RESTRICTED STOCK UNIT AGREEMENT
Exhibit
10.33
1999
LONG TERM INCENTIVE PLAN AWARD FOR JANUARY 24, 2008
AGREEMENT made as of January 24, 2008,
by and between YUM! Brands, Inc., a North Carolina corporation having its
principal office at 0000 Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000
("YUM!") and the "Participant".
W I T N E S S E T
H:
WHEREAS, the shareholders of YUM!
approved the Long Term Incentive Plan (the "Plan"), for the purposes and subject
to the provisions set forth in the Plan;
WHEREAS, pursuant to authority granted
to it in said Plan, the Compensation Committee of the Board of Directors of YUM!
(the "Committee"), has granted to Participant restricted stock units (to be
known hereinafter as “Yum Restricted Stock Units” or “YRSUs”) with respect to
the number of shares of YUM! Common Stock as set forth below;
WHEREAS, YRSUs granted under the Plan
are to be evidenced by an Agreement in such form and containing such terms and
conditions as the Committee shall determine; and
WHEREAS, in consideration of this
Award, the Participant is required to agree to restrictions on competition and
solicitation as set forth in this Agreement;
NOW, THEREFORE, it is mutually agreed
as follows:
1. Terms of
Award. The following terms used in this Agreement shall have
the meanings set forth in this paragraph 1:
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(a)
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The
“Participant” is Xxxxx X. Xxxxx.
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(b)
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The
“Grant Date” is January 24, 2008.
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(c)
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The
number of “Units” granted under this Agreement is 187,398
Units. Each “Unit” represents the right to receive one share of
Stock as of the Delivery Date, to the extent that the Participant is
vested in such Units as of the Delivery Date, subject to the terms of this
Agreement and the Plan.
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(d)
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The
“Delivery Date” shall be the day that is six months after the date on
which the Participant incurs a Separation from Service; provided that if
the Participant’s Separation from Service occurs by reason of his death,
the “Delivery Date” will be his date of
death.
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Other
words and phrases used in this Agreement are defined in the Plan or elsewhere in
this Agreement. Except where the context clearly implies or indicates
the contrary, a word, term, or phrase used in the Plan is similarly used in this
Agreement.
2. Award. The
Participant is hereby granted the number of Units set forth in paragraph
1.
3. Dividends and Voting
Rights. The Participant will be credited with additional Units
to reflect dividends payable with respect to Stock during the period between the
Grant Date and the date shares are delivered to the Participant pursuant to
paragraph 5. The number of Units to be credited by reason of
dividends shall equal the number of shares of Stock which could be purchased
with the dividends (assuming each Unit was a share of Stock), based on the value
of such Stock at the time such dividends are paid. Dividends shall be
vested at the time, if any, at which the Units granted in accordance with
paragraph 1 of this Agreement are vested. No dividends shall be
credited to or for the benefit of the Participant for Units with respect to
record dates occurring prior to the Grant Date, or with respect to record dates
occurring on or after the date, if any, on which the Participant has forfeited
those Units. The Participant shall not be a shareholder of record
with respect to the Units and shall have no voting rights with respect to the
Units prior to the Delivery Date.
4. Vesting and
Forfeiture. If a Separation from Service does not occur prior
to the four-year anniversary of the Grant Date, then the Participant shall
become vested in all Units credited to the Participant under this Agreement on
such four-year anniversary, subject to the provisions of paragraph
8. If a Change in Control occurs prior to the four-year anniversary
of the Grant Date and prior to the Participant’s Separation from Service, then
the Participant shall become vested in all Units credited to the Participant
under this Agreement on the Change in Control, subject to the provisions of
paragraph 8. If the Participant’s Separation from Service occurs
prior to the four-year anniversary by reason of death or disability, then the
Participant shall become vested in all Units credited to the Participant under
this Agreement on the Separation from Service, subject to the provisions of
paragraph 8. If the Participant’s Separation from Service occurs for
reasons other than death or disability prior to the four-year anniversary of the
Grant Date and prior to a Change in Control, the Participant shall forfeit all
Units on Separation from Service. "Disability" shall mean the total
disability of the Participant as determined by the Committee, upon the basis of
such evidence as the Committee deems necessary and advisable.
