TIME-BASED CONDITIONS) UNDER THE 2007 EQUITY INCENTIVE PLAN OF BENIHANA INC.
EXHIBIT
4.03
(TIME-BASED
CONDITIONS)
UNDER THE
2007 EQUITY INCENTIVE PLAN
OF
BENIHANA INC.
In
consideration of services to be rendered by you (the “Grantee”)
to Benihana Inc., a
Delaware corporation (the “Company”)
or its subsidiary, you have been awarded a stock grant (the “Grant”)
under the Company’s 2007 Equity Incentive Plan (the “2007
Plan”), which is incorporated herein by reference, covering a number of
shares of Class A Common Stock of the Company, par value $.10 per share (the
“Shares”)
as listed on Exhibit
A (the “Information
Page”) subject to the terms and conditions of this Agreement and the 2007
Plan.
1. STOCK GRANT TERMS AND STOCK
CERTIFICATES. The date of the Grant, the total number of
Shares subject to the Grant, the Vesting Dates, the number of Shares subject to
the Grant which vest on each Vesting Date (as described in Paragraph 2 hereof)
and the per Share consideration for the Grant, if any, are identified on the
Information Page. The stock certificate(s), if any, evidencing the Shares
underlying the Grant shall be registered on the Company’s books in the name of
the Grantee as of the date of Grant. Physical possession or custody
of any such stock certificate(s) shall be retained by the Company or by a bank
or other institution designated by the Company, until such Shares are vested or
forfeited in accordance with the terms of this Agreement. While in
its possession, the Company reserves the right to place a legend on the stock
certificate(s) restricting the transferability of such certificate(s) and
referring to the terms and conditions (including, without limitation,
forfeiture) relating to the Shares represented by the stock
certificate(s). If the Shares subject to the Grant have been
evidenced by stock certificate(s) pursuant to this Paragraph, then as soon as
practicable after the end of the applicable Restricted Period (as defined in
Paragraph 2 hereof), the Company shall cause unlegended stock certificate(s)
covering the requisite number of vested Shares registered on the Company’s books
in the name of the Grantee (or his permitted transferee pursuant to Paragraph 5
hereof), to be delivered to such person and will cancel the legended stock
certificates. Shares issued hereunder shall be fully paid and
non-assessable.
2. VESTING. A number
of Shares underlying the Grant will become vested and non-forfeitable on each
vesting date as listed on the Information Page (the “Vesting
Date”), provided that on the applicable Vesting Date the Grantee
continues to be employed by the Company (the “Condition”). Promptly following each
Vesting Date, the Stock Plan Administrator will deliver to the Grantee
(or his permitted transferee pursuant to Paragraph 5 hereof) the number of
Shares with respect to which the Condition was satisfied on such Vesting Date,
subject to any amounts that are withheld pursuant to Paragraph
9. With respect to any Share underlying the Grant, the period of time
commencing on the date of the Grant and ending on the applicable Vesting Date
shall be referred to herein as the “Restricted
Period”.
3. FORFEITURE OF UNVESTED
SHARES UPON TERMINATION
OF EMPLOYMENT. Except with respect to Shares which have vested
pursuant to Paragraph 2 on or before the employment termination date, in the
event that the Grantee ceases as an employee of the Company for any reason
during the Restricted Period (including, without limitation, due to death or
disability), all Shares subject to the Grant shall be forfeited by the Grantee
as of the date that such employment terminates. Any Shares covered by
the Grant that are forfeited by the Grantee shall be transferred to the Company
and have the status of treasury shares. The Committee in its
discretion may waive in whole or in part any time-based Conditions which have
not been satisfied except in connection with an employment termination for gross
misconduct.
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4. EMPLOYMENT. In consideration
of the awarding of the Grant and regardless of whether the Conditions shall be
satisfied, the Grantee will fulfill all the duties and obligations of his or her
employment by the Company or its subsidiary. Nothing in this
Agreement shall confer upon the Grantee any right to similar stock grants in
future years or any right to be continued in the employ of the Company or its
subsidiaries or shall interfere in any way with the right of the Company or any
such subsidiary to terminate or otherwise modify the terms of the Grantee's
employment.
5. RESTRICTIONS ON
TRANSFER. The Shares subject to the Grant shall not be
transferable during the Restricted Period except as the Committee may permit to
the extent permitted under the 2007 Plan, on a general or specific basis,
subject to such conditions and limitations as may be determined by the
Committee. More particularly (but without limiting the generality of
the foregoing), during the Restricted Period the Shares may not be assigned,
transferred (except as provided above), pledged or hypothecated in any way,
shall not be assignable by operation of law and shall not be subject to
execution, attachment, pledge, hypothecation or other disposition contrary to
the provisions hereof, and the levy of any execution, attachment or similar
process upon the Shares shall be null and void and without effect.
