RUBIO’S RESTAURANTS, INC. PERFORMANCE BASED RESTRICTED STOCK UNITS AGREEMENT
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RESTAURANTS, INC.
PERFORMANCE
BASED RESTRICTED STOCK UNITS
AGREEMENT
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Restaurants, Inc. has granted to the Participant named in the Notice of Grant of Restricted Stock
Units (the “Grant
Notice”) to
which this Restricted Stock Units Agreement (the “Agreement”) is attached an award (the
“Award”)
consisting of Restricted Stock Units (the “Units”) subject to the terms and
conditions set forth in the Grant Notice and this Agreement. The
Award has been granted pursuant to and shall in all respects be subject to the
terms conditions of the ▇▇▇▇▇’▇ Restaurants, Inc. 2008 Equity Incentive Plan
(the “Plan”), as amended to the Grant
Date, the provisions of which are incorporated herein by
reference. By signing the Grant Notice, the Participant:
(a) acknowledges receipt of and represents that the Participant has
read and is familiar with the Grant Notice, this Agreement, the Plan and a
prospectus for the Plan prepared in connection with the registration with the
Securities and Exchange Commission of the Shares issuable pursuant to the Award
(the “Plan
Prospectus”),
(b) accepts the Award subject to all of the terms and conditions of the
Grant Notice, this Agreement and the Plan and (c) agrees to accept as
binding, conclusive and final all decisions or interpretations of the Committee
upon any questions arising under the Grant Notice, this Agreement or the
Plan.
1. Definitions
and Construction.
1.1 Definitions. Unless
otherwise defined herein, capitalized terms shall have the meanings assigned in
the Grant Notice or the Plan.
1.2 Construction. Captions
and titles contained herein are for convenience only and shall not affect the
meaning or interpretation of any provision of this Agreement. Except
when otherwise indicated by the context, the singular shall include the plural
and the plural shall include the singular. Use of the term “or” is
not intended to be exclusive, unless the context clearly requires
otherwise.
2. Administration.
All
questions of interpretation concerning the Grant Notice, this Agreement and the
Plan shall be determined by the Committee. All determinations by the
Committee shall be final and binding upon all persons having an interest in the
Award as provided by the Plan. Any officer shall have the authority
to act on behalf of the Company with respect to any matter, right, obligation,
or election which is the responsibility of or which is allocated to the Company
herein, provided the officer has apparent authority with respect to such matter,
right, obligation, or election.
3. The
Award.
3.1 Grant of Units. On
the Grant Date, the Participant shall acquire, subject to the provisions of this
Agreement, the Number of Restricted Stock Units set forth in the Grant Notice,
subject to adjustment as provided in Section 9. Each Unit
represents a right to receive on a date determined in accordance with the Grant
Notice and this Agreement one (1) Share.
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3.2 No Monetary Payment
Required. The Participant is not required to make any monetary
payment (other than applicable tax withholding, if any) as a condition to
receiving the Units or as issued upon settlement of the Units, the consideration
for which shall be past services actually rendered and/or future services to be
rendered to the Company or an Affiliate or for its
benefit. Notwithstanding the foregoing, if required by applicable
state corporate law, the Participant shall furnish consideration in the form of
cash or past services rendered having a value not less than the par value of the
Shares issued upon settlement of the Units.
4. Vesting
of Units.
The Units
shall vest and become Vested Units upon a Change of Control as provided in the
Grant Notice. For purposes herein, a “Change of
Control” shall mean the occurrence of any of the following: (i) the sale,
lease, conveyance or other disposition of all or substantially all of the
Company’s assets to any “person” (as such term is used in Section 13(d) of the
Exchange Act of 1934, as amended), entity or group of persons acting in concert;
(ii) any person or group of persons becoming the “beneficial owner” (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of
the Company representing 50% or more of the total voting power represented by
the Company’s then outstanding voting securities; (iii) a merger, consolidation
or other transaction of the Company with or into any other corporation, entity
or person, other than a transaction in which the holders of at least 50% of the
shares of capital stock of the Company outstanding immediately prior thereto
continue to hold (either by voting securities remaining outstanding or by their
being converted into voting securities of the surviving entity or its
controlling entity) at least 50% of the total voting power represented by the
voting securities of the Company or such surviving entity (or its controlling
entity) outstanding immediately after such transaction; or (iv) a contest for
the election or removal of members of the Board of Directors of the Company that
results in the removal from the Board of at least 50% of the incumbent members
of the Board.
