Form of Non-Qualified Stock Option Agreement



 EXHIBIT 10.24 
  
 NON-QUALIFIED STOCK OPTION AGREEMENT 
  
 AGREEMENT, dated as of              between EPL Holdings,
Inc., a Delaware corporation (the “Company”), and [            ] (the “Optionee”). 
  
 W I T N E S S E T H: 
  
 WHEREAS, the Company, acting through its Board of Directors (the
“Board”) has granted to the Optionee, effective as of the date of this Agreement, an option to purchase shares of common stock, $.10 par value per share, of the Company (the “Common Stock”) on the terms and subject
to the conditions set forth in this Agreement; 
  
 NOW, THEREFORE,
in consideration of the premises and of the mutual agreements contained in this Agreement, the parties hereto agree as follows: 
  
 SECTION 1. Definitions. As used in this Agreement, the following terms have the meanings set forth below: 
  
 “Affiliate” of any Person means any other
Person directly or indirectly controlled by, controlling, or under common control with such Person. 
  
 “Board” means the Board of Directors of the Company. 
  
 “Cause” means action by the Optionee that constitutes misconduct, dishonesty, a deliberate
and premeditated act against the Company or its Affiliates, the commission of a felony or substance abuse or inebriation which renders the Optionee unfit to perform his duties. 
  
 “Cumulative EBITDA” means, with respect to any fiscal year of the Company set forth on
Annex I to this Agreement, the actual aggregate amount of EBITDA of the Company and its consolidated subsidiaries for the period commencing on December 30, 1999, and ending on the last day of such fiscal year (with such period being treated as one
accounting period for such purposes). 
  
 “Cumulative EBITDA Target” means, with respect to any fiscal year of the Company set forth on Annex I to this Agreement, the applicable amount set forth opposite such fiscal year on Annex I. 
  
 “EBITDA” means the income of the Company
(i) before, without duplication, interest expense, amortization of deferred financing fees and acquisition related bank/financing fees, income taxes, depreciation and amortization before gains (or losses) on the sale of Company operated restaurants
or other significant assets, (ii) after all bonuses and profit sharing expenses of the Company of any kind and (iii) after eliminating the non-cash gain on prior sale of the Company’s distribution business. 
  







 “EBITDA Target” means, with respect to any fiscal year of the Company
set forth on Annex I to this Agreement, the applicable amount set forth opposite such fiscal year on Annex I. 
  
 “Fair Market Value” of a share of Common Stock on any date shall be, if the Common Stock is listed on a national stock
exchange, the officially quoted closing price on such stock exchange, or if the Common Stock is listed on the NASDAQ National Market, the officially quoted closing price on NASDAQ, or, if the Common Stock is listed on NASDAQ but not on the National
Market, the average of the closing bid and asked prices reported by NASDAQ, in each case on the date as of which the value is to be determined (or if such date is not a trading day, as of the preceding trading day), or if the Common Stock is not so
listed, the fair market value determined in good faith by the Board. 
  
 “Option” has the meaning ascribed to such term in Section 2 of this Agreement. 
  
 “Option Shares” has the meaning ascribed to such term in Section 2 of this Agreement. 
  
 “Person” means any individual, partnership,
corporation, group, trust or other legal entity. 
  
 “Shares” means, collectively, the shares of Common Stock subject to the Option, whether such shares are Option Shares or Vested Shares. 
  
 “Transaction” shall mean (i) the sale of all, or substantially all, of the Company’s
consolidated assets, including, without limitation, a sale of all or substantially all of the assets of the Company or any of its subsidiaries whose assets constitute all or substantially all of the Company’s consolidated assets or the sale of
a majority of the outstanding shares of voting capital stock of any subsidiary or subsidiaries whose consolidated assets so constitute), in any single transaction or series of related transactions; (ii) the sale of a majority of the outstanding
shares of capital stock of the Company (on a fully-diluted basis); or (iii) any merger or consolidation of the Company with or into another corporation unless, after giving effect to such merger or consolidation, the holders of the Company’s
voting securities (on a fully-diluted basis), immediately prior to the merger or consolidation, own voting securities (on a fully-diluted basis) of the surviving or resulting corporation representing a majority of the ordinary voting power to elect
directors of the surviving or resulting corporation in the same proportions that they held their shares prior to such merger. 
  
 “Vested Shares” means the Option Shares with respect to which the Option is exercisable at any particular time.

  
  

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 SECTION 2. Option; Option Price. On the terms and subject to the conditions of this Agreement, the
Optionee shall have the option (the “Option”) to purchase up to [            ] shares (the “Option Shares”) of Common Stock at the price of
$         per Option Share (the “Option Price”). 
  
