EXHIBIT 10.5
Award Number: ______
CKE RESTAURANTS, INC.
RESTRICTED STOCK UNIT AWARD AGREEMENT
UNDER
2005 OMNIBUS INCENTIVE COMPENSATION PLAN
Award Date Number of Units Final Vesting Date
[Restricted Stock Units]
CKE Restaurants, Inc. (the "Company") has on the Award Date specified
above granted to ______________________________ ("Grantee") an award (the
"Award") to receive that number of restricted stock units (the "Restricted Stock
Units") indicated above in the box labeled "Number of Units," each Restricted
Stock Unit representing the right to receive one share of the Company's Common
Stock, $.01 par value per share (the "Common Stock"), subject to certain
restrictions and on the terms and conditions contained in this Award and the CKE
Restaurants, Inc. 2005 Omnibus Incentive Compensation Plan (the "Plan"). Any
terms not defined herein shall have the meaning set forth in the Plan.
1. RIGHTS OF THE GRANTEE WITH RESPECT TO THE RESTRICTED STOCK UNITS.
(a) NO STOCKHOLDER RIGHTS. The Grantee shall have no rights as a
stockholder of the Company until shares of Common Stock are actually issued to
and held of record by the Grantee. The rights of Grantee with respect to the
Restricted Stock Units shall remain forfeitable at all times prior to the date
on which such rights become vested, and the restrictions with respect to the
Restricted Stock Units lapse, in accordance with Section 2, 3 or 4 below.
(b) ADDITIONAL RESTRICTED STOCK UNITS. As long as Grantee holds
Restricted Stock Units granted pursuant to this Award, the Company shall credit
to Grantee, on each date that the Company pays a cash dividend to holders of
Common Stock generally, an additional number of Restricted Stock Units
("Additional Restricted Stock Units") equal to the total number of whole
Restricted Stock Units and Additional Restricted Stock Units previously credited
to Grantee under this Award multiplied by the dollar amount of the cash dividend
paid per share of Common Stock by the Company on such date, divided by the Fair
Market Value of a share of Common Stock on such date. Any fractional Restricted
Stock Unit resulting from such calculation shall be included in the Additional
Restricted Stock Units. A report showing the number of Additional Restricted
Stock Units so credited shall be sent to Grantee periodically, as determined by
the Company. The Additional Restricted Stock Units so credited shall be subject
to the same terms and conditions as the Restricted Stock Units to which such
Additional Restricted Stock Units relate and the Additional Restricted Stock
Units shall be forfeited in the event that the Restricted Stock Units with
respect to which such Additional Restricted Stock Units were credited are
forfeited.
(c) CONVERSION OF RESTRICTED STOCK UNITS; ISSUANCE OF COMMON STOCK.
No shares of Common Stock shall be issued to Grantee prior to the date on which
the Restricted Stock Units vest, and the restrictions with respect to the
Restricted Stock Units lapse, in accordance with Section 2, 3 or 4. Neither this
Section 1(c) nor any action taken pursuant to or in accordance with this Section
1(c) shall be construed to create a trust of any kind. As soon as practical
after any Restricted Stock Units vest pursuant to Section 2, 3 or 4, the Company
shall promptly cause to be issued an equivalent number of shares of Common
Stock, registered in Grantee's name or in the name of ▇▇▇▇▇▇▇'s legal
representatives, beneficiaries or heirs, as the case may be, in payment of such
vested whole Restricted Stock Units and any Additional Restricted Stock Units.
Such payment shall be subject to the tax withholding provisions of Section 7,
and shall be in complete satisfaction of such vested Restricted Stock Units. The
value of any fractional Restricted Stock Unit shall be paid in cash at the time
certificates are delivered to Grantee in payment of the Restricted Stock Units
and any Additional Restricted Stock Units.
2. VESTING. Subject to the terms and conditions of this Award, the
Restricted Stock Units shall become vested in installments as follows: [INSERT
VESTING SCHEDULE, EITHER TIME-BASED OR PERFORMANCE-BASED].
As used herein, the term "Continuous Service" means (i) employment by
either the Company or any parent or subsidiary corporation of the Company, or by
any successor entity following a Change in Control, which is uninterrupted
except for vacations, illness, or leaves of absence which are approved in
writing by the Company or any of such other employer corporations, if
applicable, or (ii) service as a member of the Board of Directors of the Company
until ▇▇▇▇▇▇▇ resigns, is removed from office, or Grantee's term of office
expires and he or she is not reelected.
3. VESTING UPON CHANGE IN CONTROL.
(a) Notwithstanding Section 2 above, if Grantee holds Restrictive
Stock Units at the time a Change in Control occurs, all of the Restricted Stock
Units shall become immediately and unconditionally vested and exercisable, and
the restrictions with respect to all of the Restricted Stock Units shall lapse,
effective immediately prior to the occurrence of a Triggering Event (as defined
below) occurring within the twelve (12) month period beginning with such Change
in Control.
