MAIN STREET RESTAURANT GROUP, INC. RESTRICTED STOCK UNIT AGREEMENT
Exhibit
10.46
THIS
RESTRICTED STOCK UNIT AGREEMENT
(the
“Agreement”)
is
made as of [_________], 200_, by and between Main Street Restaurant Group,
Inc.,
a Delaware corporation (the “Company”),
and
[___________] (the “Participant”).
WHEREAS,
the
Company maintains the __________________ Plan (the “Plan”)
which
authorizes grants of restricted stock units (the “Restricted
Stock Units”);
and
WHEREAS,
the
Company wishes to make a grant of Restricted Stock Units to the Participant
as a
means of rewarding and retaining the Participant.
NOW,
THEREFORE,
the
Company and the Participant hereby agree as follows:
1.
Grant
Pursuant to Plan.
This
Restricted Stock Unit award is granted pursuant to the Plan, which is
incorporated herein for all purposes. The Participant hereby acknowledges
receipt of a copy of the Plan and agrees to be bound by all of the terms and
conditions of this Agreement and of the Plan. Unless otherwise provided herein,
terms used in this Agreement that are defined in the Plan and not defined herein
shall have the meanings attributable thereto in the Plan.
2.
Restricted
Stock Unit Award.
The
Plan Administrator hereby grants to the Participant the following Restricted
Stock Units, as of the “Grant Date” specified below:
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Grant
Date
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Restricted
Stock Units
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Vesting
Date(s)
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[_______]
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[_________]
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[_________]
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3.
Vesting
and Forfeiture of Restricted Stock Units.
(a) Vesting.
The
Participant shall become vested in the Restricted Stock Units as
follows:
[insert
vesting schedule]
(b) Forfeiture.
The
Participant shall forfeit the unvested portion, if any, of the Restricted Stock
Units in the event that the Participant’s Continuous Service (as hereinafter
defined) is terminated for any reason except death or Disability. For purposes
of this Agreement,
“Continuous
Service”
means
uninterrupted provision of services to the Company in any capacity of employee,
consultant, or director. Continuous Service shall not be considered interrupted
in the case of (i) any approved leave of absence, (ii) transfers among the
Company or any successor entities, in the capacity of employee, consultant
or
director, or (iii) any change in status as long as the Participant remains
in
the service of the Company in the capacity of employee, consultant, or
director.
(c) Acceleration
of Vesting upon Death or Disability.
In the
event that the Participant’s Continuous Service is terminated by reason of the
Participant’s death or Disability prior to the date on which the Participant’s
Restricted Stock Units are fully vested, the Participant automatically shall
become 100% vested in the Restricted Stock Units as of the date of the
Participant’s death or Disability.
(d) Acceleration
of Vesting upon a Transfer of Control.
In the
event of a Transfer of Control prior to the date on which the Participant is
fully vested in the Restricted Stock Units, the Participant automatically shall
become 100% vested in the Restricted Stock Units as of the date of the Transfer
of Control.
4. Settlement
of Restricted Stock Unit Award.
(a) Delivery
of Common Stock.
The
Company shall deliver 100% of the Common Stock corresponding to the vested
Restricted Stock Units that are the subject of this Agreement to the Participant
on the earlier of (i) [_____________], or (ii) the date on which Participant’s
Continuous Service is terminated (such date hereinafter referred to as the
“Delivery
Date”).
(b) Deferral
of Delivery.
Notwithstanding the foregoing, the Participant may elect, in a writing received
by the Plan Administrator at least twelve (12) months prior to the Delivery
Date, to defer that date until any later date (which such date is at least
five
years after the original Delivery Date).
(c) Acceleration
of Delivery upon a Transfer of Control.
In the
event of a Transfer of Control, the full amount of the Common Stock
corresponding to the Participant's vested Restricted Stock Units shall be
distributed to the Participant as soon as administratively practicable following
the Transfer of Control.
5.
Rights
with Respect to Common Stock Represented by Restricted Stock Unit
Award.
(a) No
Rights as Stockholder until Delivery.
Except
as otherwise provided in this Section
5,
the
Participant shall not have any rights, benefits, or entitlements with respect
to
any Common Stock subject to this Agreement unless and until the Common Stock
has
been delivered to the Participant. On or after delivery of the Common Stock,
the
Participant shall have, with respect to the Common Stock delivered, all of
the
rights of an equity interest holder of the Company, including the right to
vote
the Common Stock and the right to receive all dividends, if any, as may be
declared on the Common Stock from time to time.
(b) Adjustments.
The
aggregate number and type of shares subject to this award shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from any split-up, combination, or exchange
of
shares, consolidation, spin-off, or recapitalization of shares or any like
capital adjustment or the payment of any stock dividend.
6.
Tax
Withholding.
On or
before any date of delivery of any Common Stock, as a condition to the Company’s
obligations with respect to the Restricted Stock Units (including, without
limitation, any obligation to deliver any Common Stock hereunder), the
Participant shall make arrangements satisfactory to the Company to pay to the
Company any federal, state, or local taxes of any kind required to be withheld
with respect to its delivery of Common
Stock.
If
the Participant shall fail to make the tax payments as are required, the Company
shall, to the extent permitted by law, have the right to deduct from any payment
of any kind otherwise due to the Participant, including, but not limited to,
the
delivery of the shares of Common Stock pursuant to this Agreement, any federal,
state, or local taxes of any kind required by law to be withheld with respect
to
the Common
Stock.
7.
Amendment,
Modification, and Assignment.
