LUBY’S, INC. INCENTIVE STOCK PLAN RESTRICTED STOCK AWARD AGREEMENT
Exhibit
10.1
XXXX’X,
INC.
INCENTIVE
STOCK PLAN
THIS
RESTRICTED STOCK AWARD AGREEMENT,
dated as of DATE (the “Award Agreement”),
is entered into by and between by XXXX’X, INC. (the "Company")
and EMPLOYEE (the "Grantee"), upon the
following terms and conditions:
1. Grant. Company
hereby grants ______ shares of
Restricted Stock (the
“Restricted Stock”) as of DATE (the
“Award Date”) subject to the restrictions set forth
in this Award Agreement and
subject to all applicable provisions of the Luby’s Incentive Stock Plan (The
“Plan”), as it may be amended from time to time, which provisions are
incorporated by reference and made a part hereof to the same extent as if set
forth in their entirety herein, and to such other terms necessary or appropriate
to the grant hereof having been made. Each share of Restricted Stock
corresponds to one (1) share of Common Stock, par value $0.32 per share ("Common
Stock"), of the Company.
2. Restrictions
on Transfer. Except as otherwise provided herein, Restricted
Stock granted hereunder shall become unrestricted on the third anniversary
of
the Award Date. (“Lapse Date”). None of the Restricted
Stock may be sold, transferred, pledged, hypothecated or otherwise encumbered
or
disposed of until the restrictions have lapsed in accordance with this Award
Agreement. Except as provided in Section 6, all Restricted Stock
to which restrictions have not yet lapsed shall be forfeited to the Company
immediately upon Termination of Grantee’s Employment.
3. Rights
as Stockholder. Grantee shall have no rights as a stockholder with
respect to any Restricted Stock until a stock certificate for the shares is
issued in Grantee’s name. Once any such stock certificate is issued in Grantee’s
name, Grantee shall be entitled to all rights associated with ownership of
the
Restricted Stock, except that the Restricted Stock will remain subject to the
restrictions set forth herein and if any additional shares of Common Stock
become issuable on the basis of such Restricted Stock (e.g., a stock dividend),
any such additional shares shall be subject to the same restrictions as the
shares of Restricted Stock to which they relate. Each stock certificate
evidencing any Restricted Stock shall contain such legends and stock transfer
instructions or limitations as may be determined or authorized by the Committee
which administers the Plan (the “Committee”) in its sole discretion; and the
Company may, in its sole discretion, retain custody of any such certificate
throughout the period during which any restrictions are in effect and require,
as a condition to issuing any such certificate, that the Grantee tender to
the
Company a stock power duly executed in blank relating thereto. Any
dividends payable on the Restricted Stock shall be paid in cash to Grantee
on
the day on which the corresponding cash dividends are paid to shareholders
of
record, or as soon as administratively practicable thereafter, but in no event
later than the fifteenth (15th) day of
the third
calendar month following the day on which such cash dividends are paid to
shareholders of record.
4. Adjustments. In
the event of any change in the outstanding Common Stock by reason of a stock
split, stock dividend, combination or reclassification of shares,
recapitalization, merger, or similar event, the Committee may adjust
proportionally the number of shares of Restricted Stock. In the event
of any other change affecting the Common Stock or any distribution (other than
normal cash dividends) to holders of Common Stock, such adjustments as may
be
deemed equitable by the Committee, including adjustments to avoid fractional
shares, may be made to give proper effect to such event.
5. Non-Assignability. No
benefit payable under, or interest in, this Award Agreement or in the shares
of
Common Stock to be issued to Grantee hereunder shall be subject in any manner
to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
or
charge and any such attempted action shall be void and no such benefit or
interest shall be, in any manner, liable for, or subject to, Grantee’s or
Grantee’s beneficiary’s debts, contracts, liabilities or torts; provided,
however, nothing in this Section shall prevent transfer (i) by will,
(ii) by applicable laws of descent and distribution or (iii) to an
alternate payee to the extent that a Qualified Domestic Relations Order so
provides, as further described in the Plan.
6. Continuous
Employment. If Grantee’s employment with the Company or an
Affiliate of the Company is terminated for any reason, except as provided below,
Grantee’s Restricted Stock shall automatically expire and terminate, and shall
be forfeited to the Company, on the date of Termination of Grantee’s
Employment. Notwithstanding anything herein to the contrary, the
Lapse Date of the Restricted Stock may be accelerated (by notice in writing)
by
the Company in its sole discretion at any time. “Termination of
Grantee’s Employment” shall mean the last date that Grantee is either an
employee of the Company or an Affiliate or engaged as a consultant or director
of the Company or an Affiliate.
(a) Retirement. If
Grantee terminates Grantee’s employment with the Company or an Affiliate of the
Company by retirement on or after Grantee's 65th birthday, then the Lapse Date
of the Restricted Stock granted under this Award Agreement shall be accelerated
as of the day preceding Grantee’s retirement, subject to Grantee’s execution of
a general release and waiver in a form provided by the Company.
