Exhibit 4.7


 


JEFFREY J. O’NEILL

STOCK AWARD AGREEMENT


 


THIS AGREEMENT (this “Agreement”) is
made effective as of January 9, 2009, by and between Einstein Noah
Restaurant Group, Inc., a Delaware corporation (together with its
Affiliated Corporations, except where the context otherwise requires, the “Company”),
and Jeffrey J. O’Neill (“Executive”).


 


A.            Executive commenced
employment with the Company on December 3, 2008 as the Chief Executive
Officer of the Company.


 


B.            As an inducement for
Executive to accept employment with the Company, the Company agreed, among
other things, to award to Executive a designated number of shares of Company
common stock, par value $0.001 per share (the “Shares”) with an
aggregate Fair Market Value of $375,000 determined by the closing sale price of
Company common stock on January 9, 2009 (rounded up to the next whole
share in the event of a fractional share), subject to the terms and conditions
set forth in this Agreement.


 


C.            All capitalized terms in
this Agreement shall have the meaning assigned to them throughout this
Agreement, including Section 7(h) hereof.


 


NOW, THEREFORE, the Company and Executive
hereby agree as follows:


 


1.             AWARD OF
RESTRICTED SHARES


 


a.             Award.  On the terms and subject to
the conditions set forth in this Agreement, the Company hereby awards to
Executive effective as of January 9, 2009, following the effectiveness of
the registration statement filed with the Securities and Exchange Commission
with respect to the Shares (the “Award Date”), and Executive accepts
from the Company, an award of 63,776 Restricted Shares, as described in Section 2.


 


b.             Stockholder
Rights.  Unless and until the Shares
are forfeited as hereinafter provided, Executive shall have all of the rights
of a stockholder (including voting, dividend and liquidation rights) with
respect to the Shares, subject, however, to the terms and conditions set forth
in this Agreement.


 


c.             Compliance
with Law.  No Shares shall
be issued or delivered pursuant to this Agreement unless, in the opinion of counsel
for the Company, there shall have been compliance with all applicable
requirements of Federal and state securities laws, all applicable listing
requirements of the Nasdaq Global Market, if applicable, and all other
requirements of law or of any regulatory bodies having jurisdiction over such
issuance and delivery.


 

















 


d.             Certificates;
Book Entry.  Notwithstanding
any other provisions of this Agreement to the contrary, the Company may elect
to satisfy any requirement under this Agreement for the delivery of stock
certificates through the use of book-entry.


 


2.             VESTING;
RESTRICTIONS


 


a.             Vesting.  Executive hereby accepts the Shares when
issued, subject to the terms and conditions set forth in this Agreement.  The Shares shall be issued effective as of
the Award Date subject to Forfeiture Restrictions, which shall lapse as set
forth below (the “Restricted Shares”).


 


b.             Forfeiture
Restrictions.  The
Restricted Shares may not be sold, assigned, pledged, exchanged, hypothecated
or otherwise transferred, encumbered or disposed of to the extent then subject
to the Forfeiture Restrictions.  The
prohibition against transfer and the obligation to forfeit and surrender
Restricted Shares to the Company upon termination of continuous employment are
referred to as the “Forfeiture Restrictions.”  The Forfeiture Restrictions shall be binding
upon and enforceable against any transferee of the Restricted Shares.


 


c.             Lapse
of Forfeiture Restrictions.  Except as
provided otherwise in this Agreement, subject to Executive’s continuous
employment with the Company from the Award Date through each lapse date set
forth below, the Forfeiture Restrictions shall lapse as to the Restricted
Shares in accordance with the following schedule:


 




	
  Number of Shares

  	
   

  	
  Forfeiture Restrictions –

  Lapse Date

  	
   

  
	
  21,259

  	
   

  	
  January 9, 2010

  	
   

  
	
  21,259

  	
   

  	
  January 9, 2011

  	
   

  
	
  21,258

  	
   

  	
  January 9, 2012

  	
   

  






 


Upon the voluntary or
involuntary termination of Executive’s continuous employment with the Company,
including on account of death or Disability, any Restricted Shares held by
Executive to which the Forfeiture Restrictions have not lapsed, shall
immediately be forfeited.  Upon
forfeiture of the Restricted Shares, Executive shall have no further rights
with respect to such Shares, including but not limited to voting, dividend and
liquidation rights.


 


d.             Enforcement
of Restrictions.  All
certificates representing Shares shall include restrictive legends regarding
applicable Forfeiture Restrictions, restrictions on transfer and compliance
with securities law requirements, as determined by the Committee.


