PERFORMANCE UNIT AGREEMENT
Exhibit
10.28
This
AGREEMENT made as of August 16, 2005, by and between Mexican Restaurants,
Inc.
(the "Corporation"), and Xxxxxx
Vegas (the "Recipient").
WHEREAS,
the Compensation Committee (the “Committee”) of the Board of Directors of the
Corporation has awarded Performance Units to the Recipient, the terms of
which
are set forth in this Agreement, in consideration of Recipient’s continued
service to the Corporation.
NOW,
THEREFORE, the Corporation and the Recipient hereby agree as
follows:
1. Grant
of Award.
The
Recipient is hereby granted as of August 16, 2005, subject to shareholder
approval (the "Grant Date") a Performance Unit Award (the "Award"), subject
to
the terms and conditions hereinafter set forth, with respect to Fifty Thousand
(50,000) performance units ("Units”). This award is subject to the approval by
the shareholders of the Mexican Restaurants, Inc. 2005 Long Term Incentive
Plan.
The Units covered by the Award shall vest, if at all, in accordance with
Section
2. On the date the Award vests (if at all), Recipient will receive, net of
applicable withholding for federal and state income and applicable employment
taxes, a cash payment representing the product of (i) the number of Units
vested
and (ii) the average of the high and low price of the Common Stock, $1.00
par
value per share (the “Fair Market Value Per Share”), of the Corporation on the
last business day immediately preceding the Business Combination.
2. Vesting.
(a) The
Award
will vest, if at all, only if, on or before August 16, 2010, there is a Business
Combination, and then the percentage of the Award which becomes vested will
be
determined based upon the Fair Market Value Per Share of the Corporation
on the
last business day immediately preceding the Business Combination, as
follows:
|
Fair
Market Value Per Share
|
Percentage
of Units Vested
|
|
Less
than $20
|
0%
|
|
$20
or greater
|
100%
|
(b) In
the
event of the termination of Recipient's employment with the Corporation prior
to
a Business Combination, the Award shall be forfeited in its
entirety.
3. Transfer
Restrictions.
This
Award is non-transferable otherwise than by will or by the laws of descent
and
distribution, and may not otherwise be assigned, pledged or hypothecated
and
shall not be subject to execution, attachment or similar process. Upon any
attempt by the Recipient (or the Recipient's successor in interest after
the
Recipient's death) to effect any such disposition, or upon the levy of any
such
process, the Award may immediately become null and void, at the discretion
of
the Board.
4. Arbitration.Any
dispute or controversy arising under or in connection with this Agreement
shall
be settled exclusively by arbitration conducted before a panel of three
arbitrators in Texas in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the arbitrator’s award in
any court having jurisdiction. The Corporation shall pay directly or reimburse
the Recipient for any legal fees incurred by the Recipient in connection
with
any arbitration in which he prevails.
5. Miscellaneous.
This
Agreement (a) shall be binding upon and inure to the benefit of any successor
of
the Corporation, (b) shall be governed by the laws of the State of Texas
and any
applicable laws of the United States, and (c) may not be amended without
the
written consent of both the Corporation and the Recipient. No contract or
right
of employment shall be implied by this Agreement.
6. Incorporation
of 2005 Plan Provisions.
Capitalized terms not otherwise defined herein shall have the meanings set
forth
in the Corporation's Mexican Restaurants, Inc. 2005 Long Term Incentive Plan,
as
amended from time to time.
IN
WITNESS HEREOF, the Recipient and the Corporation have executed this Performance
Unit Award as of the day and year first above written.
|
RECIPIENT:
|
MEXICAN
RESTAURANTS, INC.
|
|
BY:
|
|
|
XXXXXX
VEGAS
|
XXXX
XXXXXXXX
|