 SECTION 3. Term. The term of the option (the “Option Term”) shall commence on the date hereof and expire on the tenth anniversary
of the date hereof, unless the Option shall theretofore have been terminated in accordance with the terms of this Agreement. 
  
 SECTION 4. Time of Exercise. 
  
 (a) Unless accelerated as otherwise provided in Section 4(b) or 4(c) of this Agreement, the Option shall become exercisable as to 100% of the Option
Shares on the seventh anniversary of the date hereof. 
  
 (b) (i)
On the last day of each of the Company’s fiscal years beginning with the fiscal year ending [                ] through the fiscal year ending
[            ] (each, an “Accelerated Vesting Date”), if the Company’s EBITDA for the fiscal year ending on such Accelerated Vesting Date is equal to or exceeds the
EBITDA Target for such fiscal year, then the Option shall immediately become exercisable as to 20% of the Option Shares. 
  
 (ii) Notwithstanding any failure by the Company to meet the EBITDA Target for any fiscal year, the portion of the Option which would have become
exercisable pursuant to subsection (i) above on the applicable Accelerated Vesting Date shall become exercisable on a subsequent Accelerated Vesting Date if, with respect to such subsequent Accelerated Vesting Date, the Company’s Cumulative
EBITDA for the fiscal year ending on such Accelerated Vesting Date is equal to or greater than the Cumulative EBITDA Target for such fiscal year. 
  
 (c) In the event that American Securities Partners II, L.P. or American Securities Partners II(B), L.P. (“ASP”) shall have received, upon
one or more sales, transfers or other dispositions of capital stock of the Company to persons or entities other than ASP or its Affiliates, an aggregate amount in cash in excess of twice the amount invested by ASP in the capital stock of the
Company, the Option shall immediately become exercisable as to 100% of the Option Shares. 
  
 (d) In the event the Company makes any capital expenditures not contemplated by the projections upon which the EBITDA and Cumulative EBITDA Targets are based, or consummates any mergers or acquisitions or divestitures
(whether of assets or stock or other interests) or other extraordinary transactions, the Board will determine in good faith appropriate adjustments to the EBITDA and Cumulative EBITDA Targets, which adjustments shall be final and binding.

  

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 (e) Except as otherwise provided in Section 6, the Option shall remain exercisable as to all such Vested
Shares until the expiration of the Option Term. 
  
 SECTION 5.
Procedure for Exercise. 
  
 (a) The Option may be exercised
with respect to Vested Shares, from time to time, in whole or in part (but for the purchase of whole shares only), by delivery of a written notice (the “Exercise Notice”) from the Optionee to the Company, which Exercise Notice
shall: 
  
 (i) state that the Optionee elects to
exercise the Option; 
  
 (ii) state the number of
Vested Shares with respect to which the Optionee is exercising the Option; 
  
 (iii) include any representations of the Optionee required under Section 10 hereof; 
  
 (iv) in the event that the Option shall be exercised by the representative of the Optionee’s estate pursuant to Section 6, include
appropriate proof of the right of such Person to exercise the Option; 
  
 (v) state the date upon which the Optionee desires to consummate the purchase of such Vested Shares (which date must be prior to the termination of the Option); and 
  
 (vi) comply with such further provisions as the Company may
reasonably require. 
  
 (b) Payment of the Option Price for the
Vested Shares to be purchased on the exercise of the Option shall be made by certified or bank cashier’s check payable to the order of the Company, delivery of shares of Common Stock held for as least six months, valued at their Fair Market
Value as of the trading day immediately prior to the date of exercise or by a combination of any of the foregoing means of payment. 
  
 (c) As a condition to the exercise of the Option and prior to the issuance of any Vested Shares, the Optionee (or the representative of his estate) shall
be required to execute a Non-Officer Stockholders Agreement (the “Non-Officer Stockholders Agreement”) among the Company, EPL Intermediate, Inc., the Optionee (or representative) and the other stockholders of the Company,
substantially in the form attached hereto as Annex II. 
  
 (d) The
Company shall be entitled to require, as a condition of delivery of the Vested Shares, that the Optionee agree to remit when due an amount in cash 
  

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 sufficient to satisfy all current or estimated future federal, state and local withholding, and employment taxes relating
thereto. 
  
