EXHIBIT 4.4
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EL CHICO RESTAURANTS, INC.
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is made and entered into this _____ day of
________________, 19___, between El Chico Restaurants, Inc., a Texas corporation
(the "Company"), and __________________ (the "Holder") in connection with the
award of Restricted Stock (hereinafter defined) under the El Chico Restaurants,
Inc. 1995 Stock Plan (the "Plan").
W I T N E S S E T H:
WHEREAS, the Holder is either an employee of the Company or one of its
Affiliates (hereinafter defined) in a key position or a director of the Company
or one of its Affiliates and the Company desires to encourage him to own Stock
(hereinafter defined) and to give him added incentive to advance the interests
of the Company through the Plan and desires to grant the Holder shares of
Restricted Stock of the Company under terms and conditions established by the
Committee (hereinafter defined) and/or the Plan.
NOW, THEREFORE, in consideration of these premises, the parties agree
that the following shall constitute the Agreement between the Company and the
Holder:
1. DEFINITIONS. For purposes of this Agreement, the following
terms shall have the meanings specified below:
1.1 "AFFILIATES" shall mean (a) any corporation, other than
the Company, in an unbroken chain of corporations ending with the Company if
each of the corporations, other than the Company, owns stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of stock
in one of the other corporations in such chain and (b) any corporation, other
than the Company, in an unbroken chain of corporations beginning with the
Company if each of the corporations, other than the last corporation in the
unbroken chain, owns stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
1.2 "AWARD" shall mean an award of Restricted Stock pursuant
to this Agreement which shall be subject to the terms of this Agreement.
1.3 "BOARD OF DIRECTORS" shall mean the board of
directors of the Company.
1.4 "CODE" shall mean the Internal Revenue Code of 1986,
as amended.
1.5 "COMMITTEE" shall mean the committee appointed pursuant to
Section 3 of the Plan by the Board of Directors to administer the Plan.
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1.6 "EXCHANGE ACT" shall mean the Securities Exchange Act
of 1934, as amended.
1.7 "RESTRICTED STOCK" shall mean Stock which is subject to
restrictions and has not become Unrestricted Stock according to Paragraph 2
hereof.
1.8 "RESTRICTED STOCK AGREEMENT" shall mean this agreement
which is entered into in connection with the 1995 Stock Plan.
1.9 "SECURITIES ACT" shall mean the Securities Act of
1933, as amended.
1.10 "STOCK" shall mean the Company's authorized $0.10 par
value common stock, together with any other securities with respect to which
Awards granted hereunder may become unrestricted.
1.11 "UNRESTRICTED STOCK" shall mean shares of Stock that are
vested according to the schedule in Paragraph 2 hereof.
2. AWARD OF STOCK. Subject to the terms and conditions set forth
herein, the Company awards to the Holder _____________ shares of Restricted
Stock. Restrictions on such Restricted Stock shall lapse, and it shall become
Unrestricted Stock according to the following schedule, except as otherwise
provided in Paragraphs 7 and 8:
ON OR AFTER NUMBER OF SHARES
_____shares of Stock
____ additional shares of Stock
____ additional shares of Stock
____ additional shares of Stock
____ additional shares of Stock
On and after the final date stated above, all of the Stock shall be and remain
Unrestricted Stock, except as otherwise provided in Paragraphs 7 and 8.
3. CONSIDERATION FOR AWARD OF STOCK. This Award is made to the
Holder in consideration of services rendered to the Company.
4. TRANSFER OF RESTRICTED STOCK. Stock which is Restricted Stock
shall not be transferable except by will or by the laws of descent and
distribution. The Holder may not make any disposition of Restricted Stock or
any interest therein. As used in this agreement,
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"disposition" means any sale, transfer, encumbrance, gift, donation, assignment,
pledge, hypothecation, or other disposition, whether similar or dissimilar to
those previously enumerated, whether voluntary or involuntary, and whether
during the Holder's lifetime or upon or after the Holder's death, including, but
not limited to, any disposition by operation of law, by court order, by judicial
process, or by foreclosure, levy, or attachment, except a transfer by will or by
the laws of descent or distribution. Any attempted disposition in violation of
this Paragraph 4 shall be void and ineffective for all purposes.