 


e.             Adjustments;
Recapitalization.  If the
Company shall at any time increase or decrease the number of its outstanding
Shares or change in any way the rights 


 


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and privileges of such
Shares by means of the payment of a stock dividend or any distribution upon
such Shares payable in stock, or through a stock split, subdivision,
consolidation, combination, reclassification or recapitalization involving the
Shares, then in relation to the Shares that are affected by one or more of the
above events, any new, substituted or additional securities or other property
which by reason of such transaction are distributed with respect to any
Restricted Shares or into which such Restricted Shares thereby became
convertible shall immediately be subject to the Forfeiture Restrictions, but
only to the extent the Restricted Shares are at the time covered by such
Forfeiture Restrictions.  Any adjustments
or determinations made by the Committee shall be final and binding upon all
persons.


 


3.             CORPORATE
TRANSACTION


 


a.             Committee
Action.  Upon the occurrence of a
Corporate Transaction, as defined in Section 3(c) hereof, the
Committee shall take any one or more of the following actions with respect to
outstanding Restricted Shares:


 


i.              Provide that the Forfeiture
Restrictions with respect to all or a portion of the Restricted Shares shall
lapse upon consummation of the Corporate Transaction;


 


ii.             Provide that all or a
portion of any Restricted Shares held upon the consummation of the Corporate
Transaction shall be forfeited at the time of the closing;


 


iii.            Provide for the assumption
or substitution of all or a portion of any Restricted Shares held upon
consummation of the Corporate Transaction; or


 


iv.            Make any other provision for
outstanding Restricted Shares as the Committee deems appropriate.


 


Notwithstanding the foregoing, upon the occurrence
of a Change of Control, as defined in Section 3(d), all Forfeiture
Restrictions with respect to the Restricted Shares shall automatically lapse
upon consummation of the Change of Control.


 


b.             Assumption
or Substitution of Restricted Shares.  The Company, or
the successor or purchaser, as the case may be, may make adequate provision for
the assumption of the outstanding Restricted Shares or the substitution of new
restricted shares for the outstanding Restricted Shares on terms comparable to
the outstanding Restricted Shares.


 


c.             Corporate
Transaction.  A Corporate
Transaction shall include the following:


 


i.              Merger; Reorganization.  The merger or consolidation of the Company
with or into another corporation or other reorganization (other than a
reorganization under the United States Bankruptcy Code) of the Company (other
than a consolidation, merger, or 


 


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reorganization in which the
Company is the continuing corporation and which does not result in any
reclassification or change of outstanding Shares); or


 


ii.             Sale.  The sale or conveyance of the property of the
Company as an entirety or substantially as an entirety (other than a sale or
conveyance in which the Company continues as a holding company of an entity or
entities that conduct the business or businesses formerly conducted by the
Company); or


 


iii.            Liquidation.  The dissolution or liquidation of the
Company; or


 


iv.            Change of Control.  The consummation of a “Change
of Control” transaction or event as defined in Section 3(d) hereof;
or


 


v.             Other Transactions.  Any other transaction that the board of
directors of the Company determines by resolution to be a Corporate
Transaction.


 


d.             Change of Control.  A “Change of Control”
means any transaction or event occurring on or after the date of this Agreement
as a direct or indirect result of which (i) any Person or any group in the
aggregate equity interests (other than Greenlight Capital, L.L.C. and its
affiliates) shall (1) beneficially own (directly or indirectly) equity
interests of the Company having more than 50% of the aggregate voting power of
all equity interests of the Company at the time outstanding or (2) have
the right or power to appoint a majority of the board of directors of the
Company; (ii) during any period of two consecutive years, individuals who
at the beginning of such period constituted the board of directors of the
Company (together with any new directors whose election by such board of
directors or whose nomination for election by the shareholders of the Company
was approved by a vote of a majority of the directors of the Company then still
in office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any
reason to constitute at least a majority of the board of directors of the
Company then in office; or (iii) any event or circumstance constituting a “change
of control” under any documentation evidencing or governing any indebtedness of
the Company in a principal amount in excess of $10.0 million shall occur which
results in an obligation of the Company to prepay (by acceleration or otherwise
purchase, offer to purchase, redeem or defease) all or a portion of such
indebtedness.


 


The terms “beneficially own”, “beneficial
owner” and “Group” shall have the meanings ascribed to such terms in Sections
13(d) and 14(d) of the Exchange Act; provided, however, that, for the
purposes of this definition of “Change of Control” only, any Person or Group
other than Greenlight Capital, L.L.C. shall be deemed to be the current
beneficial owner of any Shares of voting stock of the Company, or any interests
or participations in, or measured by the profits of, the Company, that are
issuable upon the exercise of any option, warrant or similar right, or upon the
conversion of any convertible security, in either case owned by such Person or
Group without regard to whether such option, warrant or convertible security is
currently exercisable or convertible or will become convertible or exercisable
within 60 days if the exercise or 


 


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conversion price thereof at the time of grant
was lower than the fair market value of the underlying security at the time of
grant.