(b) Death. If
Grantee’s employment with the Company or an Affiliate of the Company terminates
due to Grantee’s death, then the Lapse Date of the Restricted Stock granted
under this Award Agreement will become unrestricted as of the day preceding
Grantee’s death.
(c) Permanent
and Total Disability. If Grantee’s employment with the
Company or an Affiliate of the Company terminates due to Grantee’s Permanent and
Total Disability, and Grantee has been employed by Company for at least 3 years,
then the Lapse Date of the Restricted Stock granted under this Award Agreement
will be accelerated, as of the date preceding the termination of Grantee’s
employment, subject to execution by Grantee of a general release and waiver
in a
form provided by the Company.
“Permanent
and Total Disability” shall have the meaning ascribed to such term under
Section 22(e)(3) of the Internal Revenue Code of 1986, as amended (together
with the regulations and other official guidance promulgated thereunder, the
“Code”), and with such permanent and total disability being certified prior to
termination of Grantee’s employment by (i) the Social Security
Administration, (ii) such other body having the relevant decision-making
power applicable to the Company (such as an insurance carrier), or (iii) an
independent medical advisor appointed by the Company in its sole discretion,
as
applicable.
(d) Leave
of Absence. Lapse Date may be suspended by the Company in
its sole discretion during a leave of absence by Grantee as provided from time
to time according to Company policies and practices.
(e) Change
of Control. All Restricted Stock shall become immediately
unrestricted upon a Change of Control, as defined in the Plan. If, on the date
of termination of Grantee's employment with the Company or an affiliate of
the
Company, Grantee is entitled to rights or benefits under a written Change of
Control Agreement with the Company containing provisions relating to Restricted
Stock which are more favorable to Grantee than those contained in this Award
Agreement, the provisions of such Change of Control Agreement shall
prevail.
7. Disputes. If
the employment of Grantee shall terminate prior to the Lapse Date of the
Restricted Stock, and there exists a dispute between Grantee and the Company
as
to the satisfaction of the conditions of this Award Agreement, the Restricted
Stock shall remain subject to the restrictions contained herein until the
resolution of such dispute, regardless of any intervening expiration of the
restrictions, except that any dividends that may be payable to the holders
of
record of shares of Common Stock as of a date during the period from termination
of Grantee's employment to the resolution of such dispute (the "Suspension
Period") shall:
(1) to
the extent to which such dividends would have been payable to Grantee on the
shares of Restricted Stock, be held by the Company as part of its general funds,
and shall be paid to or for the account of Grantee only upon, and in the event
of, a resolution of such dispute in a manner favorable to Grantee, and then
only
with respect to such of the shares as to which such resolution shall be so
favorable, and
(2) be
canceled upon, and in the event of, a resolution of such dispute in a manner
unfavorable to Grantee, and then only with respect to such of the shares as
to
which such resolution shall be so unfavorable.
8. Form
and Timing of Payment. Restricted Stock shall be paid by the
Company in shares of Common Stock (on a one-to-one basis) on, or as soon as
practicable after, the Lapse Date of the Restricted Stock has passed (which,
for
purposes of this Section, includes the date of any acceleration as referenced
in
Section 6), but in any event, within the period ending on the later to occur
of
the date that is 2 1/2 months
from
the end of (i) Grantee’s tax year that includes the Lapse Date of the
Restricted Stock, or (ii) the Company’s tax year that includes the
applicable Lapse Date of the Restricted Stock (which payment schedule is
intended to comply with the “short-term deferral” exemption from the application
of Section 409A of the Code). Shares of Common Stock issued that become
unrestricted shall be deemed to be issued in consideration of past services
actually rendered by Grantee to the Company or an Affiliate or for its benefit
for which Grantee has not previously been compensated or for future services
to
be rendered, as the case may be, which the Company deems to have a value at
least equal to the aggregate par value thereof.
9. Tax
Withholding. All payments or grants made pursuant to this
Award Agreement shall be subject to withholding of all applicable taxes, based
on the minimum statutory withholding rates for federal, state and local tax
purposes, including any employment taxes resulting from the lapsing of the
restrictions (the “Tax Obligations”). In the event that Company
requests Grantee to do so, Grantee hereby agrees that Grantee will satisfy
the
Tax Obligations resulting from the lapsing of the restrictions by authorizing,
and Grantee hereby authorizes, the Company to withhold from the shares of Common
Stock otherwise deliverable to Grantee as a result of the lapsing of the
restrictions in accordance herewith, a number of shares having a fair market
value less than or equal to the Tax Obligations. Any shares of Common Stock
withheld by the Company hereunder shall not be deemed to have been issued by
the
Company for any purpose under the Plan and shall remain available for issuance
thereunder.
