Exhibit 10(f)
XXXXXX RESTAURANTS, INC.
2002 STOCK INCENTIVE PLAN
XXXXXX STOCK UNITS AWARD AGREEMENT
(Canada)
This Xxxxxx Stock Units Award Agreement is between Xxxxxx Restaurants,
Inc., a Florida corporation (the "Company"), and you, the person named in the
attached Award Certificate who is an employee of the Company or one of its
Affiliates. This Agreement is effective as of the date of grant set forth in the
attached Award Certificate (the "Grant Date").
The Company wishes to award to you a number of Xxxxxx Stock Units, subject
to the terms and conditions provided in this Agreement, in order to carry out
the purpose of the Company's 2002 Stock Incentive Plan (the "Plan").
Accordingly, for good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the Company and you hereby agree as follows:
1. Award of Xxxxxx Stock Units.
The Company hereby grants to you, effective as of the Grant Date, an Award
of Xxxxxx Stock Units for that number of Units set forth in the attached Award
Certificate (the "Xxxxxx Stock Units"), each Xxxxxx Stock Unit representing the
right to receive, on the vesting date or dates set forth in the attached Award
Certificate, one share of the Company's Common Stock, no par value (the "Common
Stock"), or, at your election, a cash payment in an amount equal to the Volume
Weighted Average Price (as defined in Section 7(b) hereof) of one share of
Common Stock, on the terms and conditions set forth in this Agreement and the
Award Certificate and in accordance with the terms of the Plan.
2. Rights with Respect to the Xxxxxx Stock Units.
The Xxxxxx Stock Units granted pursuant to the attached Award Certificate
and this Agreement are not shares of Common Stock and do not and shall not give
you any of the rights and privileges of a shareholder of Common Stock. Your
rights with respect to the Xxxxxx Stock Units shall remain forfeitable at all
times prior to the date or dates on which such rights become vested, and the
restrictions with respect to the Xxxxxx Stock Units lapse, in accordance with
Section 3, 4 or 5 hereof.
3. Vesting.
Subject to the terms and conditions of this Agreement, the Xxxxxx Stock
Units shall vest, and the restrictions with respect to the Xxxxxx Stock Units
shall lapse, on the date or dates and in the amount or amounts set forth in the
attached Award Certificate if you remain continuously employed by the Company or
an Affiliate of the Company until the respective vesting dates.
4. Change of Control.
Notwithstanding the vesting provisions contained in Section 3 above, but
subject to the other terms and conditions in this Agreement, upon the occurrence
of a Change of Control (as defined below) you shall become immediately and
unconditionally vested in all Xxxxxx Stock Units and the restrictions with
respect to all of the Xxxxxx Stock Units shall lapse. For purposes of this
Agreement, "Change of Control" shall mean any of the following events:
(a) any person (including a group as defined in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended) becomes, directly or indirectly,
the beneficial owner of 20% or more of the shares of the Company entitled to
vote for the election of directors;
(b) as a result of or in connection with any cash tender offer, exchange
offer, merger or other business combination, sale of assets or contested
election, or combination of the foregoing, the persons who were directors of the
Company just prior to such event cease to constitute a majority of the Company's
Board of Directors; or
(c) the consummation of a transaction in which the Company ceases to be an
independent publicly-owned corporation or the consummation of a sale or other
disposition of all or substantially all of the assets of the Company.
5. Early Vesting; Forfeiture.
If you cease to be employed by the Company or an Affiliate of the Company
prior to the vesting of the Xxxxxx Stock Units pursuant to Section 3 or 4
hereof, your rights to all of the unvested Xxxxxx Stock Units shall be
immediately and irrevocably forfeited, except that:
(a) if the Company or an Affiliate of the Company terminates your
employment involuntarily and not for cause (as determined by the Committee
administering the Plan) prior to the vesting of the Xxxxxx Stock Units pursuant
to Section 3 or 4 hereof, and your combined age and years of service with the
Company or an Affiliate of the Company equal at least 70, then any Xxxxxx Stock
Units that have not vested on the date of notice of your termination of
employment but that would have vested within two years from the date of notice
of termination if your employment had continued shall become immediately vested
on the date of notice of your termination of employment;
(b) if you retire on or after age 55 with 10 years of service with the
Company or an Affiliate of the Company, prior to the vesting of the Xxxxxx Stock
Units pursuant to Section 3 or 4 hereof, you will continue to vest in the Xxxxxx
Stock Units as set forth in the Award Certificate; or
(c) if you die prior to the vesting of the Xxxxxx Stock Units pursuant to
Section 3, 4 or 5 hereof, the Xxxxxx Stock Units will vest on a pro rata basis
on the date of your death, based on the number of full months from the Grant
Date to the date of your death. No transfer by will or the applicable laws of
descent and distribution of any Xxxxxx Stock Units which vest by reason of your
death shall be effective to bind the Company unless the Committee administering
the Plan shall have been furnished with written notice of such transfer and a
copy of the will or
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such other evidence as the Committee may deem necessary to establish the
validity of the transfer.