 SECTION 6. Termination of Service. All or any
part of the Option, to the extent unexercised, shall terminate immediately upon the Optionee’s termination of employment with the Company (or any of its affiliates), except that the Optionee shall have until the end of the third month following
the date of such termination of employment to exercise any portion of the Option that he could have exercised on the date of such termination of employment; provided, however, that such exercise must be accomplished prior to the
expiration of the Option Term. Notwithstanding the foregoing, if the Optionee’s cessation is due to his retirement, total and permanent disability (as determined by the Board) or death, the Optionee, or the representative of the estate of the
Optionee, as the case may be, may exercise any portion of the Option which the Optionee could have exercised on the date of such cessation for a period of six months thereafter; provided, however, that such exercise must be
accomplished prior to the expiration of the Option Term. Notwithstanding the foregoing, in the event such termination of employment occurs for Cause, the unexercised portion of the Option shall terminate immediately and the Optionee shall have no
right thereafter to exercise any part of the Option. Notwithstanding the preceding, any portion of the Option which is not exercisable at the time of termination of the Optionee’s employment (for any reason) shall terminate and become null and
void. 
  
 SECTION 7. No Rights as a Stockholder. The
Optionee shall not have any rights or privileges of a stockholder with respect to any Shares unless and until certificates representing such Shares shall be issued by the Company to such Optionee. 
  
 SECTION 8. Additional Provisions Related to Exercise. In the event of
the exercise of the Option at a time when there is not in effect a registration statement under the Securities Act of 1933, as amended, relating to the Shares, the Optionee hereby represents and warrants, and by virtue of such exercise shall be
deemed to represent and warrant to the Company that the Option Shares are being acquired for investment only and not with a view to the distribution thereof, and the Optionee shall provide the Company with such further representations and warranties
as the Board may reasonably require in order to ensure compliance with applicable federal and state securities, “blue sky” and other laws. No Shares shall be purchased upon the exercise of the Option unless and until the Company and/or the
Optionee shall have complied with all applicable federal or state registration, listing and/or qualification requirements and all other requirements of law or of any regulatory agencies having jurisdiction. 
  
 SECTION 9. Restriction on Transfer. 
  
 (a) The Option may not be transferred, pledged, assigned, hypothecated or
otherwise disposed of in any way by the Optionee and may be exercised during the lifetime of the Optionee only by the Optionee. If the Optionee dies, the Option shall thereafter be exercisable, during the period specified in Section 6, by the
representative 
  

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 of his estate to the full extent to which the Option was exercisable by the Optionee at the time of his death. The Option
shall not be subject to execution, attachment or similar process. Any attempted assignment, transfer, pledge, hypothecation or other disposition of the Option contrary to the provisions hereof, and the levy of any execution, attachment or similar
process upon the Option, shall be null and void and without effect. 
  
 (b) Any shares issued to the Optionee upon exercise of the Option shall be subject to the restrictions contained in the Stockholders’ Agreement and shall be deemed Stock (as defined in the Stockholders’ Agreement) for all purposes
thereunder. 
  
 SECTION 10. Restrictive Legend. All stock
certificates representing shares issued upon exercise of the Option shall, unless otherwise determined by the Board, have affixed thereto a legend substantially in the following form: 
  
 “THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A STOCKHOLDERS’ AGREEMENT AMONG EPL
HOLDINGS, INC., EPL INTERMEDIATE, INC. AND CERTAIN MINORITY STOCKHOLDERS NAMED THEREIN, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY. NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SUCH STOCKHOLDERS’ AGREEMENT. THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY ALL OF THE PROVISIONS OF SUCH
STOCKHOLDERS’ AGREEMENT.” 
  
 “THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF EITHER AN EFFECTIVE
REGISTRATION STATEMENT FOR THESE SHARES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR AN OPINION OF COUNSEL THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT.” 
  
 SECTION 11. Optionee’s Service. Nothing in the Option shall confer upon the Optionee any right to continue in
the employ of the Company or any of its Affiliates or interfere in any way with the right of the Company or its Affiliates or stockholders, as the case may be, to terminate the Optionee’s employment or to increase or decrease the
Optionee’s compensation at any time. 
  
 SECTION 12.
Adjustment. 
  

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 (a) Subject to Section 9(b), if the Common Stock is changed by reason of a stock split, reverse stock
split, stock dividend or recapitalization, or converted into or exchanged for other securities as a result of a merger, consolidation or reorganization, the Board shall make such adjustment in the number and class of shares of stock subject to the
Option, and such adjustments to the Option Price, as shall be equitable and appropriate in its good faith judgment under the circumstances. 
  
