JACK IN THE BOX INC. RESTRICTED STOCK UNIT AWARD UNDER THE 2004 STOCK INCENTIVE PLAN
Exhibit 10.16.04
THIS AGREEMENT is made as of , 20
between Xxxx in the Box Inc., a Delaware
corporation (the “Company”), and «FULL_NAME» (the “Awardee”).
RECITALS
The Compensation Committee (the “Committee”) of the Board of Directors of the Company which
administers the Company’s 2004 Stock Incentive Plan (the “Plan”), has granted to the Awardee as of
, 20 , this award of Restricted Stock Units (RSUs), on the terms and conditions set
forth herein.
AGREEMENT
In consideration of the foregoing and of the mutual covenants set forth herein and other good
and valuable consideration, the parties hereto agree as follows:
1. RESTRICTED STOCK UNIT AWARD. The Committee hereby grants «SHARES» («NUMBER_OF_SHARES») shares of RSUs (the “Award”) to the Awardee on the terms and
conditions set forth herein.
2. VESTING. Notwithstanding any other provision of the Plan to the contrary, and except as
provided in Section 11 (Terminating Transactions) of this Agreement, no portion of this Award shall
become vested at any time prior to the Awardee’s termination of employment with the Company. Upon
the Awardee’s termination of employment, that portion of the Award which shall be considered vested
as of such termination date, shall be determined in accordance with Section 5 of this Agreement. If
any shares subject to this Award would otherwise become vested on a day on which the sale of such
shares would violate the provisions of the Company’s Xxxxxxx Xxxxxxx policy, then such vesting
automatically shall be deemed to occur on the next day on which the sale of such shares would not
violate the Xxxxxxx Xxxxxxx policy.
3. CONSIDERATION. The Company acknowledges that Awardee has earned the
Award Shares in the form of services previously rendered to the Company or a subsidiary pursuant to
Delaware Code Section 153.
4. DISTRIBUTION. An Award that has become vested in accordance with Section 2 of
this Agreement shall be distributed to the Awardee in shares of Common Stock of the
Company equal to the vested RSUs (the “Award Shares”), or cash, as elected by the
Company, in a single lump sum, within 30 days after the six-month anniversary of the
Awardee’s termination of employment (provided that “termination of employment” shall
have the same meaning as the term “separation from service” under Code Section 409A
and the regulations and other guidance issued thereunder). If the Company elects a
cash distribution, the amount shall be determined by multiplying (i) the number of
Award Shares which would have been distributed, by (ii) the NASDAQ closing price per
share for the Common Stock of the Company on the trading date immediately preceding
the date of the six-month anniversary of the Awardee’s
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termination of employment, less any required taxes which the Company determines it must withhold.
If the Company elects a stock distribution, the shares of Common Stock underlying this Award shall
be registered in the name of the Awardee (as evidenced by the appropriate entry on the books of the
Company or a duly authorized transfer agent of the Company).
5. TERMINATION OF EMPLOYMENT.
(a) Termination for Cause. If the Awardee is terminated for cause (as determined by the
Company’s Board of Directors (the “Board”) in its sole discretion) prior to <<date 10 years
from grant date>>, then all of this Award will be automatically forfeited by the Awardee
concurrently with such termination of employment, unless otherwise determined by the Board in its
sole discretion, and the Awardee shall not be deemed vested in any portion of this Award,
regardless of any vesting percentage which might have applied to such Award on account of this
Section 6 for any other reason. If the Awardee is terminated for cause on or after <<date 10
years from grant date>>, upon termination 100% of the award shall vest.
