Participant, and none of the Company, its Affiliates, the Board or the Committee
shall have any liability with respect to any failure to comply with the requirements of Section
409A of the Code.




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     15.11 Foreign Employees. Without amending the Plan, the Committee may grant Awards to
Participants who are foreign nationals on such terms and conditions different from those specified
in the Plan as may in the judgment of the Committee be necessary or desirable to foster and promote
achievement of the purposes of the Plan, and, in furtherance of such purposes, the Committee may
make such modifications, amendments, procedures, and the like as may be necessary or advisable to
comply with provisions of laws of other countries in which the Company or its
Subsidiaries operate or have employees



     15.12 Savings Clause. In the event that any provision of the Plan shall be held illegal or
invalid for any reason, the illegality or invalidity shall not affect the remaining provisions of
the Plan, and the Plan shall be construed and enforced as if the illegal or invalid provision had
not been included.



ARTICLE XVI

EFFECTIVE DATE AND TERM OF THE PLAN




     The effective date of the Plan is July 22, 2010. No Incentive Stock Options shall be granted
under the Plan after July 21, 2020, and no other Awards shall be granted under the Plan after the
tenth anniversary of the effective date of the Plan or, if earlier, the date the Plan is
terminated. Further, due to Code Section 162(m), the Committee may not issue any performance-based
awards to covered employees after our 2015 annual meeting of stockholders. Notwithstanding the
foregoing, the termination of the Plan shall not preclude the Company from complying with the terms
of Awards outstanding on the date the Plan terminates.




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