5. Company
Reacquisition Right.
5.1 Grant of Company Reacquisition
Right. Except to the extent otherwise provided in an
employment agreement between the Company or an Affiliate and the Participant, in
the event that the Participant’s service to the
Company and its Affiliates terminates for any reason or no reason, with or
without cause, the Participant shall forfeit and the Company shall automatically
reacquire all Units which are not, as of the time of such termination, Vested
Units (“Unvested
Units”), and the
Participant shall not be entitled to any payment therefor (the “Company
Reacquisition Right”).
5.2 Dividends, Distributions and
Adjustments. Upon
the occurrence of a dividend or distribution to the stockholders of the Company
paid in Shares or other property, or any other adjustment upon a change in the
capital structure of the Company as described in Section 14 of the Plan, any and
all new, substituted or additional securities or other property (other than
regular, periodic dividends paid on Shares pursuant to the Company’s dividend
policy) to which the Participant is entitled by reason of the Participant’s
Unvested Units shall be immediately subject to the Company Reacquisition Right
and included in the terms “Units” and “Unvested Units” for all purposes of the
Company Reacquisition Right with the same force and effect as the Unvested Units
immediately prior to the dividend, distribution or adjustment, as the case may
be.
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6. Settlement
of the Award.
6.1 Issuance of Shares of
Stock. Subject
to the provisions of Sections 6.3
and 6.4 below, the Company shall issue to the Participant on the Settlement Date
with respect to each Vested Unit to be settled on such date one (1)
Share. Shares issued in settlement of Units shall not be subject to
any restriction on transfer other than any such restriction as may be required
pursuant to Section 6.4, Section 7 or the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Policy.
6.2 Beneficial Ownership of Shares;
Certificate Registration. The
Participant hereby authorizes the Company, in its sole discretion, to deposit
for the benefit of the Participant with any broker with which the Participant
has an account relationship of which the Company has notice any or all Shares
acquired by the Participant pursuant to the settlement of the
Award. Except as provided by the preceding sentence, a certificate
for the Shares as to which the Award is settled shall be registered in the name
of the Participant, or, if applicable, in the names of the heirs of the
Participant.
6.3 Postponement of Settlement
Date. Notwithstanding the provisions set forth in Section 6.1,
in the event that a Settlement Date would occur on a date on which a sale by the
Participant of the Shares to be issued in settlement of the Units on such
Settlement Date would violate the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Policy of the Company, such
Settlement Date shall be postponed until the first to occur of (a) the next
business day on which a sale by the Participant of such Shares would not violate
the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Policy; and (b) March 15th of the
calendar year following the calendar year in which the Vesting Date
occurred.
6.4 Restrictions on Grant of the Award
and Issuance of Shares. The
grant of the Award and issuance of Shares upon settlement of the Award shall be
subject to compliance with all applicable requirements of federal, state or
foreign law with respect to such securities. No Shares may be issued
hereunder if the issuance of such Shares would constitute a violation of any
applicable federal, state or foreign securities laws or other law or regulations
or the requirements of any stock exchange or market system upon which the Shares
may then be listed. The inability of the Company to obtain from any
regulatory body having jurisdiction the authority, if any, deemed by the
Company’s legal counsel to be necessary to the lawful issuance of any Shares
subject to the Award shall relieve the Company of any liability in respect of
the failure to issue such Shares as to which such requisite authority shall not
have been obtained. As a condition to the settlement of the Award,
the Company may require the Participant to
satisfy any qualifications that may be necessary or appropriate, to evidence
compliance with any applicable law or regulation and to make any representation
or warranty with respect thereto as may be requested by the
Company.
6.5 Fractional Shares. The
Company shall not be required to issue fractional Shares upon the settlement of
the Award.
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7. Tax
Withholding.
7.1 In General. At the
time the Grant Notice is executed, or at any time thereafter as requested by the
Company, the Participant hereby
authorizes withholding from payroll and any other amounts payable to the Participant, and
otherwise agrees to make adequate provision for, any sums required to satisfy
the federal, state, local and foreign tax (including any social insurance)
withholding obligations of the Company (or its Affiliates), if any, which arise
in connection with the Award, the vesting of Units or the issuance of Shares in
settlement thereof. The Company shall have no obligation to deliver
Shares until such tax withholding obligations have been satisfied by the Participant.
