RESTRICTED STOCK AGREEMENT
THIS
RESTRICTED STOCK AGREEMENT
(the
“Agreement”) is made and entered into by and between OUTBACK STEAKHOUSE, INC., a
Delaware corporation (the “Company”), and XXXX
XXXXXXXXXX (“Grantee”),
effective on the date of commencement of Grantee’s employment with the Company,
under the following circumstances:
WHEREAS,
Grantee
is employed by the Company in the position of Senior Vice President and
Chief
Financial Officer and,
as a
matter of separate inducement and agreement in connection with Grantee's
employment, and not in lieu of any salary or other compensation for Grantee’s
services, the Company desires to enter into this Agreement with Grantee;
and
WHEREAS,
the
Company considers it to be in its best interests to provide Grantee an
inducement to acquire an ownership interest in the Company and thereby an
additional incentive to advance the interests of the Company.
NOW,
THEREFORE,
intending to be legally bound, in consideration of the mutual covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
Section
1. Grant.
On
the
effective date hereof the Company hereby grants to One Hundred
Thousand
(100,000) shares of the
Company’s Common Stock, $0.01 par value (the “Restricted Stock”).
The
Restricted Stock has been granted pursuant to the following provisions of this
Agreement:
Section
2. Vesting.
The
Restricted Stock will vest as follows:
(a)
Five
(5) years from the commencement of Grantee’s employment with the Company (the
“First Vesting Date”) 50,000 shares of Restricted Stock shall vest; provided
however if on the First Vesting Date the market capitalization of the Company
exceeds $6,000,000,000, an additional 10,000 shares of Restricted Stock shall
vest; and
(b)
Seven
(7) years from the commencement of Grantee’s employment with the Company (“Final
Vesting Date”) all remaining shares of Restricted Stock granted herein shall
vest.
(c)
Notwithstanding the foregoing, in the event Grantee’s employment with the
Company is terminated by the Company for any reason other than death, Disability
or Cause (as those capitalized terms are defined in Grantee’s employment
agreement with the Company) during the time period starting on the third
anniversary of commencement of Grantee’s employment with the Company and ending
on the First Vesting Date, 50,000 shares of Restricted Stock shall vest
immediately upon such termination of Grantee’s employment with the Company. If
Grantee’s employment with the Company is not terminated by the Company for a
reason other than death Disability or Cause subsequent to the third anniversary
of the commencement of Grantee’s employment with the Company and prior to the
First Vesting Date, this paragraph (c) shall be of no effect.
Section
3. Purchase
Price and Terms.
The
purchase price for the Restricted Stock is Zero and 01/100 Dollars ($0.01)
per
share. Payment shall be made by Grantee upon execution of this Agreement. The
Restricted Stock will be issued in uncertificated form. The Restricted Stock
will be recorded in the name of the Grantee in the books and records of the
Company’s transfer agent. Upon vesting and Grantee’s compliance with
Section
8
hereof,
the Company shall cause certificates for the Restricted Stock to be issued
to
Grantee.
Section
4. Transferability.
The
Restricted Stock cannot be transferred or encumbered in any manner prior to
vesting.
Section
5. Termination
of Employment.
Except
as otherwise provided in paragraph
(c)
of
Section
2
hereof,
if the Grantee does not remain employed by the Company in the position of
Chief
Financial Officer
or
higher through the Final Vesting Date, all shares of Restricted Stock not vested
as of the date Grantee is no longer employed by the Company in the position
of
Chief
Financial Officer
or
higher will be forfeited.
Section
6. Shareholder
Rights and Restrictions.
Except
with regard to the disposition or encumbrance of Restricted Stock, the Grantee
will generally have all rights of a shareholder with respect to the Restricted
Stock from the date of grant, including, without limitation, the right to
receive dividends with respect to such Restricted Stock and the right to vote
such Restricted Stock, subject to any restrictions in this
Agreement.
Section
7. Dividends.
All
dividends payable on the Restricted Stock (whether or not vested) will be
payable in cash.
