RESTRICTED STOCK AGREEMENT
Exhibit
10.56
A.
Xxxxxxx Xxxxx, III
THIS
RESTRICTED STOCK AGREEMENT
(the
“Agreement”) is made and entered into effective December 31, 2005, by and
between OS RESTAURANT SERVICES, INC., a Delaware corporation (“OSRS”), OUTBACK
STEAKHOUSE, INC., a Delaware corporation (the “Company”), and A.
Xxxxxxx Xxxxx, III
(“Grantee”), under the following circumstances:
WHEREAS,
OSRS is
an affiliate of the Company; and
WHEREAS,
Grantee
is employed by OSRS or its affiliate in the position of Chief
Executive 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, OSRS and the Company desire to enter into this Agreement with Grantee;
and
WHEREAS,
OSRS
and the Company consider it to be in their 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 and
OSRS.
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 Grantee One
Hundred Fifty Thousand
(150,000) shares of the
Company’s Common Stock, $0.01 par value (the “Restricted Stock”).
The
Restricted Stock has been granted pursuant to the Outback Steakhouse, Inc.
2004
Amended and Restated Stock Plan (the “Plan”) and is subject to all provisions of
the Plan, which are hereby incorporated herein by reference, and to the
following provisions of this Agreement (capitalized terms not defined herein
are
used as defined in the Plan):
Section
2. Vesting.
The
Restricted Stock will vest as follows:
Vesting
Dates Restricted
Stock
On
December
31, 2009 75,000
On
December
31, 2011 ("Final Vesting Date") 75,000
Section
3. Purchase
Price.
Grantee’s payment for the Restricted Stock is hereby deemed to be prior services
rendered on behalf of the Company and OSRS. 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 except by will or the laws of descent and distribution. The transferee
of any Restricted Stock will be subject to all restrictions, terms, and
conditions applicable to the Restricted Stock.
Section 5. Termination
of Employment.
If the
Grantee does not remain employed by the Company in the position of Chief
Executive 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
Executive 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 until forfeiture, if any, pursuant to Section
5,
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 or in the Plan.
Section
7. Dividends.
All
dividends payable on the Restricted Stock (whether or not vested) will be
payable in cash.
Section
8. Taxes.
Regardless of any action the Company takes with respect to any or all income
tax, social insurance, payroll tax, payment on account or other tax-related
withholding (“Tax-Related Items”), the Grantee acknowledges that the ultimate
liability for all Tax-Related Items is and remains the Grantee’s responsibility
and that the Company (1) makes no representations or undertakings regarding
the treatment of any Tax-Related Items in connection with any aspect of the
grant, including the grant or lapse of the restrictions on the shares, the
subsequent sale of shares and the receipt of any dividends; and (2) does
not commit to structure the terms of the grant or any aspect of the grant to
reduce or eliminate your liability for Tax-Related Items.
The
Grantee shall pay or make adequate arrangements satisfactory to the Company
to
satisfy all withholding and payment on account obligations of the Company.
If
the Grantee does not make such payment to or arrangements with 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. Alternatively, or in addition, if permissible under local
law,
the Company may (a) sell or arrange for the sale of the Restricted Stock to
meet
the withholding obligation for Tax-Related Items, and/or (b) withhold such
amount in shares of Restricted Stock, provided that the Company only withholds
the amount of Restricted Stock necessary to satisfy the minimum withholding
amount. Finally, the Grantee shall pay to the Company any amount of Tax-Related
Items that the Company may be required to withhold as a result of the Grantee’s
receipt of Restricted Stock that cannot be satisfied by the means previously
described. The Company may refuse to honor the exercise and refuse to deliver
the Restricted Stock if the Grantee fails to comply with the Grantee’s
obligations in connection with the Tax-Related Items as described in this
section.
For
purposes of Internal Revenue Code Section 83, the Grantee’s receipt of
Restricted Stock may be deemed a transfer in connection with the performance
of
services. Because of the restrictions on transfer and vesting requirements,
the
Grantee will recognize taxable income in the tax year in which the Restricted
Stock vests. The amount of taxable income is the fair market value of the
Restricted Stock at
the time the Restricted Stock vests.
As
an
alternative, an election is available under Internal Revenue Code Section 83(b)
to include the excess amount in taxable income for the year of the grant.
If
a Section 83(b) election were made, the Company would report the value of the
Restricted Stock to the Internal Revenue Service and will include the excess
amount on your W-2 for the year of grant. IN
CONSIDERATION OF THE GRANTEE’S EMPLOYMENT AND THE ISSUANCE OF THE RESTRICTED
STOCK TO THE GRANTEE, THE GRANTEE AGREES NOT TO MAKE A SECTION 83(b) ELECTION
WITH RESPECT TO THE RESTRICTED STOCK.
Section
9. Subject
to the Plan.
This
Agreement is made and the Restricted Stock evidenced hereby are granted under
and pursuant to, and they are expressly made subject to all of the terms and
conditions of, the Plan, notwithstanding anything herein to the contrary. The
Grantee hereby acknowledges receipt of a copy of the Plan and that the Grantee
has read and understands the terms and conditions of the Plan.
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.
“OSRS”
Attest: OS
RESTAURANT SERVICES,
INC.,
a
Delaware corporation
By:
/s/ Xxxxxx X.
Kadow____________________
By:
/s/ Xxxx X. Avery___________________________
XXXXXX
X.
XXXXX, Secretary
XXXX
X.
XXXXX, Chief Operating Officer
“COMPANY”
Attest:
OUTBACK
STEAKHOUSE, INC.,
a
Delaware corporation
By:
/s/ Xxxxxx X.
Kadow____________________
By:
/s/ Xxxx X. Avery___________________________
XXXXXX
X.
XXXXX, Secretary XXXX
X.
XXXXX, Chief Operating Officer
DATE
OF
GRANT: December
31, 2005
ACCEPTANCE
OF AGREEMENT
The
Grantee hereby:
(a) Acknowledges
that he/she has received a copy of the Plan and 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/her under this Agreement
subject to all provisions of the Plan and this Agreement;
(c) Represents
and warrants to the Company that he/she is acquiring the Restricted Stock for
his/her 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/
A.
Xxxxxxx Xxxxx, III____________________
A.
Xxxxxxx Xxxxx, III
Form
- Officer Restricted Stock Agreement
2005b
4
