RUBY TUESDAY, INC. RESTRICTED STOCK AWARD
RUBY TUESDAY, INC.
This RESTRICTED STOCK AWARD (the “Award”) is made and entered into as of the __ day of _____, 2009 by and between Ruby Tuesday, Inc. (the “Company”), a Georgia corporation, and ______________________ (the “Employee”).
Upon and subject to the Additional Terms and Conditions attached hereto and incorporated herein by reference as part of this Award, the Company hereby awards as of the Grant Date to the Employee the Restricted Shares described below pursuant to the Ruby Tuesday, Inc. 2003 Stock Incentive Plan (the “Plan”) in consideration of the Employee’s services to the Company (the “Restricted Stock Award”).
X. Xxxxx Date: ___________.
B. Restricted Shares: _____ shares of the Company’s common stock (“Common Stock”), $.01 par value per share.
C. Vesting: The Restricted Shares shall become vested, as and to the extent indicated below, only if and to the extent the Performance Condition and Service Condition, each as specified below, are satisfied.
(1) Performance Condition. The number of Restricted Shares that become Net Restricted Shares, as determined below, shall be equal to the sum (not to exceed the number of Restricted Shares specified in Paragraph B above (as that number may be adjusted pursuant to Section 6 of the Additional Term and Conditions)) of the results for the “Debt to EBITDAR Performance Condition” determined under this Subparagraph C.(1). The Debt to EBITDAR Performance Condition is satisfied to the extent the "adjusted total debt to EBITDAR" ratio as defined in the Amended and Restated Revolving Credit Agreement dated as of February 28, 2007, as amended by First Amendment dated November 30, 2007 and further amended by Second Amendment dated May 21, 2008, and the Amended and Restated Note Purchase Agreement dated May 21, 2008, and as finally reported by the Company to its lenders for Fiscal Year 2010 is:
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Ratio |
Performance Percentage |
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Less than or equal to _____ |
100% |
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Greater than _____ |
0% |
The percentage of Restricted Shares becoming Net Restricted Shares (the “Performance Percentage”) determined by the actual performance results shall be multiplied by the number of Restricted Shares specified in Paragraph B above (as that number may be adjusted pursuant to Section 6 of the Additional Term and Conditions) to determine the number of Net Restricted Shares.
The Restricted Shares that do not become Net Restricted Shares shall be forfeited as of the date of the 2010 meeting of the Committee (the “Performance Determination Meeting”) in which the Committee determines the extent to which the performance actually realized, as measured against the Performance Condition, results in fewer than all (or none) of the Restricted Shares becoming Net Restricted Shares based upon the performance schedule set forth above. If no Restricted Shares become Net Restricted Shares by reason of such Committee determination, all Restricted
Shares shall be forfeited even if the Service Condition has been satisfied, or deemed satisfied, in whole or in part, prior to the Performance Determination Meeting.
(2) Service Condition. Net Restricted Shares become Vested Shares if and to the extent the Service Condition is satisfied. The Service Condition is satisfied only if the Employee provides Continuous Service to the Company and/or any affiliate for the period beginning with the Grant Date through the date or dates described in the following Vesting Schedule:
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Continuous Service Date |
Percentage of Net Restricted Shares which are Vested Shares |
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Prior to __________, 2010 |
0% |
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__________, 2010 through ________, 2011 |
331/3% |
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________, 2011 through ________, 2012 |
662/3% |
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________, 2012 and after |
100% |
The Employee shall be determined to have provided “Continuous Service” through a date specified in the Vesting Schedule above if the Employee continues in the employ of the Company and/or any affiliate without experiencing a Termination of Employment, regardless of the reason.
Notwithstanding the foregoing, the Service Condition will be deemed satisfied as to all of the Net Restricted Shares if the Employee provides Continuous Service to the Company and/or any affiliate following the Grant Date through the date of any of the earlier events listed below:
(a) (i) In the event of a Termination of Employment due to Disability, Divestiture or death, (ii) upon attainment of age 65 or satisfaction of the Rule of 90 [if eligible] under the Ruby Tuesday, Inc. Executive Supplemental Pension Plan, or (iii) in the event of a Termination of Employment by the Company or an affiliate without Cause, all of the Net Restricted Shares shall be deemed to have satisfied the Service Condition.