(b) Involuntary Termination or Voluntary Termination. If the Awardee ceases to be employed by
the Company, its parent or a subsidiary because of Awardee’s involuntary termination (other than
for cause as described above) or voluntary termination, before the Awardee is eligible to retire
under a Company sponsored retirement plan, then that portion of the Award which shall be considered
vested on such termination shall be, unless otherwise determined by the Board in its sole
discretion, calculated in accordance with the following schedule.
| Date of Termination | Vesting Percentage | |||
Prior to <<date 3 years from grant date>> |
0 | % | ||
On or after <<date 3 years from grant date>> |
15 | % | ||
On or after <<date 4 years from grant date>> |
20 | % | ||
On or after <<date 5 years from grant date>> |
25 | % | ||
On or after <<date 6 years from grant date>> |
30 | % | ||
On or after <<date 7 years from grant date>> |
35 | % | ||
On or after <<date 8 years from grant date>> |
40 | % | ||
On or after <<date 9 years from grant date>> |
45 | % | ||
On or after <<date 10 years from grant date>> |
100 | % | ||
Any portion of the Award which does not become vested on the date of termination of employment
shall be forfeited as of the date of termination of employment. It shall be the responsibility of
the Awardee to notify the Company of any changes in address. As used in this Agreement, the term
“parent” means any present or future corporation which would be a “parent corporation” of the Company as defined in Section 424(e) of
the Internal Revenue Code, and “subsidiary” means any present or future corporation which would be
a “subsidiary corporation” of the Company as defined in Section 424(f) of the Internal Revenue
Code.
(c) Retirement. If Awardee is eligible to retire under a Company sponsored retirement plan and
terminates employment with the Company, its parent or a subsidiary for any reason other than (A)
termination for cause, as determined by the Company in its sole discretion, or (B) the Awardee’s
death or Total and Permanent Disability (as defined below), then this Award shall become vested on
such termination date in an amount equal to the greater of (i) such vesting as would have been
determined by assuming 30% of the Award vested on <<date 3 years
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from grant date>>, and thereafter an additional 10% of the shares subject to this Award shall
have become vested on each anniversary date of the Award following <<date 3 years from grant
date>> until such time as the Award became 100% vested on the date 10 years after the
anniversary of the original grant of this Award, or (ii) provided that as of <<date 3 years
from grant date>>, the Awardee is still employed by the Company, and had been continuously
employed by the Company since the date this Award was granted, such vesting as would have occurred
had 10% of the Award been determined to be vested for each year of service the Awardee provided to
the Company, or (iii) in such greater amount as may be determined by the Board in its sole
discretion. In no event however shall any portion of this Award be considered vested prior to the
Awardee’s termination date. It shall be the responsibility of the Awardee to notify the Company of
any changes in address.
(d) Disability. If the Awardee shall suffer Total and Permanent Disability while in the
employment of the Company, its parent or a subsidiary, then this Award will become 100% vested on
such date the Awardee terminates employment on account of such Total and Permanent Disability. As
used in this Agreement “Total and Permanent Disability” is defined as the inability to perform the
duties of Awardee’s occupation, or any occupation for which Awardee is qualified or may reasonably
become qualified by education, training or experience, because of an illness or injury of
unavoidable cause for a period of at least six (6) months, provided the inability is determined or
expected to be permanent by a physician selected by the Company.
(e) Death. If the Awardee dies while in the employment of the Company, its parent or a
subsidiary, and the Awardee had not been determined to have suffered Total and Permanent Disability
within ninety (90) days of such Awardee’s death, then this Award will become 100% vested on the
date the Awardee terminates employment on account of death. The Award shall be considered
transferred to the person or persons (the “Heir”) to whom Awardee’s rights under the Award passed
by will or by the applicable laws of descent and distribution, as to all shares of Common Stock
granted under this Award. It shall be the responsibility of the Heir to notify the Company of any
changes in address.
7. TAXES AND WITHHOLDING. Any income taxes, FICA, state disability insurance or other similar
payroll and withholding taxes arising from the receipt or vesting of the Award are the sole
responsibility of the Awardee. The Awardee shall pay to the Company, or make provision satisfactory
to the Company for payment of, any taxes required to be withheld in respect of the Award no later
than the date of the event creating the tax liability. The Company, to the extent permitted by law,
may deduct any such tax obligations from any payment of any kind otherwise due to the Awardee. In
the event that payment to the Company of such tax obligations is made in shares of Common Stock,
such shares shall be valued at fair market value on the applicable date for such purposes and shall
not exceed in amount the minimum statutory tax withholding obligation.
