RESTRICTED STOCK UNIT AGREEMENT
Exhibit
10.68
Employee
Form
2006
EXECUTIVE INCENTIVE PLAN
THIS
RESTRICTED STOCK UNIT AGREEMENT (the "Agreement"), dated ‹GRANT
DATE›
between
Xxxxx’x Restaurants, Inc., a Delaware corporation (the "Company"), and
‹EMPNO›‹NAME›
(the
"Employee"), is entered into as follows:
WHEREAS,
the continued participation of the Employee is considered by the Company to
be
important for the Company's continued growth; and
WHEREAS,
in order to give the Employee an incentive to continue in the employ of the
Company and to assure his or her continued commitment to the success of the
Company, the Compensation Committee of the Board of Directors of the Company
or
its delegates (the"Committee") has determined that the Employee shall be granted
the right to receive shares of Company common stock (the “Stock”) on the vesting
date(s) described below. Prior to delivery, the right to receive such stock
shall be represented herein by stock units ("Stock Units"), with each Stock
Unit
representing the right to receive one share of Stock, subject to the
restrictions stated below and in accordance with the terms and conditions of
the
Rubio’s Restaurants, Inc. 2006 Executive Incentive Plan (the "Plan"), a copy of
which can be found on the Company’s website at: https://____________, or by
written or telephonic request to the Plan Administrator.
THEREFORE,
the parties agree as follows:
1. Grant
of Stock Units.
Subject
to the terms and conditions of this Agreement and of the Plan, the Company
hereby grants to the Employee Stock Units covering ‹SHARES›
shares
of
Stock (the "Shares").
2. Vesting
Schedule.
Provided
the Employee does not experience a termination of employment for any reason
during the following vesting term (the “Vesting Term”), the interest of the
Employee in the Stock Units shall vest as follows: ‹INSERT
VESTING PROVISION HERE›.
In the
event the Employee has not met the vesting requirements by [INSERT
VESTING TERMINATION DATE],
the
interest of the Employee in the Stock Units shall be forfeited on that date.
[Notwithstanding anything in this Section 2 to the contrary, in the event of
(i)
the acquisition, directly or indirectly by any person or related group of
persons (other than the Company or a person that directly or indirectly
controls, is controlled by, or is under common control with, the Company or
any
employee benefit plan of the Company or any of its subsidiaries or any entity
holding shares for or pursuant to the terms of any such plan), of beneficial
ownership (within the meaning of Rule 13d-3 of the General Rules and Regulations
under the Securities Exchanges Act of 1934) of securities possessing more than
50% of the total combined voting power of the Company’s outstanding securities
pursuant to a tender or exchange offer made directly to the Company’s
stockholders, or (ii) a Corporate Transaction, as defined in the Company’s 1999
Stock Incentive Plan (the “1999 Plan”), the interest of the Employee in all of
the Stock Units shall vest immediately upon the completion of the acquisition
of
the requisite percentage of securities or upon the effective date of the
Corporate Transaction to the extent not theretofore vested.]
3. Benefit
Upon Vesting.
Unless
otherwise determined by the Administrator, upon the vesting of the Stock Units,
the Employee shall be entitled to receive, as soon as administratively
practicable, the Shares and a dividend equivalent payment equal to the sum
of
the amount(s) determined
as follows:
(a)
multiplying the number of vested Stock Units by the dividend per share of Stock
on each dividend payment date between the date hereof and the vesting date
to
determine the dividend equivalent amount for each dividend payment date;
and
(b)
dividing the amount determined in clause (a) above by the fair market value
of a share of Stock on the date of such dividend payment to determine the number
of additional Stock Units to be credited to the Employee;
provided,
however, that if the aggregate of all such dividend equivalent amounts results
in the payment of a fractional share, such fractional share shall be rounded
down to the nearest whole share, and provided, further, that the Company may
pay
such dividend equivalent amount(s) in cash at its sole discretion.
4. Restrictions.
(a)
Except as otherwise provided for in this Agreement, the Stock Units granted
hereunder may not be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated, other than by will, by the laws of descent and
distribution, or to the extent permitted by the Plan, the 1999 Plan, or other
equity plan, to the extent the Shares are payable from such plan(s).
(b)
Except as otherwise provided for in this Agreement, if the Employee's employment
with the Company is terminated at any time for any reason (other than the
Employee's death or Permanent Disability, as defined in the 1999 Plan) prior
to
the expiration of the Vesting Term, all Stock Units granted hereunder that
have
not vested by such date and that are held by the Employee as of such date shall
be forfeited by, and no further rights hereunder shall accrue to, the Employee.
In the event of the Employee’s death or Permanent Disability prior to the
expiration of the Vesting Term, the interest of the Employee in the Stock Units
shall vest on a pro rata basis based upon the services rendered during the
Vesting Term.
5. No
Stockholder Rights.
Stock
Units represent hypothetical shares of Stock. During the Vesting Term, the
Employee shall not be entitled to any of the rights or benefits generally
accorded to stockholders.
