RESTRICTED STOCK AGREEMENT
Exhibit 99.2
THIS
RESTRICTED STOCK AGREEMENT (the
“Agreement”) is made and entered into effective April 27, 2005, by and
between OS RESTAURANT SERVICES, INC., a Delaware corporation (“OSRS”), OUTBACK
STEAKHOUSE, INC., a Delaware corporation (the “Company”), and A. Xxxxxxx Xxxxx,
III, SSN (“Grantee”), under the following circumstances:
WHEREAS,
OSRS is an affiliate of the Company; and
WHEREAS,
Grantee is employed by OSRS or its affiliate in the position of Chief Executive
Officer and, as a matter of separate inducement and agreement in connection with
Grantee's employment, and not in lieu of any salary or other compensation for
Grantee’s services, OSRS and the Company desire to enter into this Agreement
with Grantee; and
WHEREAS,
OSRS and the Company consider it to be in their best interests to provide
Grantee an inducement to acquire an ownership interest in the Company and
thereby an additional incentive to advance the interests of the Company and
OSRS;
NOW,
THEREFORE,
intending to be legally bound, in consideration of the mutual covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
Section
1. Grant.
On the
effective date hereof the Company hereby grants to Grantee Three
Hundred Thousand (300,000) shares of the
Company’s Common Stock, $0.01 par value (the “Restricted Stock”).
The
Restricted Stock has been granted pursuant to the Outback Steakhouse, Inc.
Amended and Restated Stock Plan (the “Plan”) and is subject to all provisions of
the Plan, which are hereby incorporated herein by reference, and to the
following provisions of this Agreement (capitalized terms not defined herein are
used as defined in the Plan):
Section
2. Vesting. The
Restricted Stock will vest as follows:
On
December 31, 2009 (the “First Vesting Date”) 90,000 shares of Restricted Stock
shall vest; provided however if on the First Vesting Date the market
capitalization of the Company exceeds $6,060,000,000, an additional 30,000
shares of Restricted Stock shall vest;
On
December 31, 2011 (the “Second Vesting Date”) 90,000 shares of Restricted Stock
shall vest; provided however if on the Second Vesting Date the market
capitalization of the Company exceeds $8,060,000,000, an additional 30,000
shares of Restricted Stock shall vest; and
On
December 31, 2014 (the “Final Vesting Date”) all remaining shares of Restricted
Stock granted herein shall vest.
Section
3. Purchase
Price. The
purchase price of the Restricted Stock is Zero
Dollars ($0.00) per
share. The Restricted Stock will be issued in uncertificated form. The
Restricted Stock will be recorded in the name of the Grantee in the books and
records of the Company’s transfer agent. Upon vesting and Grantee’s compliance
with Section
8 hereof,
the Company shall cause certificates for the Restricted Stock to be issued to
Grantee.
1
Section
4. Transferability. The
Restricted Stock cannot be transferred or encumbered in any manner prior to
vesting except by will or the laws of descent and distribution. The transferee
of any Restricted Stock will be subject to all restrictions, terms, and
conditions applicable to the Restricted Stock.
Section
5. Termination
of Employment. If the
Grantee’s employment as Chief Executive Officer terminates prior to the Final
Vesting Date, regardless of the circumstances of termination, all shares of
Restricted Stock not vested as of the date of termination of employment as Chief
Executive Officer will be forfeited.
Section
6. Shareholder
Rights and Restrictions. Except
with regard to the disposition or encumbrance of Restricted Stock, the Grantee
will generally have all rights of a shareholder with respect to the Restricted
Stock from the date of grant, including, without limitation, the right to
receive dividends with respect to such Restricted Stock and the right to vote
such Restricted Stock, subject to any restrictions in this Agreement or in the
Plan.
Section
7. Dividends. All
dividends payable on the Restricted Stock (whether or not vested) will be
payable in cash.
Section
8. Taxes. The
Grantee hereby agrees to pay to the Company any federal, state, or local taxes
of any kind required by law to be withheld and remitted by the Company with
respect to the Restricted Stock. The Grantee may satisfy such tax obligation, in
whole or in part, by (i) electing to have the Company withhold a portion of the
Restricted Stock otherwise to be delivered upon vesting of the Restricted Stock
with a Fair Market Value equal to the amount of such taxes, or (ii) delivering
to the Company other shares of common stock of the Company with a Fair Market
Value equal to the amount of such taxes. The election, if any, must be made on
or before the date that the amount of tax to be withheld is determined. If the
Grantee does not make such payment to the Company, the Company shall have the
right to withhold from any payment of any kind otherwise due to the Grantee from
the Company, any federal, state or local taxes of any kind required by law to be
withheld with respect to the award or vesting of the Restricted
Stock.