 


4.             EFFECT OF
PROHIBITED TRANSFER


 


If any transfer of
Restricted Shares is made or attempted to be made contrary to the terms of this
Agreement, the Company shall have the right to acquire for its own account,
without the payment of any consideration, such Shares from the owner thereof or
his transferee, at any time before or after such prohibited transfer.  In addition to any other legal or equitable
remedies it may have, the Company may enforce its rights to specific
performance to the extent permitted by law and may exercise such other
equitable remedies then available.  The
Company may refuse for any purpose to recognize any transferee who receives
such Shares contrary to the provisions of this Agreement as a stockholder of
the Company and may retain and/or recover all dividends on such Shares that
were paid or payable subsequent to the date on which the prohibited transfer was
made or attempted.


 


5.             TAX WITHHOLDING


 


The Company or any
Affiliated Corporation shall have the right to deduct from payments of any kind
otherwise due to Executive, any Federal, state, local or foreign taxes of any
kind required by law to be withheld upon the issuance, vesting or payment of
any Shares or dividends.  The Company may
withhold taxes from any payments due to Executive or Executive may deliver a
check to the Company.  Executive may
elect to satisfy the minimum statutory withholding obligations, in whole or in
part, by delivering to the Company unrestricted Shares already owned by
Executive (for at least six months or any other minimum period required by the
Company).  The Shares delivered shall
have an aggregate Fair Market Value not in excess of the minimum statutory
total tax withholding obligations.  The
Fair Market Value of the Shares used to satisfy the withholding obligation
shall be determined by the Company as of the date that the amount of tax to be
withheld is to be determined (the “Tax Date”).  Shares used to satisfy any tax withholding
obligation must be vested and cannot be subject to any repurchase, forfeiture,
or other similar requirements.  Any
election must be made prior to the Tax Date, shall be irrevocable and shall be
subject to any restrictions or limitations that the Committee, in its sole
discretion, deems appropriate.


 


6.             COMPLIANCE WITH
SECURITIES LAWS


 


                The Company may
require Executive to give written assurances in substance and form satisfactory
to the Company and its counsel to the effect that he is acquiring the Shares
for his own account for investment and not with any present intention of
selling or otherwise distributing the same, and to such other effects as the
Company deems necessary or appropriate in order to comply with Federal and
applicable state securities laws. 
Legends evidencing such restrictions may be placed on any stock
certificates for the Shares.


 


This Agreement shall be
subject to the requirement that if at any time counsel to the Company shall determine
that the listing, registration or qualification of the Shares upon any
securities exchange or under any state or Federal law, or the consent or 


 


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approval of any governmental or regulatory body, is
necessary as a condition of, or in connection with, the issuance of such
Shares, the Shares may not be issued or transferred unless such listing,
registration, qualification, consent or approval shall have been effected or
obtained on conditions acceptable to the Committee.  Nothing herein shall be deemed to require the
Company to apply for or obtain such listing, registration or
qualification.  Any Shares received
pursuant to this Agreement shall be subject to all state and Federal laws and
the consent and approval of any governmental or regulatory bodies, and may not
be held, sold, transferred or otherwise disposed of contrary to any state or
Federal law, or without the consent or approval of all necessary governmental
or regulatory bodies.


 


7.             MISCELLANEOUS


 


a.             Tax
Treatment; Section 83(b).  Executive may incur tax
liability as a result of the vesting of Restricted Shares and the payment of
dividends or the disposition of Shares. 
Executive agrees to consult his own tax adviser for tax advice.


 


Executive hereby acknowledges that Executive
has been informed that he may file with the Internal Revenue Service, within 30
days of the Award Date, an irrevocable election pursuant to Section 83(b) of
the Code to be taxed as of the Award Date on the Fair Market Value of the
Restricted Shares.  If Executive chooses
to file an election under Section 83(b) of the Code, Executive hereby
agrees to promptly deliver a copy of any such election to the Chief Financial
Officer of the Company (or his designee).


 


b.             Notices.  Any notice required or
permitted to be given under this Agreement shall be in writing and shall be
given by first class registered or certified mail, postage prepaid, or by
personal delivery to the appropriate party, addressed:


 


i.              If to the Company, to Attn:
General Counsel, Einstein Noah Restaurant Group, Inc., 555 Zang Street, Suite 300,
Lakewood, CO  80228, or at such other
address as may have been furnished to Executive in writing by the Company; or


 


ii.             If to Executive, at the
address set forth following his name and signature, below, or at such other
address as may have been furnished to the Company by Executive.


