LUBY’S, INC. INCENTIVE STOCK PLAN RESTRICTED STOCK AWARD AGREEMENT
XXXX’X,
INC.
INCENTIVE
STOCK PLAN
THIS
RESTRICTED STOCK AWARD AGREEMENT, dated as of ____________(the “Award
Agreement”), is entered into by and between by XXXX’X,
INC. (the
"Company") and __________(the "Grantee"), upon the following terms and
conditions:
1. Grant.
Company
hereby grants ________shares
of Restricted Stock (the
“Restricted Stock”) as of ____________(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 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 sub-ject to the Plan. The terms and provisions of the Plan
(including any subsequent amend-ments 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 defini-tions 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.
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:
__________________________________________
Xxxxx
Xxxxxxx, Senior V.P and General
Counsel and
Chief Executive Officer
XXXX'X,
INC.
By______________________________________________
Xxxxxxxxxxx
X. Xxxxxx, President and Chief Executive Officer
ACCEPTED:
__________________________________________
Grantee