7.2 Assignment of Sale Proceeds; Payment
of Tax Withholding by Check. Subject to compliance with
applicable law and the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Policy, the Company may permit
the Participant to satisfy the tax withholding obligations in accordance with
procedures established by the Company providing for either (i) delivery by
the Participant to the Company or a broker approved by the Company of properly
executed instructions, in a form approved by the Company, providing for the
assignment to the Company of the proceeds of a sale with respect to some or all
of the Shares being acquired upon settlement of Units, or (ii) payment by
check. The Participant shall deliver written notice of any such
permitted election to the Company on a form specified by the Company for this
purpose at least thirty (30) days (or such other period established by the
Company) prior to such Settlement Date. If the Participant elects
payment by check, the Participant agrees to deliver a check for the full amount
of the required tax withholding to the Company (or its Affiliates, if
applicable) on or before the third business day following the Settlement
Date. If the Participant elects to payment by check but fails to make
such payment as required by the preceding sentence, the Company is hereby
authorized, at its discretion, to satisfy the tax withholding obligations
through any means authorized by this Section 7, including by directing a sale for the
account of the Participant of some or all of the Shares being acquired upon
settlement of Units from which the required taxes shall be withheld, by
withholding from payroll and any other amounts payable to the Participant or by
withholding Shares in accordance with Section 7.3.
7.3 Withholding in
Shares. The Company may require the Participant to satisfy all
or any portion of a Participating Company’s tax withholding obligations by
deducting from the Shares otherwise deliverable to the Participant in settlement
of the Award a number of whole Shares having a fair market value, as determined
by the Company as of the date on which the tax withholding obligations arise,
not in excess of the amount of such tax withholding obligations determined by
the applicable minimum statutory withholding rates.
8. Effect of
Change of Control on Award.
In the
event of a Change of Control, the Units shall become Vested Units in accordance
with Section 4 and the Grant Notice. To the extent Units do not
become Vested Units in connection with a Change of Control, such Units shall
terminate.
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9. Adjustments
for Changes in Capital Structure.
Subject
to any required action by the stockholders of the Company and, to the extent
applicable, the requirements of Section 409A of the Code to the extent
applicable, in the event of any change in the Shares effected without receipt of
consideration by the Company, whether through merger, consolidation,
reorganization, reincorporation, recapitalization, reclassification, stock
dividend, stock split, reverse stock split, split-up, split-off, spin-off,
combination of shares, exchange of shares, or similar change in the capital
structure of the Company, or in the event of payment of a dividend or
distribution to the stockholders of the Company in a form other than Shares
(excepting normal cash dividends) that has a material effect on the Fair Market
Value of shares of Stock, appropriate and proportionate adjustments shall be
made in the number of Units subject to the Award and/or the number and kind of
Shares to be issued in settlement of the Award, in order to prevent dilution or
enlargement of the Participant’s rights under the Award. For purposes
of the foregoing, conversion of any convertible securities of the Company shall
not be treated as “effected without receipt of consideration by the
Company.” Any fractional Share resulting from an adjustment pursuant
to this Section shall be rounded down to the nearest whole
number. Such adjustments shall be determined by the Committee, and
its determination shall be final, binding and conclusive.
10. Rights as
a Stockholder or Employee.
The Participant shall
have no rights as a stockholder with respect to any Shares which may be issued
in settlement of this Award until the date of the issuance of a certificate for
such Shares (as evidenced by the appropriate entry on the books of the Company
or of a duly authorized transfer agent of the Company). No adjustment
shall be made for dividends, distributions or other rights for which the record
date is prior to the date such certificate is issued, except as provided in
Section 9. If the Participant is an Employee, the Participant
understands and acknowledges that, except as otherwise provided in a separate,
written employment agreement between the Company or an Affiliate and the
Participant, the Participant’s employment is
“at will” and is for no specified term. Nothing in this Agreement
shall confer upon the Participant any
right to continue in the service of the Company or an Affiliate or interfere in
any way with any right of the Company or an Affiliate to terminate the Participant’s
service at any time.
11. Legends.
The
Company may at any time place legends referencing any applicable federal, state
or foreign securities law restrictions on all certificates representing Shares
issued pursuant to this Agreement. The Participant shall,
at the request of the Company, promptly present to the Company any and all
certificates representing shares acquired pursuant to this Award in the
possession of the Participant in
order to carry out the provisions of this Section.
12. Miscellaneous
Provisions.