 


Any such notice shall be deemed to have been
given as of the second day after deposit in the United States mail, postage
prepaid, properly addressed as set forth above, in the case of mailed notice,
or as of the date delivered in the case of personal delivery.


 


c.             Governing
Law.  The validity and construction
of this Agreement shall be construed in accordance with and governed by the
laws of the State of Colorado other than any conflicts or choice of law rule or
principle that might otherwise refer construction or interpretation of this
Agreement to the substantive laws of any other jurisdiction.


 


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d.             Continued
Service.  Neither the award of
Restricted Shares nor this Agreement gives Executive the right to continue
employment or other service with the Company or its Affiliated Corporations in
any capacity.


 


e.             Binding
Effect.  This Agreement shall be binding
upon and inure to the benefit of the Company and Executive and their respective
heirs, executors, administrators, legal representatives, successors and
assigns.


 


f.              Construction;
Severability.  The section
headings contained herein are for reference purposes only and shall not in any
way affect the meaning or interpretation of this Agreement.  The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement and each other provision of this
Agreement shall be severable and enforceable to the extent permitted by law.


 


g.             Other
Employee Benefits.  The amount
of any compensation deemed to be received by Executive as a result of this
Agreement and the issuances of Shares hereunder, shall not constitute “earnings”
or “compensation” with respect to which any other employee benefits of
Executive are determined, including without limitation benefits under any
pension, profit sharing, 401(k), bonus, life insurance or salary continuation
plan, except to the extent specifically provided in such separate plan or
agreement.


 


h.             Other
Definitions.  The
following terms when used in this Agreement shall have the meanings set forth
below:


 


“Affiliated Corporation”
means any corporation or other entity that is affiliated with Einstein Noah
Restaurant Group, Inc. through stock ownership or otherwise and is
designated as an “Affiliated Corporation” by the board of directors of the
Company.


 


“Board” means
the board of directors of Einstein Noah Restaurant Group, Inc.


 


“Code” means the
Internal Revenue Code of 1986, as it may be amended from time to time.


 


“Committee”
means the Compensation Committee of the Company.  If applicable, the Committee shall be
constituted at all times as to permit the Shares issued pursuant to the
Agreement to comply with Rule 16b-3 or any successor rule promulgated
under the Securities Exchange Act of 1934, as amended from time to time, or if
no committee has been appointed, the Board.


 


“Disability” means
permanent and total disability within the meaning of Section 22(e)(3) of
the Code.


 


“Fair Market Value”
means, as of a given date, (i) the closing price of a Share on the
principal stock exchange on which Shares are then trading,  if any (or as reported on any composite index
that includes such principal exchange); (ii) if the Shares are not traded
on an exchange but are quoted on a quotation system, the closing sale price for
the Shares on such date as reported by the quotation system, or if Shares were
not traded on 


 


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such date, then on the next preceding date on
which a trade occurred; or (iii) if the Shares are not publicly traded on
an exchange and not quoted on a quotation system, the Fair Market Value of a
Share shall be determined by the Committee acting in good faith.


 


“Securities Act”
means the U.S. Securities Act of 1933, as amended from time to time.


 


8.             INTERPRETATION;
ADMINISTRATION


 


The Committee shall have the full power and
authority to administer the terms and conditions of this Agreement, to adopt
any procedures, make any determinations, correct any defect, supply any
omission or reconcile any inconsistency with respect to the terms and
conditions of this Agreement in the manner and to the extent it shall deem
expedient and it shall be the sole and final judge of such expediency.  No member of the Committee shall be liable
for any action or determination made in good faith.  The determinations, interpretations and other
actions of the Committee with respect to this Agreement and the Shares shall be
binding and conclusive for all purposes and on all persons.


 


9.             AMENDMENT


 


The terms and conditions set
forth in this Agreement may only be amended by the written consent of the
Company and Executive.


 


[SIGNATURE PAGE FOLLOWS]


 


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IN WITNESS WHEREOF, the
parties have executed this Agreement in one or more counterparts on the dates
set forth below.


 


 


	
   

  	
  EINSTEIN NOAH RESTAURANT

  GROUP, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jill B.W. Sisson

  
	
   

  	
   

  	
  Jill B.W.
  Sisson, Esq.,

  
	
   

  	
   

  	
  General Counsel and
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
  January 9, 2009

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Jeffrey J. O’Neill

  
	
   

  	
  Jeffrey J. O’Neill

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
  January 9, 2009