6. EFFECT ON OTHER
BENEFITS. In no event shall the value of the Shares covered by
the Grant awarded under this Agreement at any time be included as compensation
or earnings for purposes of determining any other compensation, retirement
benefit or other benefit offered to employees of the Company or its subsidiaries
under any benefit plan of the Company unless otherwise specifically provided for
in such benefit plan.
7. LEGAL
COMPLIANCE. The Company shall pay all original issue and
transfer taxes with respect to the issuance of such Shares and all other 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.
8. REPRESENTATIONS, WARRANTIES AND
AGREEMENTS OF GRANTEE. The Grantee hereby represents and
warrants to the Company that he or she: (i) has the legal right and capacity to
enter into this Agreement and fully understands the terms and conditions of this
Agreement and (ii) is acquiring the Shares for investment purposes only and not
with a view to, or in connection with, the public distribution thereof in
violation of the Securities Act of 1933, as now in force or hereafter amended
(the “Securities
Act”). The Grantee agrees he or she will not transfer the
Shares except in compliance with any rules and regulations in force at the time
of such transfer under the Securities Act, or any other applicable law, and a
legend to this effect may be placed upon the certificate representing the
Shares.
9. TAXES. The Grantee
must pay or cause to be paid to the Company in cash upon demand any and all
amounts due for the purpose of satisfying the Company’s liability, if any, to
withhold federal, state or local income tax or employment tax (plus interest or
penalties thereon, if any, caused by a delay in making such payment) incurred by
reason of the receipt of the Grant (including any such taxes incurred as a
result of the Grantee’s election pursuant to Paragraph 10 hereof) or by reason
of the vesting of the Shares in accordance with the terms of this
Agreement. By accepting this Grant, the Grantee consents and directs
that the Stock Plan Administrator may, but is not obligated to, withhold the
number of Shares having an aggregate fair market value as of the date preceding
the withholding sufficient to satisfy the Grantee’s obligations hereunder and to
deliver such Shares to the Company. In addition, the Company shall,
to the extent permitted by law, have the right to deduct such required
withholding from any payment of any kind otherwise due to the
Grantee. The Grantee shall consult his or her own tax advisors
regarding the tax consequences to him or her of the receipt of the Shares, of
the making of the election pursuant to Paragraph 10 hereof, or of any particular
transaction relating to the Shares.
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10. TAX ELECTION. The Grantee hereby
agrees to deliver to the Company a signed copy of any documents he or she may
file with the Internal Revenue Service evidencing an election under Section
83(b) of the Internal Revenue Code of 1986 as amended, which copy shall be
delivered to the Company within two (2) business days after the date on which
any such election is made.
11. CONDITION PRECEDENT TO GRANT.
In the event that the award of the Grant shall be subject to, or shall
require, any prior exchange listing, shareholder approval or other condition or
act, pursuant to the applicable laws, regulations or policies of any stock
exchange, federal or local government or its agencies or representatives, then
the Grant hereunder shall not be deemed awarded until the fulfillment of such
condition.
12. RIGHTS AS A
STOCKHOLDER. Subject to the terms and conditions of this
Agreement and the 2007 Plan, including, without limitation, the restrictions on
transfer and the risk of forfeiture applicable to the Shares covered by the
Grant during the Restricted Period, from and after the date of Grant, the
Grantee shall have all the rights of a stockholder of the Company with respect
to the Shares covered by the Grant, including the right to vote the Shares and
the right to receive dividends or other distributions paid thereon, provided
that any dividends in the form of Shares will be subject to the terms and
conditions of the 2007 Plan and this Agreement.
13. ADMINISTRATION. The
Compensation and Stock Option Committee (the “Committee”)
shall have full authority and discretion, subject only to the express terms of
the 2007 Plan, to decide all matters relating to the administration and
interpretation of the 2007 Plan and this Agreement and the Grantee agrees to
accept all such Committee determinations as final, conclusive and
binding. The Company may designate an internal department or may
retain a third-party plan administrator to assist in the administration of the
2007 Plan. The term “Stock Plan
Administrator” as used herein shall mean such internal department or such
third-party plan administrator as designated by the Company from time to
time.