(b) For purposes of this Section 3, the following terms shall have
the meanings set forth below:
(i) "Triggering Event" shall mean (i) the termination of
Continuous Service of Grantee by the Company or an Affiliate (or any
successor thereof) other than on account of death, Disability or
Cause, (ii) the occurrence of a Constructive Termination or (iii)
any failure by the Company (or a successor entity) to assume,
replace, convert or otherwise continue this Agreement in connection
with the Change in Control (or another corporate transaction or
other change effecting the Common Stock) on the same terms and
conditions as applied immediately prior to such transaction, except
for equitable adjustments to reflect changes in the Common Stock
pursuant to Section 6 hereof and Section 4.3 of the Plan.
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(ii) "Cause" shall mean a determination by the Committee that
Grantee (i) has been convicted of, or entered a plea of nolo
contendere to, a crime that constitutes a felony under Federal or
state law, (ii) has engaged in willful gross misconduct in the
performance of the Grantee's duties to the Company or an Affiliate
or (iii) has committed a material breach of any written agreement
with the Company or any Affiliate with respect to confidentiality,
noncompetition, nonsolicitation or similar restrictive covenant. In
the event that the Grantee is a party to an employment agreement
with the Company or any Affiliate that defines a termination on
account of "Cause" (or a term having similar meaning), such
definition shall apply as the definition of a termination on account
of "Cause" for purposes hereof, but only to the extent that such
definition provides the Grantee with greater rights. A termination
on account of Cause shall be communicated by written notice to the
Grantee, and shall be deemed to occur on the date such notice is
delivered to the Grantee.
(iii) "Constructive Termination" shall mean a termination of
employment by Grantee within sixty (60) days following the
occurrence of any one or more of the following events without the
Grantee's written consent (i) any reduction in position, title (for
Vice Presidents or above), overall responsibilities, level of
authority, level of reporting (for Vice Presidents or above), base
compensation, annual incentive compensation opportunity, aggregate
employee benefits or (ii) a request that ▇▇▇▇▇▇▇'s location of
employment be relocated by more than fifty (50) miles. In the event
that the Grantee is a party to an employment agreement with the
Company or any Affiliate (or a successor entity) that defines a
termination on account of "Constructive Termination," "Good Reason"
or "Breach of Agreement" (or a term having a similar meaning), such
definition shall apply as the definition of "Constructive
Termination" for purposes hereof in lieu of the foregoing, but only
to the extent that such definition provides the Grantee with greater
rights. A Constructive Termination shall be communicated by written
notice to the Committee, and shall be deemed to occur on the date
such notice is delivered to the Committee, unless the circumstances
giving rise to the Constructive Termination are cured within five
(5) days of such notice.
4. FORFEITURE OR EARLY VESTING UPON TERMINATION OF EMPLOYMENT.
(a) TERMINATION OF EMPLOYMENT GENERALLY. If, prior to vesting of the
Restricted Stock Units pursuant to Section 2 or 3, Grantee ceases to be an
employee of the Company, or ceases to serve on the Board of Directors of the
Company, for any reason (voluntary or involuntary) other than death or permanent
long-term disability, then ▇▇▇▇▇▇▇'s rights to all of the unvested Restricted
Stock Units shall be immediately and irrevocably forfeited, including the right
to receive any Additional Restricted Stock Units.
(b) DEATH OR DISABILITY. If Grantee dies while employed by the
Company or its subsidiaries, or if Grantee's employment by the Company or its
subsidiaries is terminated due to Grantee's failure to return to work as the
result of Grantee's Disability (as defined in the Plan), then all unvested
Restricted Stock Units shall become immediately vested, and the restrictions
with respect to all of the Restricted Stock Units shall lapse, as of the date of
such Disability or death. No transfer by will or the applicable laws of descent
and distribution of any Restricted Stock Units that vest by reason of ▇▇▇▇▇▇▇'s
death shall be effective to bind the Company unless the Committee shall
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have been furnished with written notice of such transfer and a copy of the will
or such other evidence as the Committee may deem necessary to establish the
validity of the transfer.
5. RESTRICTION ON TRANSFER. The Restricted Stock Units and any rights
under this Award may not be sold, assigned, transferred, pledged, hypothecated
or otherwise disposed of by Grantee otherwise than by will or by the laws of
descent and distribution, and any such purported sale, assignment, transfer,
pledge, hypothecation or other disposition shall be void and unenforceable
against the Company. Notwithstanding the foregoing, Grantee may, in the manner
established by the Committee, designate a beneficiary or beneficiaries to
exercise the rights of Grantee and receive any property distributable with
respect to the Restricted Stock Units upon the death of Grantee.
