JACK IN THE BOX INC. RESTRICTED STOCK AWARD UNDER THE 2004 STOCK INCENTIVE PLAN
Exhibit 10.16.1
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, 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 AWARD. The Committee hereby grants «SHARES» («NUMBER_OF_SHARES») shares
of common stock of the Company, par value $0.01 per share (the “Award”) to the Awardee. As of the
date of this Award, the Awardee will acquire and the Company will issue, subject to the terms and
conditions set forth herein, the number of shares of Common Stock of the Company, par value $0.01
per share (“Common Stock”) provided under this Award. As a condition to the issuance of the Award,
the Awardee shall execute and deliver to the Company along with this executed Agreement (a) the
Joint Escrow Instructions in the form attached to this Agreement and (b) the Assignment Separate
from Certificate duly endorsed (with date and number of shares blank) in the form attached to this
Agreement.
2. VESTING. Notwithstanding any other provision of the Plan to the contrary, and except as
may be provided in the sole and absolute discretion of the Company, or as provided in Section 13
(Terminating Transactions) of this Agreement, no shares of Common Stock issued under 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 6 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. AWARD AS COMPENSATION. No amount attributable to this Award shall be considered as
compensation for the purposes of any other Company sponsored plans.
5. CERTIFICATE REGISTRATION. The certificate for 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 of a duly authorized transfer agent of the Company).
6. 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 the shares of Common Stock underlying 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. If the Awardee is terminated for cause
prior to <<date 10 years from grant date>>, and unless otherwise determined by the
Board in its sole discretion, 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.
(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 is not vested on the date of termination of employment, or
determined to be vested by the Board in its sole discretion, 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 ceases to be employed by 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
Awardees 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 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 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 a physical or
mental condition that results in a total and
permanent disability to such extent that the person is eligible for disability benefits under the
federal Social Security Act.”
(e) Death. If 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. COMPANY REACQUISITION RIGHT. In the event that (a) the Awardee’s employment terminates for
any reason or no reason, with or without cause, or (b) the Awardee, the Awardee’s legal
representative, or other holder of the shares of Common Stock subject to this Award, attempts to
sell, exchange, transfer, pledge, or otherwise dispose of any portion of this Award prior to its
distribution from the escrow established in accordance with Section 8 of this Agreement, the
Company shall automatically reacquire such shares underlying the applicable portion of this Award,
and the Awardee shall not be entitled to any payment therefore (the “Company Reacquisition Right”).
8. ESCROW. To ensure that shares of Common Stock subject to the Company Reacquisition Right
will be available for reacquisition, the Awardee agrees to deliver to and deposit with an escrow
agent designated by the Company the certificate evidencing the shares of Common Stock subject to
the Award, together with an Assignment Separate from Certificate with respect to such certificate
duly endorsed in the form attached to this Agreement, to be held by the agent under the terms and
conditions of the Joint Escrow Instructions in the form attached to this Agreement (the “Escrow”).
The Company shall bear the expenses of the Escrow.
As soon as practicable after the expiration of the Company’s Reacquisition Right with respect
to any shares underlying this Award, the Company shall give to the escrow agent a written notice
directing the escrow agent to deliver such shares of Common Stock to the Awardee. As soon as
practicable after receipt of such notice, the escrow agent shall deliver to the Awardee the shares
of Common Stock specified in such notice, and the Escrow shall terminate with respect to such
shares.
9. TAXES AND WITHHOLDING. At the time this Agreement is executed, or at any time as requested
by the Company, the Awardee hereby authorizes withholding from any amounts payable to the Awardee,
including specifically any payroll check, and otherwise agrees to make adequate provision for, any
sums required to satisfy the income taxes, FICA, state disability insurance or other similar
payroll and withholding taxes arising from the receipt of shares of Common Stock subject to this
Award, including without limitation, obligations arising upon the (a) transfer of shares of Common
Stock to the Awardee, (b) the vesting of any shares subject to this Award, or (c) the filing of an
election to recognize tax liability. The Company shall have no obligation to deliver the shares or
to release any shares from Escrow until the tax withholding obligations of the Company have been
satisfied by the Awardee.