14. COSTS. The Company
shall not charge the Grantee for any part of the Company’s cost to administer
and operate the 2007 Plan. If the Company retains a third-party plan
administrator to assist in the administration of the 2007 Plan, the Grantee may
be charged fees by such third-party plan administrator in connection with any
transactions which the Grantee effects through such third-party plan
administrator.
15. AMENDMENT. This
Agreement shall be subject to the terms of the 2007 Plan, as may be amended by
the Company from time to time, except that no amendment of the 2007 Plan adopted
after the date of this Agreement shall impair the Grantee’s rights hereunder
without his or her consent. In addition to the foregoing, this
Agreement may be amended by the Committee, provided that no such amendment shall
impair the Grantee’s rights hereunder without his or her consent.
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16. DATA PRIVACY. By
entering into this Agreement, the Grantee (a) authorizes the Company and its
subsidiaries and the Stock Plan Administrator or any agent of the Company
providing recordkeeping services for the 2007 Plan to disclose to each other
such information and data as either of them shall request in order to facilitate
the award of Grants and the administration of the 2007 Plan; (b) waives any data
privacy rights the Grantee may have with respect to such information; and (c)
authorizes the Company and the Stock Plan Administrator or any agent of the
Company providing recordkeeping services for the 2007 Plan to store and transmit
such information in electronic form.
17. NOTICES. All notices and
communications by the Grantee (or his or her permitted transferee) in connection
with this Agreement or the Shares granted hereunder shall be delivered to the
Stock Plan Administrator. Unless otherwise directed by the Company,
notices to the Stock Plan Administrator shall be delivered in writing by
nationally recognized overnight courier, certified mail, postage prepaid or by
facsimile to the attention of Chief Financial Officer, Benihana Inc., 0000 X.X.
00xx
Xxxxxxx, Xxxxx, Xxxxxxx 00000 (facsimile: (000) 000-0000). In the
event the Company retains a third party plan administrator to administer the
2007 Plan, the Grantee will be advised of the procedure to provide notices to
such third party plan administrator and the Company. All notices and
communications by the Stock Plan Administrator or the Company to the Grantee (or
his or her permitted transferee) in connection with this Agreement shall be
given in writing and shall be delivered electronically to the Grantee's e-mail
address appearing on the records of the Company, or by nationally recognized
overnight courier or certified mail, postage prepaid to the Grantee's residence
or to such other address as may be designated in writing by the
Grantee.
18. ENTIRE AGREEMENT AND
WAIVER. This Agreement and the 2007 Plan contain the entire
understanding of the parties and supersede any prior understanding and
agreements between them representing the subject matter hereof. To
the extent that there is an inconsistency between the terms of the 2007 Plan and
this Agreement, the terms of the 2007 Plan shall control. There are
no other representations, agreements, arrangements or understandings, oral or
written, between the parties hereto relating to the subject matter hereof which
are not fully expressed herein or in the 2007 Plan. Any waiver or any
right or failure to perform under this Agreement shall be in writing signed by
the party granting the waiver and shall not be deemed a waiver of any subsequent
failure to perform.
19. SEVERABILITY AND
VALIDITY. The various provisions of this Agreement are
severable and any determination of invalidity or unenforceability of any one
provision shall have no effect on the remaining provisions.
20. GOVERNING LAW. The
interpretation, enforceability and validity of this Agreement shall be governed
by the substantive laws (but not the choice of law rules) of the State of
Florida.
21. SUBSIDIARY. As used herein,
the term "subsidiary" shall mean any present or future corporation which would
be a "subsidiary corporation" of the Company, as that term is defined in Section
424(f) of the Internal Revenue Code of 1986, as amended.
22. HEADINGS;
DEFINITIONS. Paragraph and other headings contained in this
Agreement are for reference purposes only and are in no way intended to
describe, interpret, define or limit the scope, extent or intent of the Option
or any provision hereof. Capitalized terms not otherwise defined
herein have the meanings ascribed to them in the 2007 Plan.
*
* *
By my
signature below I am accepting the stock grant described on the Information Page
annexed hereto as Exhibit A, subject to
the terms and conditions contained in this Employee Restricted Stock Agreement
and the 2007 Plan.
Dated:
_______________
_________________________________
Name:
Approved:
By:
___________________
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EXHIBIT
A
INFORMATION
PAGE
Name of
Grantee:
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Date of
Grant:
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Number
of Shares
of Stock
Grant:
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Per Share
Consideration:
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Fair Market Value on
the Date of Grant:
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Vesting
Schedule:
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Number
of Shares
|
Vesting
Date
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