5. Delivery of
Shares. If the Participant is vested in the Units as of the
Separation from Service, and prior to delivery of the shares in accordance with
this paragraph 5, such Units have not been forfeited in accordance with
paragraph 8, then, on the Delivery Date, the Participant shall receive one share
of Stock for each Unit credited to the Participant, subject to the terms of this
Agreement and the Plan. As of the date of distribution of Shares with
respect to any Units, such Units shall be canceled.
6. Withholding. All
deliveries and distributions under this Agreement are subject to withholding of
all applicable taxes. At the election of the Participant, and subject
to such rules and limitations as may be established by the Committee from time
to time, such withholding obligations may be satisfied through the surrender of
shares of Stock (i) which the Participant already owns; or (ii) to which the
Participant is otherwise entitled under the Plan; provided, however, that shares
described in this clause (ii) may be used to satisfy not more than the minimum
statutory withholding obligation (based on minimum statutory withholding rates
for Federal and state tax purposes, including payroll taxes, that are applicable
to such taxable income).
7. Heirs and
Successors. This Agreement shall be binding upon and inure to
the benefit of any assignee or successor in interest to YUM!, whether by merger,
consolidation or the sale of all or substantially all of the assets of
YUM!. YUM! will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of YUM! to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that YUM! would be required
to perform if no such succession had taken place. This Agreement
shall be binding upon and inure to the benefit of the Participant or his or her
legal representative and any person to whom the YRSUs may be transferred by will
or the applicable laws of descent and distribution. If any rights
exercisable by the Participant or benefits distributable to the Participant
under this Agreement have not been exercised or distributed, respectively, at
the time of the Participant’s death, such rights shall be exercisable by the
Designated Beneficiary, and such benefits shall be distributed to the Designated
Beneficiary, in accordance with the provisions of this Agreement and the
Plan. The “Designated Beneficiary” shall be the beneficiary or
beneficiaries designated by the Participant in a writing filed with the
Committee in such form and at such time as the Committee shall
require. If a deceased Participant fails to designate a beneficiary,
or if the Designated Beneficiary does not survive the Participant, any rights
that would have been exercisable by the Participant and any benefits
distributable to the Participant shall be exercised by or distributed to the
legal representative of the estate of the Participant. If a deceased
Participant designates a beneficiary and the Designated Beneficiary survives the
Participant but dies before the Designated Beneficiary’s exercise of all rights
under this Agreement or before the complete distribution of benefits to the
Designated Beneficiary under this Agreement, then any rights that would have
been exercisable by the Designated Beneficiary shall be exercised by the legal
representative of the estate of the Designated Beneficiary, and any benefits
distributable to the Designated Beneficiary shall be distributed to the legal
representative of the estate of the Designated Beneficiary.
8. Non-Compete and
Non-Solicitation. During the period beginning on the Grant
Date and continuing until the two-year anniversary of the Separation from
Service, and regardless of whether the Participant’s Separation from Service
occurs before, at, or after the four-year anniversary of the Grant Date, the
Participant covenants and agrees as follows:
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(a)
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He
shall not, without the prior written consent of the Chairman of the
Compensation Committee of Yum!, Participate (as defined below) in the
management of any national or international quick service restaurant
organization headquartered in the United States or doing business in the
United States or Asia, including the following entities and each of their
subsidiaries or successor
companies:
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XxXxxxxx’x Corporation
- Wendy’s
Corporation
- Burger
King Corporation
- AFC
Enterprises, Inc.
- Subway
Restaurants
-
Domino’s Pizza
- Little
Caesar’s Pizza
For
purposes of this paragraph (a), “Participate” shall mean: (A) holding a position
in which the Participant directly manages such a business entity; (B) holding a
position in which anyone else who directly manages such a business entity is in
the Participant’s reporting chain or chain-of-command, regardless of the number
of reporting levels between them; or (C) providing input, advice, guidance, or
suggestions in any material respect regarding the management of such a business
entity to anyone responsible therefore.
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(b)
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He
shall not directly or indirectly solicit or encourage any employee of Yum!
or any Subsidiary who was an employee of the Company or Subsidiary as of
the Participant’s Separation from Service, to leave the Company or
Subsidiary or accept any position with any other
entity.