Section
10. Subject
to the Plan. This
Agreement is made and the Restricted Stock evidenced hereby are granted under
and pursuant to, and they are expressly made subject to all of the terms and
conditions of, the Plan, notwithstanding anything herein to the contrary. The
Grantee hereby acknowledges receipt of a copy of the Plan and that the Grantee
has read and understands the terms and conditions of the Plan.
Section
11. Securities
Law Compliance.
(a) The
Grantee agrees that the Company may impose such restrictions on the Restricted
Stock as are deemed advisable by the Company, including, without limitation,
restrictions relating to listing or trading requirements. The Grantee further
agrees that certificates representing the Restricted Stock may bear such legends
and statements as the Company shall deem appropriate or advisable to assure,
among other things, compliance with applicable securities laws, rules, and
regulations.
(b) The
Grantee agrees that any Restricted Stock which the Grantee may acquire by virtue
of this Agreement may not be transferred, sold, assigned, pledged, hypothecated
or otherwise disposed of by the Grantee unless (i) a registration statement or
post-effective amendment to a registration statement under the Securities Act of
1933, as amended, with respect to such Restricted Stock has become effective so
as to permit the sale or other disposition of such Restricted Stock by the
Grantee, or (ii) there is presented to the Company an opinion of counsel
satisfactory to the Company to the effect that the sale or other proposed
disposition of such Restricted Stock by the Grantee may lawfully be made
otherwise than pursuant to an effective registration statement or post-effective
amendment to a registration statement relating to such Restricted Stock under
the Securities Act of 1933, as amended.
2
Section
12. Rights
of the Grantee. The
granting of the Restricted Stock shall in and of itself not confer any right of
the Grantee to continue in the employ of the Company, any subsidiary or
affiliate and shall not interfere in any way with the right of the Company, any
subsidiary or affiliate to terminate the Grantee's employment at any time,
subject to the terms of any employment agreement between the Company and the
Grantee.
Section
13. Governing
Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Florida, except to the extent otherwise governed by Federal
law.
Section
14 Right
to Withhold Amounts Owed to the Company. The
Company shall have the right to condition the vesting of any shares of
Restricted Stock on the Grantee’s payment of all amounts then due and owing to
the Company or any subsidiary or affiliate.
IN
WITNESS WHEREOF, the parties have subscribed their names hereto.
|
“OSRS” | |
|
Attest: |
OS
RESTAURANT SERVICES, INC., |
|
a
Delaware corporation | |
|
By:
_____________________________________ |
By:
_____________________________________ |
|
XXXXXX
X. XXXXX, Secretary |
XXXXXX
X. XXXXXXX, Senior Vice President |
|
“COMPANY” | |
|
Attest: |
OUTBACK
STEAKHOUSE, INC. |
|
a
Delaware corporation | |
|
By:
_____________________________________ |
By:
_____________________________________ |
|
XXXXXX
X. XXXXX, Secretary |
XXXXXX
X. XXXXXXX, Senior Vice President |
3
DATE OF
GRANT: April 27,
2005
ACCEPTANCE
OF AGREEMENT
The
Grantee hereby:
(a) Acknowledges
that he has received a copy of the Plan and a copy of the Company’s most recent
Annual Report and other communications routinely distributed to the Company’s
shareholders;
(b) Accepts
this Agreement and the Restricted Stock granted to him/her under this Agreement
subject to all provisions of the Plan and this Agreement;
(c) Represents
and warrants to the Company that he is acquiring the Restricted Stock for
his/her own account, for investment, and not with a view to or any present
intention of selling or distributing the Restricted Stock either now or at any
specific or determinable future time or period or upon the occurrence or
nonoccurrence of any predetermined or reasonably foreseeable event;
and
(d) Agrees
that no transfer of the Restricted Stock will be made unless the Restricted
Stock have been duly registered under all applicable Federal and state
securities laws pursuant to a then effective registration which contemplates the
proposed transfer or unless the Company has received the written opinion of, or
satisfactory to, its legal counsel that the proposed transfer is exempt from
such registration.
Grantee’s
Signature:
__________________________________________
A.
Xxxxxxx Xxxxx, III, SSN