6. Restriction on Transfer.
Until the Xxxxxx Stock Units vest pursuant to Section 3, 4 or 5 hereof,
none of the Xxxxxx Stock Units may be sold, assigned, transferred, pledged,
attached or otherwise encumbered, and no attempt to transfer the Xxxxxx Stock
Units, whether voluntary or involuntary, by operation of law or otherwise, shall
vest the transferee with any interest or right in or with respect to the Xxxxxx
Stock Units.
7. Conversion of Xxxxxx Stock Units; Issuance of Common Stock; Election to
Receive Cash in Lieu of Common Stock.
(a) No shares of Common Stock shall be issued to you prior to the date on
which the applicable Xxxxxx Stock Units vest in accordance with the terms and
conditions of the attached Award Certificate and this Award Agreement. After a
Xxxxxx Stock Unit vests pursuant to Section 3, 4 or 5 hereof, and provided that
you have not elected to receive cash pursuant to Section 7(b) hereof, the
Company shall promptly cause to be issued in your name one share of Common Stock
for each vested Xxxxxx Stock Unit. Subject to deductions of any amounts on
account of taxes or other similar payments pursuant to Section 9 hereof, the
Company shall promptly cause the shares of Common Stock (less any shares
withheld to satisfy such amounts) to be delivered, either by book-entry
registration or in the form of a certificate or certificates, registered in your
name or in the names of your legal representatives, beneficiaries or heirs, as
the case may be. The Company will not deliver any fractional share of Common
Stock but will pay, in lieu thereof, the Fair Market Value of such fractional
share of Common Stock. Any shares of Common Stock delivered pursuant to this
Award Agreement shall be newly issued shares.
(b) In lieu of receiving shares of Common Stock pursuant to Section 7(a)
hereof, you may elect to receive a cash payment in an amount equal to the Volume
Weighted Average Price (as defined below) of one share of Common Stock for each
vested Xxxxxx Stock Unit. In order to be effective, any such election must be
made in writing delivered to the Company at the address set forth in Section
10(g) hereof not later than 30 days prior to the vesting date of the applicable
Xxxxxx Stock Units. After a Xxxxxx Stock Unit vests pursuant to Section 3, 4 or
5 hereof for which the Company has received a notice complying with the
preceding sentence, the Company shall promptly make a cash payment to you in
Canadian Dollars in an amount equal to the Volume Weighted Average Price of one
share of Common Stock for each vested Xxxxxx Stock Unit multiplied by the
exchange rate selected by the Company for the conversion of United States
Dollars into Canadian Dollars in effect on the vesting date, subject to the
deduction of any amounts on account of taxes or other similar payments pursuant
to Section 9 hereof. For purposes of this Award Agreement, "Volume Weighted
Average Price" shall mean the U.S. dollar amount per share of Common Stock
calculated as set forth below:
(i) If the vesting date for the Xxxxxx Stock Unit is a Trading Day (as
defined below), the Volume Weighted Average Price shall be calculated by
(A) adding the Daily Volume Weighted Average Price (as defined below) of
the Common Stock on the vesting
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date to the Daily Volume Weighted Average Price of the Common Stock on the
Trading Day immediately preceding the vesting date and (B) dividing such
sum by two.
(ii) If the vesting date for the Xxxxxx Stock Unit is not a Trading
Day, the Volume Weighted Average Price shall be calculated by (A) adding
the Daily Volume Weighted Average Price of the Common Stock on the Trading
Day immediately preceding the vesting date to the Daily Volume Weighted
Average Price of the Common Stock on the Trading Day immediately following
the vesting date and (B) dividing such sum by two.
(iii) For purposes of this Award Agreement, "Daily Volume Weighted
Average Price" shall mean, for any Trading Day, the U.S. dollar amount per
share of Common Stock calculated by (A) adding the U.S. dollar amount of
each trade (computed as the transaction price times the number of shares of
Common Stock traded in that transaction) during the period commencing at
9:30 a.m. Eastern Time and ending at 4:00 p.m. Eastern Time on such Trading
Day and (B) dividing such sum by the total number of shares of Common Stock
traded during the period commencing at 9:30 a.m. Eastern Time and ending at
4:00 p.m. Eastern Time on such Trading Day.
(iv) For purposes of this Award Agreement, "Trading Day" shall mean a
day during which trading in securities generally occurs on the New York
Stock Exchange or, if the Common Stock is not listed on the New York Stock
Exchange, the principal other market on which the Common Stock is then
traded.