Section
8. Taxes.
The
Grantee hereby agrees to pay to the Company any federal, state, or local taxes
of any kind required by law to be withheld and remitted by the Company with
respect to the Restricted Stock. The Grantee may satisfy such tax obligation,
in
whole or in part, by (i) electing to have the Company withhold a portion of
the
Restricted Stock otherwise to be delivered upon vesting of the Restricted Stock
with a Fair Market Value equal to the amount of such taxes, or (ii) delivering
to the Company other shares of common stock of the Company with a Fair Market
Value equal to the amount of such taxes. The election, if any, must be made
on
or before the date that the amount of tax to be withheld is determined. If
the
Grantee does not make such payment to the Company, the Company shall have the
right to withhold from any payment of any kind otherwise due to the Grantee
from
the Company, any federal, state or local taxes of any kind required by law
to be
withheld with respect to the award or vesting of the Restricted
Stock.
Section
10. Securities
Law Compliance.
(a) The
Grantee agrees that the Company may impose such restrictions on the Restricted
Stock as are deemed advisable by the Company, including, without limitation,
restrictions relating to listing or trading requirements. The Grantee further
agrees that certificates representing the Restricted Stock may bear such legends
and statements as the Company shall deem appropriate or advisable to assure,
among other things, compliance with applicable securities laws, rules, and
regulations.
(b) The
Grantee agrees that any Restricted Stock which the Grantee may acquire by virtue
of this Agreement may not be transferred, sold, assigned, pledged, hypothecated
or otherwise disposed of by the Grantee unless (i) a registration statement
or
post-effective amendment to a registration statement under the Securities Act
of
1933, as amended, with respect to such Restricted Stock has become effective
so
as to permit the sale or other disposition of such Restricted Stock by the
Grantee, or (ii) there is presented to the Company an opinion of counsel
satisfactory to the Company to the effect that the sale or other proposed
disposition of such Restricted Stock by the Grantee may lawfully be made
otherwise than pursuant to an effective registration statement or post-effective
amendment to a registration statement relating to such Restricted Stock under
the Securities Act of 1933, as amended.
Section
11. Rights
of the Grantee.
The
granting of the Restricted Stock shall in and of itself not confer any right
of
the Grantee to continue in the employ of the Company, any subsidiary or
affiliate and shall not interfere in any way with the right of the Company,
any
subsidiary or affiliate to terminate the Grantee's employment at any time,
subject to the terms of any employment agreement between the Company and the
Grantee.
Section
12. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Florida, except to the extent otherwise governed by Federal
law.
Section
13 Right
to Withhold Amounts Owed to the Company.
The
Company shall have the right to condition the vesting of any shares of
Restricted Stock on the Grantee’s payment of all amounts then due and owing to
the Company or any subsidiary or affiliate.
IN
WITNESS WHEREOF, the parties have subscribed their names hereto.
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“COMPANY”
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Attest:
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By:
/s/
Xxxxxx X. Xxxxx
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By:
/s/
A. Xxxxxxx Xxxxx
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XXXXXX
X. XXXXX, Secretary
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A.
XXXXXXX XXXXX, III, Chief Executive
Officer
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DATE
OF
GRANT: _________________,
2005.
ACCEPTANCE
OF AGREEMENT
The
Grantee hereby:
(a) Acknowledges
that he has received a copy of the Company’s most recent Annual Report and other
communications routinely distributed to the Company’s shareholders;
(b) Accepts
this Agreement and the Restricted Stock granted to him under this Agreement
subject to all provisions of this Agreement;
(c) Represents
and warrants to the Company that he is acquiring the Restricted Stock for his
own account, for investment, and not with a view to or any present intention
of
selling or distributing the Restricted Stock either now or at any specific
or
determinable future time or period or upon the occurrence or nonoccurrence
of
any predetermined or reasonably foreseeable event; and
(d) Agrees
that no transfer of the Restricted Stock will be made unless the Restricted
Stock have been duly registered under all applicable Federal and state
securities laws pursuant to a then effective registration which contemplates
the
proposed transfer or unless the Company has received the written opinion of,
or
satisfactory to, its legal counsel that the proposed transfer is exempt from
such registration.
Grantee’s Signature:
/s/ Xxxx X. Xxxxxxxxxx
XXXX
XXXXXXXXXX