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(c)
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He
shall not directly or indirectly contact any then-existing franchisees or
vendors of the Company or the Subsidiaries for the purpose of soliciting
or encouraging such franchisees or vendors to alter their relationship
with the Company or Subsidiaries in any way that would be adverse to the
Company or Subsidiary.
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(d)
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If,
prior to the Distribution Date, the Participant violates any of the
provisions of this paragraph 8, he shall forfeit all YRSUs and the right
to distribution of shares (or other amounts) in settlement of those
YRSUs.
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(e)
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The
Participant acknowledges that the Company would be irreparably injured by
a violation of this paragraph 8, and he agrees that the Company, in
addition to any other remedies available to it for such breach or
threatened breach, shall be entitled to a preliminary injunction,
temporary restraining order, or other equivalent relief, restraining the
Participant from any actual or threatened breach of this paragraph
8. If a bond is required to be posted in order for the Company
to secure an injunction or other equitable remedy, the parties agree that
said bond need not be more than a nominal
sum.
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(f)
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The
restrictions imposed by this paragraph 8 shall be in addition to the
restrictions imposed by subsection 6.5 of the
Plan.
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9. Administration. The
authority to manage and control the operation and administration of this
Agreement shall be vested in the Committee, and the Committee shall have all
powers with respect to this Agreement as it has with respect to the
Plan. Any interpretation of the Agreement by the Committee and any
decision made by it with respect to the Agreement is final and binding on all
persons.
10. Plan
Governs. Notwithstanding anything in this Agreement to the
contrary, the terms of this Agreement shall be subject to the terms of the Plan,
a copy of which may be obtained by the Participant from the office of the
Secretary of YUM!; and this Agreement is subject to all interpretations,
amendments, rules and regulations promulgated by the Committee from time to time
pursuant to the Plan.
11. Fractional
Shares. In lieu of issuing a fraction of a share of Stock
resulting from an adjustment of the Award pursuant to paragraph 4.2(f) of the
Plan or otherwise, YUM! will be entitled to pay to the Participant an amount
equal to the fair market value of such fractional share.
12. Not An Employment
Contract. The Award will not confer on the Participant any
right with respect to continuance of employment or other service with YUM! or
any Subsidiary, nor will it interfere in any way with any right YUM! or any
Subsidiary would otherwise have to terminate or modify the terms of such
Participant’s employment or other service at any time.
13. Notices. Any
written notices provided for in this Agreement or the Plan shall be in writing
and shall be deemed sufficiently given if either hand delivered or if sent by
fax or overnight courier, or by postage paid first class
mail. Notices sent by mail shall be deemed received three business
days after mailing but in no event later than the date of actual
receipt. Notices shall be directed, if to the Participant, at the
Participant’s address indicated by the records of YUM!, or if to YUM!, at the
principal executive office of YUM!.
14. No Rights As
Shareholder. The Participant shall not have any rights of a
shareholder with respect to the shares subject to the Award, until a stock
certificate has been duly issued as provided herein.
15. Amendment. This
Agreement may be amended in accordance with the provisions of the Plan, and may
otherwise be amended by written agreement of the Participant and YUM! without
the consent of any other person.
16. Rights to Future Grants;
Compliance with Law. By entering into this Agreement, the
Participant acknowledges and agrees that the award and acceptance of YRSUs
pursuant to this Agreement does not entitle the Participant to future grants of
stock options or other awards under the Plan or any other plan. The
Participant further agrees to seek all necessary approval under, make all
required notifications under and comply with all laws, rules and regulations
applicable to the ownership of YRSUs, including, without limitation, currency
and exchange laws, rules and regulations.
17. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina.
18. Agreement by
Participant. As a condition of receiving this Award, the
Participant must sign and return a copy of this Agreement to Xxxxx Xxxxxx not
later than February 1, 2008. Failure to return a signed copy by that
deadline will cause the Award to expire, and the Participant shall have no
rights under this Award.
19. Separation from
Service. For purposes of this Agreement, the term “Separation
from Service” shall have the meaning ascribed to it in Code §409A, including the
regulations and other guidance thereunder.
IN
WITNESS WHEREOF, the Participant has executed this Agreement, and YUM! has
caused these presents to be executed in its name and on its behalf, all as of
the Grant Date.
Participant
__________________________________________
YUM!
Brands, Inc.
By:
______________________________________
Its:
______________________________________
