O CHARLEYS INC
EX-10.4 FORM OF RESTRICTED STOCK AGREEMENT
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<TYPE>EX-10.4
<SEQUENCE>5
<FILENAME>g91871exv10w4.txt
<DESCRIPTION>EX-10.4 FORM OF RESTRICTED STOCK AGREEMENT
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                                                                    EXHIBIT 10.4

                                O'CHARLEY'S INC.

                           RESTRICTED STOCK AGREEMENT

         This RESTRICTED STOCK AGREEMENT (the "Agreement") is by and between
O'Charley's Inc., a Tennessee corporation (the "Company"), and ________________
(the "Grantee"). Capitalized terms used but not defined in this Agreement shall
have the meaning ascribed to such terms in the O'Charley's 2000 Stock Incentive
Plan (the "Plan").

         Section 1. Restricted Stock Award. The Grantee is hereby granted the
right to receive ________ shares (the "Restricted Stock") of the Company's
common stock, no par value per share (the "Common Stock"), subject to the terms
and conditions of this Agreement and the Plan.

         Section 2. Vesting of the Award. Subject to Sections 5 and 9 hereof,
the shares of Restricted Stock granted pursuant to Section 1 hereof shall vest
at such times (each, a "Vesting Date") and in the amounts set forth below:

         (a) (i) none of the shares of Restricted Stock granted hereunder shall
vest on the first anniversary of the date of grant in the event that the
Company's reported diluted earnings per share for the [2004] fiscal year (the
"[2004] Cumulative EPS") is less than $______ (the "[2004] Minimum Vesting EPS
Target"); (ii) 18.75% of the total number of shares of Restricted Stock granted
hereunder shall vest on the first anniversary of the date of grant if and only
if the Company's [2004] Cumulative EPS is equal to or exceeds $_____ (the
"[2004] Full Vesting EPS Target"); and (iii) in the event that the Company's
[2004] Cumulative EPS is less than the [2004] Full Vesting EPS Target but
greater than or equal to the [2004] Minimum Vesting EPS Target, the number of
shares of Restricted Stock that shall vest on the first anniversary of the date
of grant shall be determined on a pro rata(1) basis;

         (b) (i) none of the shares of Restricted Stock granted hereunder shall
vest on the second anniversary of the date of grant in the event that the
Company's cumulative reported diluted earnings per share for the [2004 and 2005]
fiscal years (the "[2004-2005] Cumulative EPS") is less than $_____ (the "[2005]
Minimum Vesting EPS Target"); (ii) 18.75% of the total number of shares of
Restricted Stock granted hereunder shall vest on the second anniversary of the
date of grant if and only if the Company's [2004-2005] Cumulative EPS is equal
to or exceeds $_____ (the "[2005] Full Vesting EPS Target"); and (iii) in the
event that the Company's [2004-2005] Cumulative EPS is less than the [2005] Full
Vesting EPS Target but greater than or

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(1) For purposes of calculating the pro rata number of shares of Restricted
Stock that shall vest on the first anniversary of the date of grant, multiply
the number of shares of Restricted Stock granted hereunder by the result of the
following formula (rounded to four decimal points):

0.1875 * [(([2004] Cumulative EPS - [2004] Minimum Vesting EPS Target)/([2004]
Full Vesting EPS Target - [2004] Minimum Vesting EPS Target) * 0.75) + 0.25]


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equal to the [2005] Minimum Vesting EPS Target, the number of shares of
Restricted Stock that shall vest on the second anniversary of the date of grant
shall be determined on a pro rata(2) basis;