12.1 Termination or
Amendment. The Committee may terminate or amend the Plan or
this Agreement at any time; provided, however that except as provided in
Sections 4 and 8 in connection with a Change of Control, no such termination or
amendment may adversely affect the Participant’s rights under this Agreement
without the consent of the Participant unless such
termination or amendment is necessary to comply with applicable law or
government regulation, including, but not limited to, Section 409A of the
Code. No amendment or addition to this Agreement shall be
effective unless in writing.
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12.2 Nontransferability of the
Award. Prior to the issuance of Shares on the applicable
Settlement Date, neither this Award nor any Units subject to this Award shall be
subject in any manner to anticipation, alienation, sale, exchange, transfer,
assignment, pledge, encumbrance, or garnishment by creditors of the Participant
or the Participant’s beneficiary, except transfer by will or by the laws of
descent and distribution. All rights with respect to the Award shall
be exercisable during the Participant’s lifetime only by the Participant or the
Participant’s guardian or legal representative.
12.3 Further
Instruments. The parties agree to execute such further
instruments and to take such further action as may reasonably be necessary to
carry out the intent of this Agreement.
12.4 Binding
Effect. This Agreement shall inure to the benefit of the
successors and assigns of the Company and, subject to the restrictions on
transfer set forth herein, be binding upon the Participant and the Participant’s
heirs, executors, administrators, successors and assigns.
12.5 Delivery of Documents and
Notices. Any document relating to participation in the Plan or
any notice required or permitted hereunder shall be given in writing and shall
be deemed effectively given (except to the extent that this Agreement provides
for effectiveness only upon actual receipt of such notice) upon personal
delivery, electronic delivery at the e-mail address, if any, provided for the
Participant by the Company or an Affiliate, or upon deposit in the U.S. Post
Office or foreign postal service, by registered or certified mail, or with a
nationally recognized overnight courier service, with postage and fees prepaid,
addressed to the other party at the address shown below that party’s signature
to the Grant Notice or at such other address as such party may designate in
writing from time to time to the other party.
(a) Description of Electronic
Delivery. The
Plan documents, which may include but do not necessarily include: the Plan, the
Grant Notice, this Agreement, the Plan Prospectus, and any reports of the
Company provided generally to the Company’s stockholders, may be delivered to
the Participant electronically. In addition, the Participant may
deliver electronically the Grant Notice to the Company or to such third party
involved in administering the Plan as the Company may designate from time to
time. Such means of electronic delivery may include but do not
necessarily include the delivery of a link to a Company intranet or the Internet
site of a third party involved in administering the Plan, the delivery of the
document via e-mail or such other means of electronic delivery specified by the
Company.
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(b) Consent to Electronic
Delivery. The Participant acknowledges that the Participant
has read Section 12.5(a) of this Agreement and consents to the electronic
delivery of the Plan documents and Grant Notice, as described in
Section 12.5(a). The Participant acknowledges that he or she may
receive from the Company a paper copy of any documents delivered electronically
at no cost to the Participant by contacting the Company by telephone or in
writing. The Participant further acknowledges that the Participant
will be provided with a paper copy of any documents if the attempted electronic
delivery of such documents fails. Similarly, the Participant
understands that the Participant must provide the Company or any designated
third party administrator with a paper copy of any documents if the attempted
electronic delivery of such documents fails. The Participant may
revoke his or her consent to the electronic delivery of documents described in
Section 12.5(a) or may change the electronic mail address to which such
documents are to be delivered (if Participant has provided an electronic mail
address) at any time by notifying the Company of such revoked consent or revised
e-mail address by telephone, postal service or electronic
mail. Finally, the Participant understands that he or she is not
required to consent to electronic delivery of documents described in
Section 12.5(a).
12.6 Integrated
Agreement. The Grant Notice, this Agreement and the Plan,
together with any employment, service or other agreement between the Participant
and a the Company or an Affiliate referring to the Award, shall constitute the
entire understanding and agreement of the Participant and the
Company or an Affiliate with respect to the subject matter contained herein or
therein and supersede any prior agreements, understandings, restrictions,
representations, or warranties among the Participant and
the Company and its Affiliate with respect to such subject matter
other than those as set forth or provided for herein or therein. To
the extent contemplated herein or therein, the provisions of the Grant Notice,
this Agreement and the Plan shall survive any settlement of the Award and shall
remain in full force and effect.
12.7 Applicable
Law. This Agreement shall be governed by the laws of the State
of California as such laws are applied to agreements between California
residents entered into and to be performed entirely within the State of
California.
12.8 Counterparts. The
Grant Notice may be executed in counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
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