6. ADJUSTMENTS TO RESTRICTED STOCK UNITS. Upon or in contemplation of any
reclassification, recapitalization, stock split, reverse stock split or stock
dividend; any merger, combination, consolidation or other reorganization; any
split-up, spin-off, or similar extraordinary dividend distribution in respect of
the Common Stock (whether in the form of securities or property); any exchange
of Common Stock or other securities of the Company, or any similar, unusual or
extraordinary corporate transaction in respect of the Common Stock; or a sale of
substantially all the assets of the Company as an entirety; then the Company
shall, in such manner, to such extent (if any) and at such time as it deems
appropriate and equitable in the circumstances, make adjustments if appropriate
in the number of Restricted Stock Units subject to this Agreement and the number
and kind of securities that may be issued in respect of such Units.
7. INCOME TAX MATTERS.
(a) In order to comply with all applicable federal or state income
tax laws or regulations, the Company may take such action as it deems
appropriate to ensure that all applicable federal or state payroll, withholding,
income or other taxes, which are the sole and absolute responsibility of
Grantee, are withheld or collected from Grantee.
(b) The Company shall reasonably determine the amount of any
federal, state, local or other income, employment, or other taxes which the
Company or any of its affiliates may reasonably be obligated to withhold with
respect to the grant, vesting, or other event with respect to the Restricted
Stock Units. The Company may, in its sole discretion, withhold a sufficient
number of shares of Common Stock in connection with the vesting of the
Restricted Stock Units at the Fair Market Value (as defined in the Plan) of the
Common Stock (determined as of the date of measurement of the amount of income
subject to such withholding) to satisfy the amount of any such withholding
obligations that arise with respect to the vesting of such Restricted Stock
Units. The Company may take such action(s) without notice to the Grantee and
shall remit to the Grantee the balance of any proceeds from withholding such
shares in excess of the amount reasonably determined to be necessary to satisfy
such withholding obligations. The Grantee shall have no discretion as to the
satisfaction of tax withholding obligations in such manner. If, however, any
withholding event occurs with respect to the Restricted Stock Units other than
upon the vesting of such Units, or if the Company for any reason does not
satisfy the withholding obligations with respect to the vesting of the Units as
provided above in this Section 7(b), the Company shall be entitled to require a
cash payment by or on behalf of the Grantee and/or to deduct from other
compensation payable to the Grantee the amount of any such withholding
obligations.
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(c) The Restricted Stock Unit Award evidenced by this Agreement, and
the issuance of shares of Common Stock to the Grantee in settlement of vested
Units, is intended to be taxed under the provisions of Section 83 of the
Internal Revenue Code of 1986, as amended (the "Code"), and is not intended to
provide and does not provide for the deferral of compensation within the meaning
of Section 409A(d) of the Code. Therefore, the Company intends to report as
includible in the Grantee's gross income for any taxable year an amount equal to
the Fair Market Value of the shares of Common Stock covered by the Units that
vest (if any) during such taxable year, determined as of the date such Units
vest. In furtherance of this intended tax treatment, all vested Units shall be
automatically settled and payment to the Grantee shall be made as provided in
Section 1(c) hereof, but in no event later than March 15th of the year following
the calendar year in which such Units vest. The Grantee shall have no power to
affect the timing of such settlement or payment. The Company reserves the right
to amend this Agreement, without the Grantee's consent, to the extent it
reasonably determines from time to time that such amendment is necessary in
order to achieve the purposes of this Section.
8. COMPLIANCE WITH LAWS. The Award and the offer, issuance and delivery of
securities under this Agreement are subject to compliance with all applicable
federal and state laws, rules and regulations (including but not limited to
state and federal securities laws) and to such approvals by any listing,
regulatory or governmental authority as may, in the opinion of counsel for the
Company, be necessary or advisable in connection therewith. The Grantee will, if
requested by the Company, provide such assurances and representations to the
Company as the Company may deem necessary or desirable to assure compliance with
all applicable legal requirements. The Company will cause such action to be
taken, and such filings to be made, so that the grant hereunder shall comply
with the rules of the New York Stock Exchange or the principal stock exchange on
which shares of the Company's Common Stock are then listed for trading.
9. NO AGREEMENT TO EMPLOY. Nothing in this Agreement shall affect any
right with respect to continuance of employment by the Company or any of its
subsidiaries. The right of the Company or any of its subsidiaries to terminate
at will the Grantee's employment at any time (whether by dismissal, discharge or
otherwise), with or without cause, is specifically reserved, subject to any
other written employment agreement to which the Company and Grantee may be a
party.