         (c) (i) none of the shares of Restricted Stock granted hereunder shall
vest on the third anniversary of the date of grant in the event that the
Company's cumulative reported diluted earnings per share for the [2004 through
2006] fiscal years (the "[2004-2006] Cumulative EPS") is less than $_____ (the
"[2006] Minimum Vesting EPS Target"); (ii) 18.75% of the total number of shares
of Restricted Stock granted hereunder shall vest on the third anniversary of the
date of grant if and only if the Company's [2004-2006] Cumulative EPS is equal
to or exceeds $_____ (the "[2006] Full Vesting EPS Target"); and (iii) in the
event that the Company's [2004-2006] Cumulative EPS is less than the [2006] Full
Vesting EPS Target but greater than or equal to the [2006] Minimum Vesting EPS
Target, the number of shares of Restricted Stock that shall vest on the third
anniversary of the date of grant shall be determined on a pro rata(3) basis; and

         (d) (i) none of the shares of Restricted Stock granted hereunder shall
vest on the fourth anniversary of the date of grant in the event that the
Company's cumulative reported diluted earnings per share for the [2004 through
2007] fiscal years (the "[2004-2007] Cumulative EPS") is less than $_____ (the
"[2007] Minimum Vesting EPS Target"); (ii) all remaining unvested shares of
Restricted Stock granted hereunder shall vest on the fourth anniversary of the
date of grant if and only if the Company's [2004-2007] Cumulative EPS is equal
to or exceeds $_____ (the "[2007] Full Vesting EPS Target"); and (iii) in the
event that the Company's [2004-2007] Cumulative EPS is less than the [2007] Full
Vesting EPS Target but greater than or equal to the [2007] Minimum Vesting EPS
Target, the number of shares of Restricted Stock that shall vest on the fourth
anniversary of the date of grant shall be determined on a pro rata(4) basis.

         Any unvested shares of Restricted Stock that do not vest on the fourth
anniversary of the date of grant pursuant to the provisions of Section 2(d)
hereof shall be immediately forfeited and the Grantee shall have no further
rights with respect to such shares of Restricted Stock.

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(2) For purposes of calculating the pro rata number of shares of Restricted
Stock that shall vest on the second anniversary of the date of grant, multiply
the number of shares of Restricted Stock granted hereunder by the result of the
following formula (rounded to four decimal points):

0.1875 * [(([2004-2005] Cumulative EPS - [2005] Minimum Vesting EPS
Target)/([2005] Full Vesting EPS Target - [2005] Minimum Vesting EPS Target) *
0.75) + 0.25]

(3) For purposes of calculating the pro rata number of shares of Restricted
Stock that shall vest on the third anniversary of the date of grant, multiply
the number of shares of Restricted Stock granted hereunder by the result of the
following formula (rounded to four decimal points):

0.1875 * [(([2004-2006] Cumulative EPS - [2006] Minimum Vesting EPS
Target)/([2006] Full Vesting EPS Target - [2006] Minimum Vesting EPS Target) *
0.75) + 0.25]

(4) For purposes of calculating the pro rata number of shares of Restricted
Stock that shall vest on the fourth anniversary of the date of grant, multiply
the number of shares of Restricted Stock granted hereunder that remain unvested
on such date by the result of the following formula (rounded to four decimal
points):

[([2004-2007] Cumulative EPS - [2007] Minimum Vesting EPS Target)/([2007] Full
Vesting EPS Target - [2007] Minimum Vesting EPS Target) * 0.75] + 0.25


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         Notwithstanding anything herein to the contrary, no fractional shares
shall be issuable upon any Vesting Date. In addition, in the event that the
Compensation and Human Resources Committee of the Board of Directors of the
Company (the "Compensation Committee") determines that an event has occurred
during any fiscal year which has impacted the Company's reported diluted
earnings per share for such fiscal year, the Compensation Committee shall have
the right, in its sole and absolute discretion, to increase or decrease the
vesting targets to reflect such event for purposes of calculating the vesting of
shares of Restricted Stock under this Section 2 for such fiscal year and for any
or all future fiscal years.

         Section 3. Distribution of Restricted Stock. Certificates representing
the shares of Restricted Stock that have vested under Section 2 will be
distributed to the Grantee as soon as practicable after each Vesting Date.