5. STATUS OF HOLDER. The Holder shall not be deemed a stockholder of
the Company with respect to any of the shares of Stock which are Restricted
Stock, until and only to the extent that such shares shall have become
Unrestricted Stock according to the schedule in Paragraph 2. The Company shall
not be required to issue or transfer any certificates for shares of Restricted
Stock until all applicable requirements of law have been complied with and such
shares shall have been duly listed on any securities exchange on which the Stock
may then be listed.
6. NO EFFECT ON CAPITAL STRUCTURE. This Restricted Stock Agreement
shall not affect the right of the Company or any Affiliate thereof to
reclassify, recapitalize or otherwise change its capital or debt structure or to
merge, consolidate, convey any or all of its assets, dissolve, liquidate,
windup, or otherwise reorganize.
7. EARLY TERMINATION OF STOCK VESTING SCHEDULE.
(a) TERMINATION AS AN EMPLOYEE OR DIRECTOR - GENERAL. If the
Holder ceases to be employed by at least one of the employers in the group of
employers consisting of the Company and its Affiliates because the Holder
voluntarily terminates employment with such group of employers and the Holder
does not remain or thereupon become a director of the Company or one or more of
its Affiliates, or if a Holder voluntarily ceases to be a director of at least
one of the corporations in the group of corporations consisting of the Company
and its Affiliates and the Holder does not remain or thereupon become an
employee of the Company or one or more of its Affiliates, the Holder shall be
given an additional thirty (30) days after such termination of employment or
cessation of directorship for Restricted Stock hereunder to become Unrestricted
Stock according to the provisions of Paragraph 2, and thereafter all remaining
Restricted Stock shall revert to the Company.
If a Holder ceases to be employed by at least one of the
employers in the group of employers consisting of the Company and its Affiliates
because any of such entities terminates the Holder's employment for misconduct,
the portion, if any, of the Holder's Stock that remains Restricted Stock at the
time of such termination of employment shall revert to the Company. "Misconduct"
shall be as defined in the Company's Personnel Policy and Procedures Manual.
If a Holder ceases to be employed by at least one of the
employers in the group of employers consisting of the Company and its Affiliates
because one or more of such entities terminates the employment of the Holder,
but not for misconduct, and the Holder does not remain or thereupon become a
director of the Company or one or more of its Affiliates, or if the Holder is
only a director and ceases to be a director of at least one of the corporations
in the group of
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corporations consisting of the Company and its Affiliates, the Holder shall be
given an additional ninety (90) days after such termination of employment or
cessation of directorship for Restricted Stock hereunder to become Unrestricted
Stock according to the provisions of Paragraph 2, and thereafter all remaining
Restricted Stock shall revert to the Company.
(b) TERMINATION AS AN EMPLOYEE OR DIRECTOR - DISABILITY. If
the Holder ceases to be employed by at least one of the employers in the group
of employers consisting of the Company and its Affiliates by reason of
disability (as defined in section 22(e)(3) of the Code) and does not remain or
thereupon become a director of the Company or one or more of its Affiliates, or
if the Holder is only a director and ceases by reason of such disability to be a
director of at least one of the corporations in the group of corporations
consisting of the Company and its Affiliates, the Holder shall be given an
additional twelve (12) months after the date of termination of employment with
or cessation of directorship of such group of employers by reason of disability,
whichever occurs latest, for Restricted Stock hereunder to become Unrestricted
Stock according to the provisions of Paragraph 2, and thereafter all remaining
Restricted Stock shall revert to the Company.
(c) TERMINATION AS AN EMPLOYEE OR DIRECTOR - DEATH. If the
Holder dies while in the employ of the Company or an Affiliate or dies while a
director of the Company or an Affiliate, the Holder's legal representatives,
heirs, legatees, or distributees shall be given an additional twelve (12) months
following the date of the Holder's death for Restricted Stock hereunder to
become Unrestricted Stock according to the provisions of Paragraph 2, and
thereafter all remaining Restricted Stock shall revert to the Company.
8. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, MERGER, ETC.