(b) Upon the Employee’s attainment of age 55, a portion of the Net Restricted Shares shall be deemed to have satisfied the Service Condition, such portion being equal to the total number of Net Restricted Shares multiplied by the number of the Employee’s completed months of employment with the Company or an affiliate from the Grant Date through age 55 with the product divided by thirty-six (36), shall be deemed to have satisfied the Service Condition.
(c) In the event of a Change in Control, all of the Net Restricted Shares shall be deemed to have satisfied the Service Condition immediately prior to the effective date of the Change in Control.
The Net Restricted Shares which have satisfied the Performance Condition and have satisfied (or are deemed to have satisfied) the Service Condition are herein referred to as the “Vested Shares.” Any portion of the Restricted Shares or Net Restricted Shares which have not become Vested Shares in accordance with this Paragraph C shall be forfeited.
IN WITNESS WHEREOF, the Company and Employee have signed this Award as of the Grant Date set forth above.
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RUBY TUESDAY, INC. |
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By: |
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Employee |
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Title: |
ADDITIONAL TERMS AND CONDITIONS OF
RUBY TUESDAY, INC.
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1. |
Condition to Delivery of Restricted Shares. |
(a) Employee must deliver to the Company, within two (2) business days after the earlier of (i) the date (the “Vesting Date”) on which any Net Restricted Shares become Vested Shares, or (ii) the date the Employee makes an election pursuant to Section 83(b) of the Internal Revenue Code as to all or any portion of the Net Restricted Shares, either cash or a certified check payable to the Company in the amount of all tax withholding obligations (whether federal, state or local) imposed on the Company by reason of the vesting of the Restricted Shares, or the making of an election pursuant to Section 83(b) of the Internal Revenue Code, as applicable, except as provided in Section 1(b).
(b) If the Employee does not make an election pursuant to Section 83(b) of the Internal Revenue Code, in lieu of paying the withholding tax obligations in cash or by certified check as required by Section 1(a), Employee may elect (the “Withholding Election”) to have the actual number of shares of Common Stock that become Vested Shares reduced by the smallest number of whole shares of Common Stock which, when multiplied by the Fair Market Value of the Common Stock determined by the closing price for the Common Stock on the last business day immediately preceding the applicable Vesting Date, is sufficient to satisfy the amount of the tax withholding obligations imposed on the Company by reason of the vesting of the Net Restricted Shares on the applicable Vesting Date. Employee may make a Withholding Election only if all of the following conditions are met:
(i) the Withholding Election must be made on or prior to the Vesting Date by executing and delivering to the Company a properly completed Notice of Withholding Election, in substantially the form of Exhibit A attached hereto; and
(ii) any Withholding Election made will be irrevocable; however, the Committee may, in its sole discretion, disapprove and give no effect to any Withholding Election.
(c) Unless and until the Employee provides for the payment of the tax withholding obligations in accordance with the provisions of this Section 1, the Company shall have no obligation to deliver any of the Vested Shares and may take any other actions necessary to satisfy such obligations, including withholding of appropriate sums from other amounts payable to the Employee. At the request of the Employee, the Committee may authorize the Company to participate in such arrangements between the Employee and a broker, dealer or other “creditor” (as defined by Regulation T issued by the Board of Governors of the Federal Reserve System) acting on behalf of the Employee for the receipt from such broker, dealer or other “creditor” of cash by the Company in an amount necessary to satisfy the Employee’s tax withholding obligations in exchange for delivery of a number of Vested Shares directly to the broker, dealer or other “creditor” having a value equal to the cash delivered.
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2. |
Issuance of Restricted Shares. |
(a) The Company shall issue the Restricted Shares as of the Grant Date in either manner described below, as determined by the Committee in its sole discretion:
(i) by the issuance of share certificate(s) evidencing Restricted Shares to the Secretary of the Company or such other agent of the Company as may be designated by the Committee or the Secretary (the “Share Custodian”); or
(ii) by documenting the issuance in uncertificated or book entry form on the Company’s stock records.
Evidence of the Restricted Shares either in the form of share certificate(s) or book entry, as the case may be, shall be held by the Company or Share Custodian, as applicable, until the Restricted Shares become Vested Shares in accordance with the Vesting Schedule.