         Section 4. Voting Rights and Dividends. Prior to the distribution of
the Restricted Stock, certificates representing shares of Restricted Stock will
be held by the Company (the "Custodian") in the name of the Grantee. The
Custodian will take such action as is necessary and appropriate to enable the
Grantee to vote the Restricted Stock. All cash dividends received by the
Custodian, if any, with respect to the Restricted Stock will be remitted to the
Grantee. Stock dividends issued with respect to the Restricted Stock shall be
treated as additional shares of Restricted Stock that are subject to the same
restrictions and other terms and conditions that apply to the shares of
Restricted Stock. Notwithstanding the foregoing, no voting rights or dividend
rights shall inure to the Grantee following the forfeiture of the Restricted
Stock pursuant to Section 5.

         Section 5. Termination/Change of Status. In the event that either: (i)
Grantee's employment by the Company (or any Subsidiary or Affiliate of the
Company) terminates for any reason or (ii) Grantee, for any reason, ceases to
remain employed by the Company (or any Subsidiary or Affiliate of the Company)
in the same position as Grantee holds on the date hereof (or a substantially
equivalent or higher position as determined by the Company in its sole
discretion), all shares of Restricted Stock that have not vested prior to the
date of termination or change of status shall be immediately forfeited and
Grantee shall have no further rights with respect to such shares of Restricted
Stock.

         Section 6. No Transfer or Pledge of Restricted Stock. No shares of
Restricted Stock may be sold, assigned, transferred, pledged, hypothecated or
otherwise encumbered or disposed of prior to the date such shares have vested,
if at all, on any Vesting Date.

         Section 7. Tax Election. The Grantee may, but is not required to, elect
to apply the tax rules of Section 83(b) of the Internal Revenue Code of 1986, as
amended (the "Code"), to the issuance of the Restricted Stock. If the Grantee
makes an affirmative election under Section 83(b) of the Code, the Grantee shall
deliver a copy of such election to the Company in accordance with the
requirements of the Code and the Regulations promulgated thereunder.

         Section 8. Tax Withholding. The Company may withhold from any
distribution of Restricted Stock an amount of Common Stock equal to such
federal, state or local taxes as shall be required to be withheld pursuant to
any applicable law or regulation, unless the Company


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agrees to accept a payment of cash (or to withhold from other wages payable to
Grantee) in the amount of such withholding taxes.

         Section 9. Change of Control. Upon the occurrence of a Change in
Control or a Potential Change in Control as defined in Section 10 of the Plan,
all Restricted Stock shall be deemed vested and the restrictions under the Plan
and the Agreement with respect to the Restricted Stock, including the
restriction on transfer set forth in Section 6 hereof, shall automatically
expire and shall be of no further force or effect.

         Section 10. Stock Subject to Award. In the event that the shares of
Common Stock of the Company should, as a result of a stock split or stock
dividend or combination of shares or any other change, redesignation, merger,
consolidation, recapitalization or otherwise, be increased or decreased or
changed into or exchanged for a different number or kind of shares of stock or
other securities of the Company or of another corporation, the number of shares
of Restricted Stock that have been awarded to Grantee shall be appropriately
adjusted to reflect such action. If any such adjustment shall result in a
fractional share, such fraction shall be disregarded.

         Section 11. Stock Power. Concurrently with the execution of this
Agreement, the Grantee shall deliver to the Company a stock power, endorsed in
blank, relating to the shares of Restricted Stock. Such stock power shall be in
the form attached hereto as Exhibit A.