Notwithstanding any other provision hereof, in the event of any change in the
number of outstanding shares of Stock
(a) effected without receipt of consideration therefor by the
Company, by reason of a stock dividend, or split, combination, exchange of
shares or other recapitalization, merger, or otherwise, in which the Company is
the surviving corporation,
(b) by reason of a spin-off to the shareholders of a part
of the Company into a separate entity, or
(c) by reason of assumptions and conversions of
outstanding grants due to an acquisition by the Company of a separate entity,
then, the number and class of shares subject to this Restricted Stock Agreement
shall be automatically adjusted to accurately and equitably reflect the effect
thereon of such change; provided, however, that any fractional share resulting
from such adjustment may be eliminated. In the event of a dispute concerning
such adjustment, the decision of the Committee shall be conclusive. The number
of shares subject to this Restricted Stock Agreement shall be automatically
reduced by any fraction included therein which results from any adjustment made
pursuant to this Paragraph 8.
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The occurrence of:
(a) a dissolution or liquidation of the Company,
(b) a merger or consolidation (other than a merger effecting a
reincorporation of the Company in another state or any other merger or a
consolidation in which the shareholders of the surviving corporation and their
proportionate interests therein immediately after the merger or consolidation
are substantially identical to the shareholders of the Company and their
proportionate interests therein immediately prior to the merger or
consolidation) in which the Company is not the surviving corporation (or
survives only as a subsidiary of another corporation in a transaction in which
the shareholders of the parent of the Company and their proportionate interests
therein immediately after the transaction are not substantially identical to the
shareholders of the Company and their proportionate interests therein
immediately prior to the transaction),
(c) a transaction in which any person becomes the owner
of 50% or more of the total combined voting power of all classes of stock of the
Company, or
(d) a sale of all or substantially all of the assets of the
Company where it is contemplated that within a reasonable period of time
thereafter the Company will either be liquidated or converted into a
nonoperating company or an extraordinary dividend will be declared resulting in
a partial liquidation of the Company (but in all cases only with respect to
those employees whom it is anticipated will lose their employment with the
Company and its Affiliates as a result of such sale of assets)
shall cause this Restricted Stock Agreement to terminate, except that all
Restricted Stock hereunder shall become Unrestricted Stock immediately prior to
such dissolution, liquidation, merger, consolidation, or transaction, without
regard to the determination as to the periods and installments of vesting
specified in Paragraph 2, if (and only if) such Restricted Stock has not at that
time been forfeited to the Company.
9. COMMITTEE AUTHORITY. Any question concerning the
interpretation of this Agreement, any adjustments required to be made
under Paragraph 8 of this Agreement, and any controversy which may
arise under this Agreement shall be determined by the Committee in its
sole and absolute discretion. Such decision of the Committee shall be
final and binding.
10. PLAN CONTROLS. The terms of this Agreement are governed by the
terms of the Plan, a copy of which is attached hereto as EXHIBIT A and made a
part hereof as if fully set forth herein, and in the case of any inconsistency
between the terms of this Agreement and the terms of the Plan, the terms of the
Plan shall control.
11. NOTICE. Whenever any notice is required or permitted hereunder,
such notice must be in writing and personally delivered or sent by mail. Any
notice required or permitted to be delivered hereunder shall be deemed to
delivered on the date which it is personally delivered, or, whether actually
received or not, on the third business day after it is deposited in the United
States mail, certified or registered, postage prepaid, addressed to the person
who is to receive it at the
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address which such person has theretofore specified by written notice delivered
in accordance herewith. The Company or Holder may change, at any time and from
time to time, by written notice to the other, the address previously specified
for receiving notices. Until changed in accordance herewith, the Company and the
Holder specify their respective addresses as set forth below:
Company: El Chico Restaurants, Inc.
00000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Legal Dept.
Holder:
12. INFORMATION CONFIDENTIAL. As partial consideration for the granting
of an Award pursuant to this Restricted Stock Agreement, the Holder agrees that
he will keep confidential all information and knowledge that he has relating to
the manner and amount of his participation in the Plan; provided, however, that
such information may be disclosed as required by law and may be given in
confidence to the Holder's spouse, tax and financial advisors, or to a financial
institution to the extent that such information is necessary to secure a loan.
13. GOVERNING LAW. Except as is otherwise provided in Paragraph
11.18 of the Plan, where applicable, the provisions of this Agreement shall be
governed by the contract law of the State of Texas.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and the Holder has hereunto set his hand on the day and year first
above written.
EL CHICO RESTAURANTS, INC.
By:
Its:
HOLDER:
Print Name:
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