(b) When the Net Restricted Shares become Vested Shares, the Company or the Share Custodian, as the case may be, shall deliver the Vested Shares to the Employee or, at the Company’s election, to a broker designated by the Company (the “Designated Broker”) by either physical delivery of the share certificate(s) or book entry transfer, as applicable, for the benefit of an account established in the name of the Employee, in either case, after, to the extent applicable, payment by the Employee of the tax withholding obligations pursuant to Section 1(a) and/or reduced by any Vested Shares withheld and returned to the Company pursuant to Section 1(b) above or delivered to a broker, dealer or other “creditor” as contemplated by Section 1(c) above (such reduced number of Vested Shares are referred to in this Section 2(b) as the “Net Vested Shares”). If the number of Vested Shares includes a fraction of a share, neither the Company nor the Share Custodian shall be required to deliver the fractional share to the Employee, and the number of Vested Shares shall be rounded down to the next nearest whole number. At any time after receipt by the Designated Broker, the Employee may require that the Designated Broker deliver the Net Vested Shares to the Employee pursuant to such arrangements or agreements as may exist between the Designated Broker and the Employee.
(c) In the event that the Employee forfeits any of the Restricted Shares, the Company shall cancel the issuance on its stock records and, if applicable, the Share Custodian shall promptly deliver the share certificate(s) representing the forfeited shares to the Company.
(d) Employee hereby irrevocably appoints the Share Custodian, and any successor thereto, as the true and lawful attorney-in-fact of Employee with full power and authority to execute any stock transfer power or other instrument necessary to transfer any Restricted Shares to the Company in accordance with this Award, in the name, place, and stead of the Employee. The term of such appointment shall commence on the Grant Date of this Award and shall continue until the last of the Restricted Shares are delivered to the Employee as Net Vested Shares or are returned to the Company as forfeited Restricted Shares or as Vested Shares withheld and returned to the Company pursuant to Section 1(b), as provided by the applicable terms of this Award.
(e) Unless and until the Restricted Shares are forfeited, the Employee shall be entitled to all rights respecting the Restricted Shares applicable to holders of shares of Common Stock generally, including, without limitation, the right to vote such shares and to receive dividends or other distributions thereon as provided by Section 3, except as expressly provided in this Award.
(f) In the event the number of shares of Common Stock is increased or reduced as a result of a subdivision or combination of shares of Common Stock or the payment of a stock dividend or any other increase or decrease in the number of shares of Common Stock or other
transaction such as a merger, reorganization or other change in the capital structure of the Company, the Employee agrees that any certificate representing shares of Common Stock or other securities of the Company issued as a result of any of the foregoing shall be delivered to the Share Custodian or recorded in book entry form, as applicable, and shall be subject to all of the provisions of this Award as if initially granted hereunder.
3. Dividends. The Employee shall be entitled to dividends or other distributions paid or made on Restricted Shares but only as and when the Restricted Shares to which the dividends or other distributions are attributable become Vested Shares. Dividends paid on Restricted Shares will be held by the Company and transferred to the Employee, without interest, on such date as the Restricted Shares become Vested Shares. Dividends or other distributions paid on Restricted Shares that are forfeited shall be retained by the Company.
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4. |
Restrictions on Transfer of Restricted Shares. |
(a) General Restrictions. Except as provided by this Award, the Employee shall not have the right to make or permit to exist any transfer or hypothecation, whether outright or as security, with or without consideration, voluntary or involuntary, of all or any part of any right, title or interest in or to any Restricted Shares. Any such disposition not made in accordance with this Award shall be deemed null and void. The Company will not recognize, or have the duty to recognize, any disposition not made in accordance with the Plan and this Award, and any Restricted Shares so transferred will continue to be bound by the Plan and this Award. The Employee (and any subsequent holder of Restricted Shares) may not sell, pledge or otherwise directly or indirectly transfer (whether with or without consideration and whether voluntarily or involuntarily or by operation of law) any interest in or any beneficial interest in any Restricted Shares except pursuant to the provisions of this Award. Any sale, pledge or other transfer (or any attempt to effect the same) of any Restricted Shares in violation of any provision of the Plan or this Award shall be void, and the Company shall not record such transfer, assignment, pledge or other disposition on its books or treat any purported transferee or pledgee of such Restricted Shares as the owner or pledgee of such Restricted Shares for any purpose.