10. ENTIRE AGREEMENT. This Agreement and the Plan constitute the entire
agreement between the parties with respect to the subject matter hereof and
supersede all prior or contemporaneous written or oral agreements and
understandings of the parties, either express or implied.
11. CONFLICT OF PROVISIONS. The terms contained in the Plan are
incorporated into and made a part of this Agreement and this Agreement shall be
governed by and construed in accordance with the Plan. In the event of any
actual or alleged conflict between the provisions of the Plan and the provisions
of this Agreement, the provisions of the Plan shall be controlling and
determinative.
12. ASSIGNMENT. Grantee shall have no right, without the prior written
consent of the Company, to (i) sell, assign, mortgage, pledge or otherwise
transfer any interest or right created hereby, or (ii) delegate his or her
duties or obligations under this Agreement. This Agreement is made solely for
the benefit of the parties hereto, and no other person, partnership, association
or corporation shall acquire or have any right under or by virtue of this
Agreement.
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13. "MARKET STAND-OFF" AGREEMENT. Grantee agrees that, if requested by the
Company or the managing underwriter of any proposed public offering of the
Company's securities (including any acquisition transaction where Company
securities will be used as all or part of the purchase price), Grantee will not
sell or otherwise transfer or dispose of any shares of Common Stock held by
Grantee without the prior written consent of the Company or such underwriter, as
the case may be, during such period of time, not to exceed 180 days following
the effective date of the registration statement filed by the Company with
respect to such offering, as the Company or the underwriter may specify.
14. SEVERABILITY. Should any provision or portion of this Agreement be
held to be unenforceable or invalid for any reason, the remaining provisions and
portions of this Agreement shall be unaffected by such holding.
15. NOTICES. All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given and effective (i) when delivered by hand, (ii)
when otherwise delivered against receipt therefor, or (iii) three (3) business
days after being mailed if sent by registered or certified mail, postage
prepaid, return receipt requested. Any notice shall be addressed to the parties
as follows or at such other address as a party may designate by notice given to
the other party in the manner set forth herein:
(a) if to the Company:
CKE Restaurants, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇. A
Carpinteria, CA 93013
Attention: Chief Financial Officer
(b) if to the Grantee, at the address shown on the signature page of
this Agreement or at his most recent address as shown in the employment or stock
records of the Company.
16. APPLICABLE LAW. This Agreement shall be construed in accordance with
the laws of the State of California without reference to choice of law
principles, as to all matters, including, but not limited to, matters of
validity, construction, effect or performance.
17. NUMBER AND GENDER. Where the context requires, the singular shall
include the plural, the plural shall include the singular, and any gender shall
include all other genders.
18. SECTION HEADINGS. The section headings of, and titles of paragraphs
and subparagraphs contained in, this Agreement are for the purpose of
convenience only, and they neither form a part of this Agreement nor are they to
be used in the construction or interpretation thereof.
19. MODIFICATIONS. This Agreement may not be amended, modified or changed
(in whole or in part), except by a written agreement expressly referring to this
Agreement, which agreement is executed by both of the parties hereto.
Notwithstanding the foregoing, amendments made pursuant to Section 7(c) hereof
may be effectuated solely by the Company.
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20. WAIVER. Neither the failure nor any delay on the part of a party
to exercise any right, remedy, power or privilege under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, power or privilege preclude any other or further exercise of the
same or of any right, remedy, power or privilege, nor shall any waiver of any
right, remedy, power or privilege with respect to any occurrence be construed as
a waiver of such right, remedy, power or privilege with respect to any other
occurrence. No waiver shall be effective unless it is in writing and is signed
by the party asserted to have granted such waiver.
21. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one agreement and any
party hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be binding upon Grantee and the Company at such time as the
Agreement, in counterpart or otherwise, is executed by Grantee and the Company.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
THE COMPANY: GRANTEE:
CKE RESTAURANTS, INC.
By:
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Name:
------------------------------ -------------------------------------
(Print Name)
Title:
------------------------------
Address:
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CONSENT AND RATIFICATION OF SPOUSE
The undersigned, the spouse of _____________________, a party to the
attached Restricted Stock Unit Award Agreement (the "Agreement"), dated as of
_______________, hereby consents to the execution of said Agreement by such
party; and ratifies, approves, confirms and adopts said Agreement, and agrees to
be bound by each and every term and condition thereof as if the undersigned had
been a signatory to said Agreement, with respect to the Restricted Stock Units
(as defined in the Agreement) made the subject of said Agreement in which the
undersigned has an interest, including any community property interest therein.
I also acknowledge that I have been advised to obtain independent counsel
to represent my interests with respect to this Agreement but that I have
declined to do so and I hereby expressly waive my right to such independent
counsel.
Date:
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(Signature)
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(Print Name)
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