The
number of shares of Common Stock tendered by Grantee pursuant to this Section
shall be determined by the Company and be valued at the fair market value of
the
Common Stock on the date the Tax Obligations arise. To the extent that the
number of shares tendered by Grantee pursuant to this Section is insufficient
to
satisfy the Tax Obligations, Grantee hereby authorizes the Company to deduct
from Grantee’s compensation the additional amount necessary to fully satisfy the
Tax Obligations. If the Company chooses not to deduct such amount from Grantee’s
compensation, Grantee agrees to pay the Company, in cash or by check, the
additional amount necessary to fully satisfy the Tax Obligations. Grantee agrees
to take any further actions and execute any additional documents as may be
necessary to effectuate the provisions of this Section. No certificates
representing the shares of Common Stock shall be delivered to Grantee unless
and
until Grantee has satisfied Grantee’s obligations with respect to the full
amount of all federal, state and local tax withholding or other employment
taxes
applicable to Grantee resulting from the payment of the Restricted Stock
earned.
10. Section
83(b) Election. Under Section 83 of the Code, the difference
between the purchase price paid by the Grantee for the Restricted Stock, if
any,
and their fair market value on the Lapse Date of the Restricted Stock, will
be
reportable as ordinary income at that time. Grantee may elect to be taxed on
the
Award Date with respect to Restricted Stock rather than when such restrictions
lapse by filing an election under Section 83(b) of the Code in a form similar
to
that set forth in Exhibit A hereto with the Internal Revenue Service within
30 days after the Award Date. Failure to make this filing within the 30-day
period will result in the recognition of ordinary income by Grantee (in the
event the Fair Market Value of the shares increases after the Award Date) as
the
forfeiture restrictions lapse.
GRANTEE
ACKNOWLEDGES THAT IT IS HIS OR HER SOLE RESPONSIBILITY, AND NOT THE COMPANY’S,
TO FILE A TIMELY ELECTION UNDER SECTION 83(b), EVEN IF GRANTEE REQUESTS THE
COMPANY OR ITS REPRESENTATIVES TO MAKE THIS FILING ON GRANTEE’S BEHALF. GRANTEE
IS RELYING SOLELY ON HIS OR HER OWN ADVISORS WITH RESPECT TO THE DECISION AS
TO
WHETHER OR NOT TO FILE ANY 83(b) ELECTION.
11. Award
Agreement Subject to Plan. This Award Agreement is
subject to the Plan. The terms and provisions of the Plan
(including any subsequent amendments thereto) are hereby incorporated
herein by reference thereto. In the event of a conflict between any
term or provision contained herein and a term or provision of the Plan, the
applicable terms and provisions of the Plan will govern and
prevail. All definitions of words and terms contained in the
Plan shall be applicable to this Award Agreement.
12. No
Retention Rights. Nothing herein contained shall confer on the Grantee
any right with respect to continuation of employment, or interfere with the
right of the Company or its Affiliates to terminate at any time the service
of
the Grantee. Any questions as to whether and when there has been a
termination of Grantee's employment, and the cause of such termination, shall
be
determined by the Committee, and its determination shall be final.
13. Applicable
Law. The validity, construction, interpretation and enforceability of
this Award Agreement shall be determined and governed by the laws of the State
of Texas without regard to any conflicts or choice of law rules or principles
that might otherwise refer construction or interpretation of this Award
Agreement to the substantive law of another jurisdiction, and any litigation
arising out of this Award Agreement shall be brought in Xxxxxx County,
Texas.
14. Severability.
The provisions of this Award Agreement are severable and if any one or more
provisions may be determined to be illegal or otherwise unenforceable, in whole
or in part, the remaining provisions, and any partially unenforceable provision
to the extent enforceable in any jurisdiction, shall nevertheless be binding
and
enforceable.
15. Waiver.
The waiver by the Company of a breach of any provision of this Award Agreement
by Grantee shall not operate or be construed as a waiver of any subsequent
breach by Grantee.
16. Binding
Effect. The provisions of this Award Agreement shall be binding upon
the parties hereto, their successors and assigns, including, without limitation,
the Company, its successors or assigns, the estate of the Grantee and the
executors, administrators or trustees of such estate and any receiver, trustee
in bankruptcy or representative of the creditors of the Grantee.
17. Entire
Agreement; Amendment. This Award Agreement and any other
agreements and instruments contemplated by this Award Agreement contain the
entire agreement of the parties, and this Award Agreement may be amended only
in
writing signed by both parties.
18. Notices. Any
notice hereunder by the holder of this Option shall be given to the Company
in
writing and such notice and any payment hereunder shall be deemed duly given
or
made only upon receipt thereof at the Company's principal office in Houston,
Texas, or at such other place as the Company may designate by written notice
to
the holder of this Option. Any notice or other communication
hereunder to the holder of this Option shall be in writing and shall be deemed
duly given if mailed or delivered to the holder at such address as he may have
on file with the Company.
IN
WITNESS WHEREOF, the Company has caused this Award Agreement to be executed
in
duplicate and its corporate seal to be hereunto affixed by its proper corporate
officers thereunto duly authorized.
ATTEST:
XXXX'X, INC.
ACCEPTED:
Grantee