         Section 12. Legend. Each certificate representing Restricted Stock
shall bear a legend in substantially the following form:

         THIS CERTIFICATE AND THE SHARES OF STOCK
         REPRESENTED HEREBY ARE SUBJECT TO THE TERMS AND
         CONDITIONS (INCLUDING FORFEITURE AND RESTRICTIONS
         AGAINST TRANSFER) CONTAINED IN THE O'CHARLEY'S 2000
         STOCK INCENTIVE PLAN (THE "PLAN") AND THE
         RESTRICTED STOCK AGREEMENT (THE "AGREEMENT")
         BETWEEN THE OWNER OF THE RESTRICTED STOCK
         REPRESENTED HEREBY AND O'CHARLEY'S INC. (THE
         "COMPANY"). THE RELEASE OF SUCH STOCK FROM SUCH
         TERMS AND CONDITIONS SHALL BE MADE ONLY IN
         ACCORDANCE WITH THE PROVISIONS OF THE PLAN AND THE
         AGREEMENT, COPIES OF WHICH ARE ON FILE AT THE
         COMPANY.

         Section 13. No Right to Continued Employment. This Agreement shall not
be construed as giving the Grantee the right to be retained in the employ of the
Company (or any Subsidiary or Affiliate of the Company), and the Company (or any
Subsidiary or Affiliate of the Company) may at any time dismiss the Grantee from
employment, free from any liability or any claim under the Plan.

         Section 14. Governing Provisions. This Agreement is made under and
subject to the provisions of the Plan, and all of the provisions of the Plan are
also provisions of this Agreement. If there is a difference or conflict between
the provisions of this Agreement and the provisions of


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the Plan, the provisions of the Plan will govern. By signing this Agreement, the
Grantee confirms that he or she has received a copy of the Plan.

         Section 15.  Miscellaneous.

                  15.1 Entire Agreement. This Agreement and the Plan contain the
entire understanding and agreement between the Company and the Grantee
concerning the Restricted Stock granted hereby, and supersede any prior or
contemporaneous negotiations and understandings. The Company and the Grantee
have made no promises, agreements, conditions, or understandings relating to the
Restricted Stock, either orally or in writing, that are not included in this
Agreement or the Plan.

                  15.2 Captions. The captions and section numbers appearing in
this Agreement are inserted only as a matter of convenience. They do not define,
limit, construe, or describe the scope or intent of the provisions of this
Agreement.

                  15.3 Counterparts. This Agreement may be executed in
counterparts, each of which when signed by the Company and the Grantee will be
deemed an original and all of which together will be deemed the same Agreement.

                  15.4 Notice. Any notice or communication having to do with
this Agreement must be given by personal delivery or by certified mail, return
receipt requested, addressed, if to the Company, to the principal office of the
Company, and, if to the Grantee, to the Grantee's last known address provided by
the Grantee to the Company.

                  15.5 Amendment. This Agreement may be amended by the Company,
provided that unless the Grantee consents in writing, the Company cannot amend
this Agreement if the amendment will materially change or impair the Grantee's
rights under this Agreement and such change is not to the Grantee's benefit.

                  15.6 Successors and Assignment. Each and all of the provisions
of this Agreement are binding upon and inure to the benefit of the Company and
the Grantee and their heirs, successors, and assigns. However, neither the
Restricted Stock nor this Agreement may be assigned or transferred except as
otherwise set forth in this Agreement or the Plan.

                  15.7 Governing Law. This Agreement shall be governed and
construed exclusively in accordance with the laws of the State of Tennessee
applicable to agreements to be performed in the State of Tennessee.


                           [Signature page to follow.]


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         IN WITNESS WHEREOF, the Company and the Grantee have executed this
Agreement to be effective as of _____________, __ 20__.

                                           O'CHARLEY'S INC.


                                           By:
                                              ----------------------------------
                                           Name:
                                                --------------------------------
                                           Title:
                                                 -------------------------------



---------------------------------------              ---------------------------
---------------------------                          Date



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                                    EXHIBIT A


                                   STOCK POWER


         FOR VALUE RECEIVED, the undersigned does hereby sell, assign and
transfer to O'Charley's Inc. (the "Company"), _________ shares of the Company's
common stock represented by Certificate No. ____. The undersigned authorizes the
Secretary of the Company to transfer the stock on the books of the Company in
the event of the forfeiture of any shares issued under the Restricted Stock
Agreement dated ________________ between the Company and the undersigned.


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-----------------------------                     Date


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