8. LEGALITY. The Company is not required to issue any shares of Common
Stock subject to this Award until all applicable requirements of the Securities and Exchange
Commission (the “SEC”), the California Department of Corporations or other regulatory agencies
having jurisdiction with respect to such issuance, and any exchanges upon which the Common Stock
may be listed, shall have been fully complied with.
If shares of Common Stock subject to this Award are being distributed subject to
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restrictions or if the rules and interpretations of the SEC so require, such shares may be issued
only if the Awardee represents and warrants in writing to the Company that the shares are being
acquired for investment and not with a view to the distribution thereof, and any certificates
issued upon distribution of the shares shall bear appropriate legends setting forth the
restrictions on transfer of such shares. Such legends may not be removed until the Company so
requests, based on the opinion of the Company’s Counsel that the restrictions are no longer
applicable.
9. ADJUSTMENTS IN STOCK. Subject to the provisions of the Plan, if the outstanding shares of
the Company of the class subject to this Award are increased or decreased, or are changed into or
exchanged for a different number or kind of shares or securities as a result of one or more
reorganizations, recapitalizations, stock splits, reverse stock splits, stock dividends and the
like, appropriate adjustments, to be conclusively determined by the Committee, shall be made in the
number and/or type of shares or securities subject to this Award consistent with any and all
changes stipulated above, and any fractional shares resulting from adjustments will be rounded down
to the nearest whole number.
10. NONTRANSFERABILITY OF AWARD. This Award is not transferable otherwise than by will or the
laws of descent and distribution. This Award shall not be otherwise transferred, assigned, pledged,
hypothecated or otherwise disposed of in any way, whether by operation of law or otherwise, and
shall not be subject to execution, attachment or similar process. Upon any attempt to transfer this
Award otherwise than by will or the laws of descent and distribution or to assign, pledge,
hypothecate or otherwise dispose of this Award, or upon the levy of any execution, attachment or
similar process upon this Award, this Award shall immediately terminate and become null and void.
11. TERMINATING TRANSACTIONS. Upon the dissolution or liquidation of the Company prior to the
Award becoming 100% vested this Award shall terminate. Upon the occurrence of a Change in Control
(as defined in the Plan), this Award shall be considered 100% vested as of the date of the Change
in Control, but the amount of any cash distribution of the Award shall be measured using the NASDAQ
closing price per share for the Common Stock of the Company on the trading date immediately
preceding the date of the Change in Control, plus interest at a reasonable rate of interest
(determined in accordance with Treasury Regulation section 31.3121(v)(2)-1(d)(2)(i)(C)) until the
date of distribution.
12. NOTICES. All notices or other communications under this Agreement shall be given in
writing and shall be deemed duly given and received on the third full business day following the
day of the mailing thereof by registered or certified mail, return receipt requested, or when
delivered personally as follows:
(a) If to the Company, at its principal executive offices at the time of the giving of such
notice, or at such other place as the Company shall have designated by notice as herein provided to
each of the Awardees;
(b) If to Awardee, at the address as it appears below Awardee’s signature to this Agreement,
or at such other place as Awardee shall have designated by notice as herein provided to the
Company; and
(c) If to any other holder, at such holder’s last address appearing in the Company’s records.
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It shall be the responsibility of the Awardee to notify the Company of any changes in address.
13. PLAN CONTROLS. The Award and all terms and conditions set forth in this Agreement are
subject in all respects to the terms and conditions of the Plan as may be amended from time to
time, (but no amendment shall adversely affect the Awardee’s rights under this Award) and any rules
and regulations promulgated by the Committee, which shall be controlling. All constructions,
interpretations, rule determinations or other actions taken by the Committee shall be final,
binding and conclusive on all interested parties, including the Company and its subsidiaries and
all former, present and future employees of the Company or its subsidiaries. Capitalized terms that
are not defined herein shall have the definition given to them in the Plan.
14. RIGHT TO CONTINUED EMPLOYMENT. Nothing in the Plan or in this Agreement shall confer upon
the Awardee any right to continue in the employment of the Company or any of its subsidiaries or
interfere in any way with any right of the Company to terminate the Awardee’s employment at any
time.
15. RIGHTS AS A SHAREHOLDER. Nothing in the Plan or in this Agreement shall confer upon the
Awardee any rights as a stockholder with respect to any Award Shares prior to the date of the
issuance of a certificate for such Award Shares to the Awardee.