No
provision of this Agreement may be modified, waived, or discharged unless that
waiver, modification, or discharge is agreed to in writing and signed by the
Participant and the Plan Administrator. No waiver by either party of any breach
by the other party to this Agreement of any condition or provision of this
Agreement shall be deemed a waiver of any other conditions or provisions of
this
Agreement. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement. Unless otherwise
consented to by the Plan Administrator, this Agreement shall not be assigned
by
the Participant in whole or in part. The rights and obligations created under
this Agreement shall be binding on the Participant and the Participant’s heirs
and legal representatives and on the successors and assigns of the
Company.
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8.
Transferability.
The
Restricted Stock Units granted under this Agreement are not transferable
otherwise than by will or under the applicable laws of descent and distribution.
In addition, the Restricted Stock Units shall not be assigned, negotiated,
pledged, or hypothecated in any way (whether by operation of law or otherwise),
and the Restricted Stock Units shall not be subject to execution, attachment,
or
similar process.
9.
Beneficiary
Designation.
The
Participant shall have the right to designate, on a beneficiary designation
form
satisfactory to the Plan Administrator, which shall be filed with the Company,
a
beneficiary or beneficiaries to receive any undelivered Common Stock under
this
Agreement in the event of the death of the Participant. In the event that the
Participant shall not file a beneficiary designation form with the Company,
or
if none of the designated beneficiaries survive the Participant, then any
undelivered Common Stock under this Agreement shall be paid to the estate of
the
Participant.
10. Miscellaneous.
(a) No
Right to Employment or Service.
The
grant of this Restricted Stock Unit award shall not confer, or be construed
to
confer, upon the Participant any right to be employed by or perform services
for
the Company.
(b) Section
409A Amendments.
The
Company agrees to cooperate with Participant to amend this Agreement to the
extent either the Company or the Participant deems necessary to avoid imposition
of any additional tax or income recognition prior to actual payment to the
Participant under Code Section 409A and any temporary or final Treasury
Regulations and Internal Revenue Service guidance thereunder, but only to the
extent such amendment would not have an adverse effect on the Company and would
not provide the Participant with any additional rights, in each case as
determined by the Company in its sole discretion.
(c) No
Limit on Other Compensation Arrangements.
Nothing
contained in this Agreement shall preclude the Company from adopting or
continuing in effect other or additional compensation arrangements, and those
arrangements may be either generally applicable or applicable only in specific
cases.
(d) Severability.
If any
provision of this Agreement is or becomes or is deemed to be invalid, illegal,
or unenforceable in any jurisdiction or would disqualify this Agreement or
the
award of Restricted Stock Units under any applicable law, that provision shall
be construed or deemed amended to conform to applicable law (or if that
provision cannot be so construed or deemed amended without materially altering
the purpose or intent of this Agreement and the Restricted Stock Unit award,
that provision shall be stricken as to that jurisdiction and the remainder
of
this Agreement and the award shall remain in full force and
effect).
(e) No
Trust or Fund Created.
Neither
this Agreement nor the grant of the Restricted Stock Unit award shall create
or
be construed to create a trust or separate fund of any kind or a fiduciary
relationship between the Company and the Participant or any other person. The
Restricted Stock Units subject to this Agreement represent only the Company’s
unfunded and unsecured promise to issue Common Stock to the Participant in
the
future. To the extent that the Participant or any other person acquires a right
to receive payments from the Company pursuant to this Agreement, that right
shall be no greater than the right of any unsecured general creditor of the
Company.
(f) Governing
Law.
The
validity, interpretation, construction, and performance of this Agreement shall
be governed by the laws of the state of Arizona.
(g) Interpretation.
The
Participant accepts this Restricted Stock Unit award subject to all the terms
and provisions of this Agreement and the terms and conditions of the Plan.
The
undersigned Participant hereby accepts as binding, conclusive, and final all
decisions or interpretations of the Plan Administrator upon any questions
arising under this Agreement.
(h) Headings.
Headings are given to the Paragraphs and Subparagraphs of this Agreement solely
as a convenience to facilitate reference. The headings shall not be deemed
in
any way material or relevant to the construction or interpretation of this
Agreement or any provision thereof.
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11. Complete
Agreement.
This
Agreement and those agreements and documents expressly referred to herein embody
the complete agreement and understanding among the parties and supersede and
preempt any prior understandings, agreements, or representations by or among
the
parties, written or oral, which may have related to the subject matter of this
Agreement in any way.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF,
the
parties have executed this Agreement on the date first written
above.
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a
Delaware corporation
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By:
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Name:
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Title:
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Agreed
and Accepted:
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By:
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Name:
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Schedule
to
Form
of Restricted Stock Unit Agreement
The
form
of Restricted Stock Unit Agreement was executed by the following
persons:
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Name
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Date
of
Grant
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Number
of Units
Awarded
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Vesting
Schedule
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Xxxxxxx
X. Xxxxxxx
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01/01/05
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25,000
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50%
vest on 12/31/05;
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50%
vest on 12/31/06
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Xxxxxxx
Xxxxxxxxxx
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01/01/05
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20,000
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50%
vest on 12/31/05;
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50%
vest on 12/31/06
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Xxxxxxx
Xxxxxxxxxx
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09/23/05
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50,000
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33.3%
vest on 09/23/06;
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33.3%
vest on 09/23/07;
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33.3%
vest on 09/23/08;
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Xxxxxx
Xxx
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01/01/05
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12,500
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50%
vest on 12/31/05;
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50%
vest on 12/31/06
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Xxxxxxxxx
Xxxxxxx
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01/01/05
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7,500
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50%
vest on 12/31/05;
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50%
vest on 12/31/06
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Xxxxx
Xxxx
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01/01/05
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7,500
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50%
vest on 12/31/05;
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50%
vest on 12/31/06
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Xxxxxxx
X. Xxxxxx
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01/01/05
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5,000
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50%
vest on 12/31/05;
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50%
vest on 12/31/06
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