6. Taxes.
(a)
The
Employee shall be liable for any and all taxes, including withholding taxes,
arising out of this grant or the vesting of Stock Units hereunder. In the event
that the Company or the Employer is required to withhold taxes as a result
of
the grant or vesting of Stock Units, or subsequent sale of Stock acquired
pursuant to such Stock Units, or due upon receipt of dividend equivalent
payments, the Employee shall make a cash payment to the Company, or, if
permitted by the Plan Administrator, the Employee shall surrender a sufficient
number of whole shares of such Stock as necessary to cover all applicable
required withholding taxes and social security contributions at the time the
restrictions on the Stock Units lapse, unless alternative procedures for such
payment are established by the Company. The Employee will receive a cash refund
for any fraction of a surrendered share not necessary for required withholding
taxes and required social security contributions. To the extent that any
surrender of Stock or payment of cash or alternative procedure for such payment
is insufficient, the Employee authorizes the Company, and its Subsidiaries
and
Affiliates, which are qualified to deduct tax at the source, to deduct all
applicable required withholding taxes and social security contributions from
the
Employee's compensation. The Employee agrees to pay any amounts that cannot
be
satisfied from wages or other cash compensation, to the extent permitted by
law.
(b)
Regardless of any action the Company or the Employee's employer (the "Employer")
takes with respect to any or all income tax, social security, payroll tax,
payment on account or other tax-related withholding ("Tax-Related Items"),
the
Employee acknowledges and agrees that the ultimate liability for all Tax-Related
Items legally due by him is and remains the Employee's responsibility and that
the Company and/or the Employer (i) make no representations nor
undertakings regarding the treatment of any Tax-Related Items in connection
with
any aspect of this grant of Stock Units, including the grant and vesting of
Stock Units, subsequent payment of Stock and/or cash related to such Stock
Units
or the subsequent sale of any Stock acquired pursuant to such Stock Units and
receipt of any dividend equivalent payments; and (ii) do not commit to
structure the terms or any aspect of this grant of Stock Units to reduce or
eliminate the Employee's liability for Tax-Related Items. The Employee shall
pay
the Company or the Employer any amount of Tax-Related Items that the Company
or
the Employer may be required to withhold as a result of the Employee's
participation in the Plan or the Employee's receipt of Stock Units that cannot
be satisfied by the means previously described. The Company may refuse to
deliver the benefit described in Section 3 if the Employee fails to comply
with the Employee's obligations in connection with the Tax-Related Items.
7. Data
Privacy Consent.
The
Employee hereby explicitly and unambiguously consents to the collection, use
and
transfer, in electronic or other form, of the Employee's personal data as
described in this document by and among, as applicable, the Employer, and the
Company and its Subsidiaries and Affiliates for the exclusive purpose of
implementing, administering and managing the Employee's participation in the
Plan. The Employee understands that the Company and its Subsidiaries and
Affiliates and the Employer hold certain personal information about the
Employee, including, but not limited to, name, home address and telephone
number, date of birth, social security or insurance number or other
identification number, salary, nationality, job title, any shares of stock
or
directorships held in the Company, details of all options or any other
entitlement to shares of stock awarded, canceled, purchased, exercised, vested,
unvested or outstanding in the Employee's favor for the purpose of implementing,
managing and administering the Plan ("Data"). The Employee understands that
the
Data may be transferred to any third parties assisting in the implementation,
administration and management of the Plan. The Employee understands that he
may
request a list with the names and addresses of any potential recipients of
the
Data by contacting the Plan Administrator. The Employee authorizes the
recipients to receive, possess, use, retain and transfer the Data, in electronic
or other form, for the purposes of implementing, administering and managing
the
Employee's participation in the Plan, including any requisite transfer of such
Data, as may be required to a broker or other third party with whom the Employee
may elect to deposit any Stock acquired under the Plan. The Employee understands
that Data will be held only as long as is necessary to implement, administer
and
manage participation in the Plan. The Employee understands that he or she may,
at any time, view Data, request additional information about the storage and
processing of the Data, require any necessary amendments to the Data or refuse
or withdraw the consents herein, in any case without cost, by contacting the
local Plan Administrator in writing. The Employee understands that refusing
or
withdrawing consent may affect the Employee's ability to participate in the
Plan. For more information on the consequences of refusing to consent or
withdrawing consent, the Employee understands that he or she may contact the
Plan Administrator at the Company.
8. Plan
Information.
The
Employee acknowledges that copies of the Plan, Plan prospectus, Plan information
and stockholder information are available upon written or telephonic request
to
the Plan Administrator.
9. Acknowledgment
and Waiver.