16. LAWS APPLICABLE TO CONSTRUCTION. This Agreement shall be deemed to be a contract under the
laws of the State of Delaware and for all purposes shall be construed and enforced in accordance
with the internal laws of the State of Delaware without regard to the principles of conflicts of
law.
17. RECEIPT OF PROSPECTUS. The Awardee hereby acknowledges that he or she has received a copy
of the prospectus relating to the Award and the shares covered thereby and the Plan.
18. GENERAL. The Company shall at all times during the term of this Award reserve and keep
available such numbers of shares of Common Stock as will be sufficient to satisfy the requirements
of this Award, shall pay all fees and expenses necessarily incurred by the Company in connection
therewith, and will from time to time use its best efforts to comply with all laws and regulations
which, in the opinion of counsel for the Company, shall be applicable thereto.
19. ANNUAL REPORTS. The Company shall during the term of this Award provide to Awardee an
annual report regarding the Company.
20. MISCELLANEOUS.
(a) This writing constitutes the entire agreement of the parties with respect to the subject
matter hereof and may not be modified or amended except by a written agreement signed by Awardee
and the Company, other than as provided in paragraph (g) below. Anything in this Agreement to the
contrary notwithstanding, any modification or amendment of this Agreement by a written agreement
signed by, or binding upon, Awardee shall be valid and binding upon any and all persons or entities
who may, at any time, have or claim any rights under or pursuant to this Agreement (including all
Awardees hereunder) in respect of the Award
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granted to the Awardee.
(b) No waiver of any breach or default hereunder shall be considered valid unless in writing
and no such waiver shall be deemed a waiver of any subsequent breach or default of the same or
similar nature. Anything in this Agreement to the contrary notwithstanding, any waiver, consent or
other instrument under or pursuant to this Agreement signed by, or binding upon, Awardee shall be
valid and binding upon any and all persons or entities (other than the Company) who may, at any
time, have or claim any rights under or pursuant to this Agreement (including all Awardees
hereunder) in respect of the Award originally granted to Awardee.
(c) Except as otherwise expressly provided herein, this Agreement shall be binding upon and
inure to the benefit of the Company, its successors and assigns, and Awardee and his heirs,
personal representatives, successors and assigns; provided, however, that nothing contained herein
shall be construed as granting Awardee the right to transfer any of his Award except in accordance
with this Agreement.
(d) If any provision of this Agreement shall be invalid or unenforceable, such invalidity or
unenforceability shall attach only to such provision and shall not in any manner affect or render
invalid or unenforceable any other severable provision of this Agreement, and this Agreement shall
be carried out as if any such invalid or unenforceable provision were not contained herein.
(e) The section headings contained herein are for the purposes of convenience only and are not
intended to define or limit the contents of said sections.
(f) Each party hereto shall cooperate and shall take such further action and shall execute and
deliver such further documents as may be reasonably requested by any other party in order to carry
out the provisions and purposes of this Agreement.
(g) This Agreement is intended to comply with Code Section 409A and shall be administered in a
manner consistent with Code Section 409A. Should any provision of this Agreement be found not to
comply with the provisions of Code Section 409A, it shall be modified and given effect, in the sole
discretion of the Committee and without requiring Awardee’s consent (notwithstanding the provisions
of Section 13 or paragraph (a) above), in such manner as the Committee determines to be necessary
or appropriate to comply with, or to effectuate an exemption from, Code Section 409A.
(h) Whenever the pronouns “he” or “his” are used herein they shall also be deemed to mean “she”
or “hers” or “it” or “its” whenever applicable. Words in the singular shall be read and construed
as though in the plural and words in the
plural shall be read and construed as though in the singular in all cases where they would so
apply.
(i) This Agreement may be executed in counterparts, all of which taken together shall be
deemed one original.
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IN WITNESS WHEREOF, the Company has caused this Award to be granted on its behalf by its
President or one of its Vice Presidents and Awardee has hereunto set his hand on the day and year
first above written.
| Xxxx in the Box Inc. | Awardee | |||||
By: |
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