EXHIBIT 10.6
AMENDMENT TO
NOTICE OF RESTRICTED STOCK UNIT AWARD
BUFFALO WILD WINGS, INC.
2003 EQUITY INCENTIVE PLAN
This Amendment to a Notice of Restricted Stock Unit Award dated (the
"Notice") by and between Buffalo Wild Wings, Inc., a Minnesota corporation (the
"Company"), and _______________ ("Participant") is effective as of
_______________, 2008 (the "Effective Date").
A. As a key employee or officer of the Company or a Subsidiary of the
Company, Participant previously received a restricted stock unit award (the
"Award") pursuant to the Company's 2003 Equity Incentive Plan (As Amended and
Restated May 15, 2008) (the "Plan"), on the terms and conditions set forth in
the Notice and the Plan.
B. The Company wishes to amend the Notice to specify the effect that a
Change in Control of the Company will have on the Award.
The Notice is hereby amended as of the Effective Date as follows:
1. Subparagraph 2.a. of the Notice is amended to read as follows:
"a. General. The restricted stock units subject to this Award
shall remain forfeitable until the date the risks of forfeiture lapse
with respect to a percentage of such units (the "Vesting Date"). Except
as otherwise provided in subparagraphs 2.b. and 2.c., a Vesting Date
shall be the last day of any fiscal year during the term of the Award
in which the Company achieves its Annual Earnings Target (as defined
herein). If, for any fiscal year ending on a Vesting Date, the Company
achieves 95% of the earnings target as established by the Board of
Directors for such fiscal year (each an "Annual Earnings Target"), the
risks of forfeiture relating to 33-1/3% of the restricted stock units
specified in Paragraph 1 shall lapse. The risks of forfeiture relating
to the remaining restricted stock units shall continue to lapse in this
manner until the risks of forfeiture relating to 100% of the restricted
stock units specified in Paragraph 1 have lapsed, or until the
expiration of this Award."
2. Subparagraph 2.b. of the Notice is amended to read as follows:
"b. Termination of Employment. Except as provided in the
following sentence and in subparagraph 2.c., if the Participant's
employment with the Company and all its Subsidiaries ceases at any time
during the term of the Award, this Award shall also terminate and all
restricted stock units subject to this Award that remain subject to
risks of forfeiture shall be forfeited by Participant. If, however, the
Participant's employment with the Company and all of its Subsidiaries
ceases due to death or Disability (as defined in Paragraph 5), then a
portion of the restricted stock units subject to this Award shall
immediately vest. That portion shall be equal to the number of
restricted stock units subject to this Award that would vest as of the
end of the fiscal year in which Participant's employment ended if the
Company were to achieve the Annual Earnings Target for that fiscal
year. It is understood that if the Participant's employment ceases for
any reason during the period between a Vesting Date and the date shares
of Stock are to be issued in settlement of restricted stock units that
vested as of that most recent Vesting Date (including any delay in
issuance resulting from the application of Section 17(f) of the Plan),
then such Participant shall not forfeit any such restricted stock
units.
3. A new subparagraph 2.c. is added to the Notice to read as follows:
"c. Change in Control. If a Change in Control (as defined in
Section 12(c) of the Plan) occurs and the Participant holds restricted
stock units subject to this Notice at the time, then one of the
following shall occur:
(1) If, pending the Change in Control, the
Administrator determines that this Award will not continue after the
Change in Control or that the successor entity (or its parent) will not
agree to provide for the assumption or replacement of this Award with a
comparable equity-based award covering shares of the successor entity
(or its parent) that would equitably preserve the compensation element
of the Award at the time of the Change in Control, then a portion of
the restricted stock units subject to this Award shall vest and be
settled immediately prior to the consummation of the Change in Control.
That portion shall be equal to the number of restricted stock units
subject to this Award that would vest as of the end of the fiscal year
in which the Change in Control occurred if the Company were to achieve
the Annual Earnings Target for that fiscal year.
(2) If, in connection with the Change in Control,
subparagraph 2.c.(1) is not applicable and this Notice is continued,
assumed or replaced in the manner described in subparagraph 2.c.(1),
and if within one year after that Change in Control the Participant's
employment with the Company and all of its Subsidiaries (or with any
successor entity) is terminated by the employer for reasons other than
Cause (as defined in Paragraph 5), or is terminated by the Participant
for Good Reason (as defined in Paragraph 5), then a portion of the
restricted stock units subject to this Award shall immediately vest.
That portion shall be equal to the number of Units subject to this
Award that would vest as of the end of the fiscal year in which the
Participant's employment ended if the Company were to achieve the
Annual Earnings Target for that fiscal year."
4. Paragraph 3 of the Notice is amended to read as follows:
"3. Issuance of Shares. As soon as practicable after any
Vesting Date, but in no event later than March 15 of the year following
the calendar year in which the Vesting Date occurs, the Company shall
cause to be issued a stock certificate representing that number of
shares of Stock which is equivalent to the percentage of restricted
stock units for which the risks of forfeiture have lapsed, less any
shares withheld for payment of taxes as provided in Paragraph 4(e)
below, and shall deliver such certificate to Participant. Until the
issuance of such shares, Participant shall not be entitled to vote the
shares of Stock represented by such restricted stock units, shall not
be entitled to receive dividends attributable to such shares of Stock,
and shall not have any other rights as a shareholder with respect to
such shares.
2
5. A new Paragraph 5 is added to the Notice to read as follows:
"5. Definitions. The following terms used in this Notice will
have the meanings indicated:
a. "Cause" means what the term is expressly defined to
mean in a then-effective employment agreement between the Participant
and the Company, or in the absence of any such then-effective agreement
or definition, means:
(1) Participant's commission of any act constituting a
felony, or Participant's conviction or guilty or no contest plea to any
criminal misdemeanor or more serious act;
(2) gross misconduct or any act of fraud, disloyalty or
dishonesty by Participant related to or connected with Participant's
employment by the Company or otherwise likely to cause material harm to
the Company or its reputation;
(3) a material violation by Participant of the
Company's policies or codes of conduct; or
(4) the willful or material breach by Participant of
any agreement between the Participant and the Company.
b. "Disability" means what the term is expressly defined
to mean in a then-effective employment agreement between the
Participant and the Company, or in the absence of any such
then-effective agreement or definition, means any medically
determinable physical or mental impairment that can be expected to
result in death or can be expected to last for a continuous period of
not less than six months, where such impairment causes the Participant
to be unable to perform the duties of Participant's position of
employment or any substantially similar position of employment.
c. "Good Reason" means what the term is expressly defined
to mean in a then-effective employment agreement between the
Participant and the Company, or in the absence of any such
then-effective agreement or definition, means any of the following
conditions arising without the consent of Participant, provided that
Participant has first given written notice to the Company of the
existence of the condition within 90 days of its first occurrence, and
the Company has failed to remedy the condition within 30 days
thereafter:
(1) a material diminution in the Participant's base
salary;
(2) a material diminution in the Participant's
authority, duties, or responsibilities;
(3) relocation of Participant's principal office more
than 50 miles from its current location; or
3
(4) any other action or inaction that constitutes a
material breach by the Company of any terms or conditions of any
agreement between the Company and the participant, which breach has not
been caused by Participant."
BUFFALO WILD WINGS, INC.
By:
-----------------------------------------------
Its:
------------------------------------------
4