(b) Certain Permitted Transfers. The restrictions contained in this Section 4 will not apply with respect to transfers of the Restricted Shares pursuant to applicable laws of descent and distribution; provided that the restrictions contained in this Section 4 will continue to be applicable to the Restricted Shares after any such transfer; and provided further that the transferee(s) of such Restricted Shares must agree in writing to be bound by the provisions of the Plan and this Award.
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5. |
Additional Restrictions on Transfer. |
(a) In addition to any legends required under applicable securities laws, the certificates representing the Restricted Shares shall be endorsed with the following legend and the Employee shall not make any transfer of the Restricted Shares without first complying with the restrictions on transfer described in such legend:
TRANSFER IS RESTRICTED
THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER AND FORFEITURE PROVISIONS WHICH ALSO APPLY TO THE TRANSFEREE AS SET FORTH IN A RESTRICTED STOCK AWARD, DATED _______, A COPY OF WHICH IS AVAILABLE FROM THE COMPANY.
(b) Opinion of Counsel. No holder of Restricted Shares may sell, transfer, assign, pledge or otherwise dispose of (whether with or without consideration and whether voluntarily or involuntarily or by operation of law) any interest in or any beneficial interest in any Restricted Shares, except (i) pursuant to an effective registration statement under the Securities Act of 1933 (the “Securities Act”) or (ii) in a transaction that fully complies with Rule 144, without first delivering to the Company an opinion of counsel (reasonably acceptable in form and substance to the Company) that neither registration nor qualification under the Securities Act and applicable state securities laws is required in connection with such transfer.
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6. |
Change in Capitalization. |
(a) The number and kind of Restricted Shares shall be proportionately adjusted for any increase or decrease in the number of issued shares of Common Stock resulting from a subdivision or combination of shares or the payment of a stock dividend in shares of Common Stock to holders of outstanding shares of Common Stock or any other increase or decrease in the number of shares of Common Stock outstanding effected without receipt of consideration by the Company. No fractional shares shall be issued in making such adjustment. All adjustments made by the Committee under this Section shall be final, binding, and conclusive.
(b) In the event of a merger, consolidation, extraordinary dividend (including a spin-off), reorganization, recapitalization, sale of substantially all of the Company’s assets, other change in the capital structure of the Company, tender offer for shares of Common Stock or a Change in Control, an appropriate adjustment may be made with respect to the Restricted Shares such that other securities, cash or other property may be substituted for the Common Stock held by Share Custodian or recorded in book entry form pursuant to this Award.
(c) The existence of the Plan and the Restricted Stock Award shall not affect the right or power of the Company to make or authorize any adjustment, reclassification, reorganization or other change in its capital or business structure, any merger or consolidation of the Company, any issue of debt or equity securities having preferences or priorities as to the Common Stock or the rights thereof, the dissolution or liquidation of the Company, any sale or transfer of all or part of its business or assets, or any other corporate act or proceeding.
7. Governing Laws. This Award shall be construed, administered and enforced according to the laws of the State of Georgia; provided, however, no Restricted Shares shall be issued except, in the reasonable judgment of the Committee, in compliance with exemptions under applicable state securities laws of the state in which the Employee resides, and/or any other applicable securities laws.
8. Successors. This Award shall be binding upon and inure to the benefit of the heirs, legal representatives, successors, and permitted assigns of the parties.
9. Notice. Except as otherwise specified herein, all notices and other communications under this Award shall be in writing and shall be deemed to have been given if personally delivered or if
sent by registered or certified United States mail, return receipt requested, postage prepaid, addressed to the proposed recipient at the last known address of the recipient. Any party may designate any other address to which notices shall be sent by giving notice of the address to the other parties in the same manner as provided herein. Notices sent to the Company shall be addressed to the attention of the Secretary of the Company.
10. Severability. In the event that any one or more of the provisions or portion thereof contained in this Award shall for any reason be held to be invalid, illegal, or unenforceable in any respect, the same shall not invalidate or otherwise affect any other provisions of this Award, and this Award shall be construed as if the invalid, illegal or unenforceable provision or portion thereof had never been contained herein.
11. Entire Agreement. Subject to the terms and conditions of the Plan, this Award expresses the entire understanding and agreement of the parties with respect to the subject matter. This Award may be executed in two or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.
12. Headings and Capitalized Terms. Paragraph headings used herein are for convenience of reference only and shall not be considered in construing this Award. Capitalized terms used, but not defined, in this Award shall be given the meaning ascribed to them in the Plan
13. Specific Performance. In the event of any actual or threatened default in, or breach of, any of the terms, conditions and provisions of this Award, the party or parties who are thereby aggrieved shall have the right to specific performance and injunction in addition to any and all other rights and remedies at law or in equity, and all such rights and remedies shall be cumulative.