8. Adjustments.
In the event that the Committee administering the Plan shall determine that
any dividend or other distribution (whether in the form of cash, shares of
Common Stock, other securities or other property), recapitalization, stock
split, reverse stock split, reorganization, merger, consolidation, split-up,
spin-off, combination, repurchase or exchange of shares or other securities of
the Company, issuance of warrants or other rights to purchase shares or other
securities of the Company or other similar corporate transaction or event
affects the Common Stock such that an adjustment of the Xxxxxx Stock Units is
determined by the Committee administering the Plan to be appropriate in order to
prevent dilution or enlargement of the benefits or potential benefits intended
to be made available under the attached Award Certificate and this Agreement,
then the Committee shall, in such manner as it may deem equitable, in its sole
discretion, adjust any or all of the number and type of shares subject to the
Xxxxxx Stock Units.
9. Taxes.
(a) You acknowledge that you will consult with your personal tax advisor
regarding the income tax consequences of the grant of the Xxxxxx Stock Units,
the vesting of the Xxxxxx Stock Units, the receipt of shares of Common Stock or
cash upon the vesting of the Xxxxxx Stock Units and any other matters related to
this Agreement. In order to comply with all applicable federal, provincial,
state, local or foreign income tax or other laws or regulations, the Company may
take such action as it deems appropriate to ensure that all applicable federal,
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provincial, state, local or foreign payroll, withholding, income or other taxes,
or similar amounts (including pension plan and employment insurance
contributions), are collected from you or withheld from any amounts (including
shares of Common Stock) paid or delivered to you pursuant to this Agreement or
otherwise.
(b) In accordance with the terms of the Plan, and such rules as may be
adopted by the Committee administering the Plan, you may elect to satisfy any
applicable tax or other withholding obligations arising from the vesting of the
Xxxxxx Stock Units and the corresponding receipt of shares of Common Stock
pursuant to Section 7(a) hereof by (i) delivering cash (including check, draft,
money order or wire transfer made payable to the order of the Company), (ii)
having the Company withhold a portion of the shares of Common Stock otherwise to
be delivered having a Fair Market Value (as defined in the Plan) equal to the
amount of such taxes or other amounts required to be withheld, or (iii)
delivering to the Company shares of Common Stock having a Fair Market Value
equal to the amount of such taxes or other amounts required to be withheld. The
Company will not deliver any fractional share of Common Stock but will pay, in
lieu thereof, the Fair Market Value of such fractional share of Common Stock.
Your election must be made on or before the date that the amount of tax or other
similar amount to be withheld is determined.
(c) In accordance with the terms of the Plan, and such rules as may be
adopted by the Committee administering the Plan, the Company will satisfy any
applicable tax or other withholding obligations arising from the vesting of the
Xxxxxx Stock Units and the corresponding receipt of cash pursuant to Section
7(b) hereof by withholding a portion of the cash otherwise to be delivered equal
to the amount of such taxes or other amounts required to be withheld.
10. General Provisions.
(a) Interpretations. This Agreement is subject in all respects to the terms
of the Plan. A copy of the Plan is available upon your request. Terms used
herein which are defined in the Plan shall have the respective meanings given to
such terms in the Plan, unless otherwise defined herein. In the event that any
provision of this Agreement is inconsistent with the terms of the Plan, the
terms of the Plan shall govern. Any question of administration or interpretation
arising under this Agreement shall be determined by the Committee administering
the Plan, and such determination shall be final, conclusive and binding upon all
parties in interest.
(b) No Right to Employment. Nothing in this Agreement or the Plan shall be
construed as giving you the right to be retained as an employee of the Company
or any Affiliate of the Company. In addition, the Company or an Affiliate of the
Company may at any time dismiss you from employment, free from any liability or
any claim under this Agreement, unless otherwise expressly provided in this
Agreement.
(c) Reservation of Shares. The Company shall at all times prior to the
vesting of the Xxxxxx Stock Units reserve and keep available such number of
shares of Common Stock as will be sufficient to satisfy the requirements of this
Agreement.
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(d) Securities Matters. The Company shall not be required to deliver any
shares of Common Stock until the requirements of any federal, provincial or
state securities or other laws, rules or regulations (including the rules of any
securities exchange) as may be determined by the Company to be applicable are
satisfied.
(e) Headings. Headings are given to the sections and subsections of this
Agreement solely as a convenience to facilitate reference. Such headings shall
not be deemed in any way material or relevant to the construction or
interpretation of this Agreement or any provision hereof.
(f) Governing Law. The internal law, and not the law of conflicts, of the
State of Florida will govern all questions concerning the validity, construction
and effect of this Agreement.
(g) Notices. You should send all written notices regarding this Agreement
or the Plan to the Company at the following address:
Xxxxxx Restaurants, Inc.
Supervisor, Stock Compensation Plans
0000 Xxxx Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
(h) Award Certificate. This Xxxxxx Stock Units Award Agreement is attached
to and made a part of an Award Certificate and shall have no force or effect
unless such Award Certificate is duly executed and delivered by the Company to
you.
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