By
accepting this grant of Stock Units, the Employee acknowledges and agrees
that:
(a) the
Plan is established voluntarily by the Company, it is discretionary in nature
and may be modified, amended, suspended or terminated by the Company at any
time
unless otherwise provided in the Plan or this Agreement;
(b) the
grant of Stock Units is voluntary and occasional and does not create any
contractual or other right to receive future grants of Stock or Stock Units,
or
benefits in lieu of Stock or Stock Units, even if Stock or Stock Units have
been
granted repeatedly in the past;
(c) all
decisions with respect to future grants, if any, will be at the sole discretion
of the Company;
(d) the
Employee's participation in the Plan shall not create a right to further
employment with Employer and shall not interfere with the ability of Employer
to
terminate the Employee's employment relationship at any time with or without
cause and it is expressly agreed and understood that employment is terminable
at
the will of either party, insofar as permitted by law;
(e) the
Employee is participating voluntarily in the Plan;
(f) unless
otherwise provided in an employment agreement, stock unit, stock unit grants
and
resulting benefits are an extraordinary item that does not constitute
compensation of any kind for services of any kind rendered to the Company or
the
Employer, and is outside the scope of the Employee's employment contract, if
any;
(g) Stock
Units, Stock Unit grants and resulting benefits are not part of normal or
expected compensation or salary for any purposes, including, but not limited
to
calculating any severance, resignation, termination, redundancy, end of service
payments, bonuses, long-service awards, pension or retirement benefits or
similar payments insofar as permitted by law;
(h) the
future value of the Shares is unknown, may increase or decrease from the date
of
grant or vesting of the Stock Unit and cannot be predicted with certainty;
(i) in
consideration of this grant of Stock Units, no claim or entitlement to
compensation or damages shall arise from termination of this grant of Stock
Units or diminution in value of this grant of Stock Units resulting from
termination of the Employee's employment by the Company or the Employer (for
any
reason whatsoever and whether or not in breach of local labor laws) and the
Employee irrevocably releases the Company and the Employer from any such claim
that may arise; if, notwithstanding the foregoing, any such claim is found
by a
court of competent jurisdiction to have arisen, then, by accepting the terms
of
this Agreement, the Employee shall be deemed irrevocably to have waived any
entitlement to pursue such claim; and
(j) notwithstanding
any terms or conditions of the Plan to the contrary, in the event of involuntary
termination of the Employee's employment (whether or not in breach of local
labor laws), the Employee's right to receive benefits under this Agreement,
if
any, will terminate effective as of the date that the Employee is no longer
actively employed and will not be extended by any notice period mandated under
local law (e.g., active employment would not include a period of "garden leave"
or similar period pursuant to local law); and the Committee shall have the
exclusive discretion to determine when the Employee is no longer actively
employed for purposes of this Agreement.
|
10.
|
Miscellaneous.
|
(a)
The
Company shall not be required to treat as the owner of Stock Units, and
associated benefits hereunder, any transferee to whom such Stock Units or
benefits shall have been so transferred in violation of this Agreement.
(b)
The
parties agree to execute such further instruments and to take such action as
may
reasonably be necessary to carry out the intent of this Agreement.
(c)
Any
notice required or permitted hereunder shall be given in writing and shall
be
deemed effectively given upon delivery to the Employee at his or her address
then on file with the Company.
(d)
If
any change is made to the Stock by reason of any stock split, stock dividend,
recapitalization, combination of shares, exchange of shares or other change
affecting the outstanding Stock as a class without the Company’s receipt of
consideration or any extraordinary dividend paid in cash or other property,
appropriate equitable proportionate adjustments shall be made by the Plan
Administrator to the securities issuable under this Agreement, including changes
to the number of shares issuable, price, if any, to be paid and other
appropriate adjustments. Such adjustments are to be effected in a manner which
shall preclude the enlargement or dilution of rights and benefits under this
Agreement. The adjustments determined by the Plan Administrator shall be final,
binding and conclusive.
(e)
The
Plan is incorporated herein by reference. The Plan and this Agreement constitute
the entire agreement of the parties with respect to the subject matter hereof
and supersede in their entirety all prior undertakings and agreements of the
Company and the Employee with respect to the subject matter hereof, and may
not
be modified adversely to the Employee's interest except by means of a writing
signed by the Company and the Employee. This Agreement is governed by the laws
of the State of Delaware. Capitalized terms used but not defined in this
Agreement have the meanings assigned to them in the Plan. Certain other
important terms governing this contract are contained in the Plan.
(f)
If
the Employee has received this or any other document related to the Plan
translated into a language other than English and if the translated version
is
different than the English version, the English version will control.
(g)
The
provisions of this Agreement are severable and if any one or more provisions
are
determined to be illegal or otherwise unenforceable, in whole or in part, the
remaining provisions shall nevertheless be binding and enforceable.
IN
WITNESS WHEREOF,
the
parties hereto have executed this Restricted Stock Unit Agreement on the date
first above written.
| Xxxxx’x Restaurants, Inc. | ||
| |
|
|
| By: | ||
| Name: | ||
| Title: | ||
| Employee | ||
| Name: | ||
RETAIN
THIS AGREEMENT FOR YOUR RECORDS.