14. No Right to Continued Employment. Neither the establishment of the Plan nor the Restricted Stock Award made pursuant to this Award shall be construed as giving Employee the right to any continued service relationship with the Company or any affiliate of the Company.
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15. |
Special Definitions. |
(a) For purposes of this Award, the term “Cause” has the same meaning as provided in the employment agreement between the Employee and the Company or, if applicable, any affiliate of the Company on the date of Termination of Employment, or if no such definition or employment agreement exists, “Cause” means conduct amounting to (i) fraud or dishonesty in the performance of the duties of Employee’s service with the Company or its affiliates, (ii) Employee’s willful misconduct, refusal to follow the reasonable directions of his/her supervisors, or knowing violation of law, rules or regulations (including misdemeanors relating to public intoxication, driving under the influence, use or possession of controlled substances or relating to conduct of a similarly nature), (iii) acts of moral turpitude or personal conduct in violation of Company’s Code of Business Conduct and Ethics, (iv) absence from work without reasonable excuse, (v) intoxication with alcohol or drugs while on Company’s or affiliates’ premises, (vi) a conviction or plea of guilty or nolo contendere to a crime involving dishonesty, or (vii) a breach or violation of the terms of any agreement to which Employee and the Company (or any affiliate) are party.
(b) For purposes of this Award, the term “Divestiture” means the sale by the Company, or an affiliate of the Company, of previously Company (or affiliate) operated units or businesses to an independent company, where the Employee was employed at, or supervised, such units or businesses and, upon the completion of such transaction, the Employee’s employment with the Company (or affiliate) ceases and Employee immediately becomes an employee or owner of the purchaser of such units or businesses.
EXHIBIT A
NOTICE OF WITHHOLDING ELECTION
RUBY TUESDAY, INC.
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TO: |
Ruby Tuesday, Inc. |
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FROM: |
SSN: |
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RE: |
Withholding Election |
This election relates to the Restricted Stock Award identified in Paragraph 3 below. I hereby certify that:
(1) My correct name and social security number and my current address are set forth at the end of this document.
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(2) |
I am (check one, whichever is applicable). |
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the original recipient of the Restricted Stock Award. |
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the legal representative of the estate of the original recipient of the Restricted Stock Award. |
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a legatee of the original recipient of the Restricted Stock Award. |
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the legal guardian of the original recipient of the Restricted Stock Award. |
(3) The Restricted Stock Award pursuant to which this election relates was issued under the Ruby Tuesday, Inc. 2003 Stock Incentive Plan (the “Plan”) in the name of _________________ for a total of ______________ shares of Common Stock. This election relates to ______ shares of Common Stock to be delivered upon the vesting of a portion of the Net Restricted Shares, provided that the numbers set forth above shall be deemed changed as appropriate to reflect stock splits and other adjustments contemplated by the applicable Plan provisions.
(4) I hereby elect to have certain of the Vested Shares withheld and returned to the Company, rather than delivered to me, for the purpose of having the value of such shares applied to pay minimum required federal, state and local, if any, tax withholding obligations arising from the vesting event.
The fair market value of the Vested Shares to be withheld and returned to the Company shall be equal to the minimum statutory tax withholding requirements under federal, state and local law in connection with the vesting event, reduced by the amount of any cash or certified check payment tendered by me to the Company in partial payment of such tax withholding obligations.
(5) I understand that this Withholding Election is made prior to the Vesting Date and is otherwise timely made pursuant to Section 1 of the Restricted Stock Award and Section 5.1 of the Plan.
(6) I further understand that, if this Withholding Election is not disapproved by the Committee, the Company shall withhold from the Vested Shares a whole number of shares of Common Stock having the value specified in Paragraph 4 above.
(7) The Plan has been made available to me by the Company, I have read and understand the Plan and the Restricted Stock Award and I have no reason to believe that any of the conditions therein to the making of this Withholding Election have not been met. Capitalized terms used in this Notice of Withholding Election without definition shall have the meanings given to them in the Plan.
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Dated: |
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Signature: |
Name (Printed)
Street Address
City, State, Zip Code
Social Security Number