 (b) The following rules shall apply in connection with the occurrence of any Transaction: 
  
 (i) the Optionee shall be given (A) written notice of such Transaction at least 20 days prior to its
proposed effective date (as specified in such notice) and (B) an opportunity during the period commencing with delivery of such notice and ending 10 days prior to such proposed effective date, to exercise the Option in full; provided,
however, that upon the occurrence of a Transaction, the Option, to the extent not so exercised, shall automatically terminate; and 
  
 (ii) notwithstanding anything contained in Section 12(b)(i), Section 12(b)(i) shall not be applicable if provision shall be made in
connection with such Transaction for the assumption of the Option by, or the substitution for the Option of new options covering the stock of, the surviving successor of purchasing corporation, or a parent or subsidiary thereof, with appropriate
adjustments as to the number, kind and option price of shares subject to the Option; provided that no such provision shall have any impact on Optionee’s right to exercise the Option with respect to Vested Shares prior to such Transaction.

  
 (c) The following rules shall apply in connection with Section
12(a) and (b) above: 
  
 (i) no fractional shares
shall be issued as a result of any such adjustment, and any fractional shares resulting from the computations pursuant to Section 12(a) or (b) shall be eliminated without consideration from the Option; 
  
 (ii) no adjustment shall be made for the issuance to
stockholders or rights to subscribe for additional shares of Common Stock or other securities; and 
  
 (iii) any adjustment referred to in Section 12(a) or (b) shall be made by the Board in its sole discretion and shall be conclusive and
binding on the Optionee. 
  
 SECTION 13. Notices. All
notices, claims, certificates, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given and delivered if personally delivered or if sent by nationally recognized overnight courier, by
telecopy or by registered or certified mail, return receipt requested and postage prepaid, addressed as follows: 
  

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	 	(a)	if to the Company, to it at: 

  
 EPL Holdings, Inc. 
 c/o American Securities Capital Partners, L.P. 
 122 East 42nd Street, Suite 2400 
 New York, New York 10168 
 Telephone: (212) 697- 5524 
 Attention: David Horing 
  
 with a copy to: 
  
 Simpson Thacher & Bartlett 
 425 Lexington Avenue 
 New York, New York 10017 
 Attention: Richard Garvey 
  

	 	(b)	if to the Optionee, to him at such Optionee’s address as most recently supplied to the Company and set forth in the Company’s records 

  
 or to such other address as the party to whom notice is to be given may have furnished to the
other party in writing in accordance herewith. Any such notice or communication shall be deemed to have been received (i) in the case of personal delivery, on the date of such delivery (or if such date is not a business day, on the next business day
after the date sent), (ii) in the case of nationally-recognized overnight courier, on the next business day after the date sent, (iii) in the case of telecopy transmission, when received (or if not sent on a business day, on the next business day
after the date sent), and (iv) in the case of mailing, on the third business day following the date on which the piece of mail containing such communication is posted. 
  
 SECTION 14. Waiver of Breach. The waiver by either party of a breach of any provision of this Agreement must be in
writing and shall not operate or be construed as a waiver of any other or subsequent breach. 
  
 SECTION 15. Optionee’s Undertaking. The Optionee hereby agrees to take whatever additional actions and execute whatever additional documents the Company may in its reasonable judgement deem necessary or
advisable in order to carry out or effect one or more of the obligations or restrictions imposed on the Optionee pursuant to the provisions of this Agreement. 
  

SECTION 16. Amendment. This Agreement may not be amended, terminated, suspended or otherwise modified except in a written instrument, duly
executed by both parties. 
  
 SECTION 17. Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware (without giving effect to principles of conflicts of laws). 
  

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 SECTION 18. Counterparts. This Agreement may be executed in one or more counterparts, and each
such counterpart shall be deemed to be an original, but all such counterparts together shall constitute but one agreement. 
  
 SECTION 19. Entire Agreement. This Agreement (and the other writings incorporated by reference herein) constitute the entire agreement between the
parties with respect to the subject matter hereof and supersede all prior written or oral negotiations, commitments, representations and agreements with respect thereto. 
  
 SECTION 20. Severability. In the event any one or more of the provisions of this Agreement should be held invalid,
illegal or unenforceable in any respect in any jurisdiction, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. 
  
 IN WITNESS WHEREOF, the parties hereto have executed this Non-Qualified Stock
Option Agreement as of the date first written above. 
  

			
	EPL HOLDINGS, INC.
		
	By:	 	 
	 	 	

	 	 	Name:
	 	 	Title:
	
	OPTIONEE
		
	 	 	 
	 	 	

	 	 	Name: [            ]


  

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