If, the Company determines that it is required to withhold taxes on account of any present or
future tax required as a result of this Award, the Company may also require the Awardee to pay the
amount of such tax by a cashier’s or certified bank check, or, at the sole discretion of the
Company, by either (a) personal check, payable to the order of Xxxx in the Box Inc., in advance of
and as a condition to the delivery of the shares of Common Stock out of the Escrow, or (b) to
deduct from the shares of Common Stock to be distributed from the Escrow that number of whole
shares of Common Stock having a fair market value equal to all or any part of the federal, state,
local and foreign taxes, if any, required by law to be withheld by the Company with respect to such
distribution.
10. 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 the shares of Common Stock subject to this Award are being distributed subject to
restrictions or if the rules and interpretations of the SEC so require, such shares may be issued
only if 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.
11. 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 share.
12. 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.
13. TERMINATING TRANSACTIONS. Upon the dissolution or liquidation of the
Company prior to the shares of Common Stock subject to this Award becoming 100% vested this Award
shall terminate. Upon the occurrence of any (i) merger or consolidation in which the Company shall
not be the surviving entity (or survives only as a subsidiary of another entity whose shareholders
did not own all or substantially all of the Company’s Common Stock immediately prior to such
transaction), (ii) sale of all or substantially all of the Company’s assets to any other person or
entity (other than a wholly-owned subsidiary), or (iii) the acquisition of beneficial ownership or
control of (including, without limitation, power to vote) more than 50% of the outstanding shares
of Common Stock by any person or entity (including a “group” as defined by or under Section
13(d)(3) of the Securities Exchange Act of 1934, as amended (collectively a “Terminating
Transaction”), this Award shall terminate unless provision be made in writing in connection with
such transaction for the assumption of the Award or the substitution for the Award of a new Award
covering the shares of Common Stock of a successor employer corporation, or a parent or subsidiary
thereof or of the Company, with appropriate adjustments as to the number and kind of shares and
prices, in which event this Award shall continue in the manner and under the terms so provided. If
this Award shall terminate pursuant to the foregoing sentences, the shares subject to the Award
shall be considered 100% vested at such time immediately prior to the consummation of the
Terminating Transaction as the Company shall designate.
14. 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.
15. 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.
16. 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.
17. RIGHTS AS A SHAREHOLDER. The Awardee shall have no rights as a stockholder with respect
to the shares of Common Stock subject to the Award until the date of the issuance of a certificate
for such shares of Common Stock (as evidenced by the appropriate entry on the books of the Company
or of a duly authorized transfer agent of the Company). No adjustment shall be made for dividends,
distributions or other rights for which the record date is prior to the date such certificate is
issued, except as provided in Section 11. Subject to the provisions of this Agreement, the Awardee
shall be entitled to all rights and privileges of a stockholder of the Company with respect to
shares of Common Stock deposited in the Escrow pursuant to Section 8.
18. ARBITRATION. Any dispute or claim concerning any Award granted (or not granted) pursuant
to the Plan and this Agreement and any other disputes or claims relating to or arising out of the
Plan and this Agreement shall be fully, finally and exclusively resolved by binding arbitration
conducted in San Diego, California, by either (i) the American Arbitration Association in
accordance with its rules and procedures, or (ii) by any party mutually agreed upon by the
Committee and the claimant. By accepting an Award, the Awardee and the Company waive their
respective rights to have any disputes or claims tried by a judge or jury.
19. 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.
20. 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.
21. 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.
22. ANNUAL REPORTS. The Company shall during the term of this Award provide to Awardee an
annual report regarding the Company.
23. 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. 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 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) 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.
(h) This Agreement may be executed in counterparts, all of which taken together shall be
deemed one original.
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: |
||||||||
| <<Name>> | Signature | |||||||
