Exhibit
10.1
LUBY’S,
INC.
INCENTIVE
STOCK PLAN
RESTRICTED
STOCK AWARD AGREEMENT
THIS
RESTRICTED STOCK AWARD AGREEMENT,
dated as of
DATE
(the “Award Agreement”),
is entered into by and between by
LUBY’S, INC.
(the "Company")
and
EMPLOYEE
(the "Grantee"), upon the
following terms and conditions:
1.
Grant.
Company
hereby grants
______
s
hares of
Restricted Stock
(the
“Restricted Stock”) as of
DATE
(the
“Award Date”) subject to the restrictions set forth
in this Award Agreement and
subject to all applicable provisions of the Luby’s Incentive Stock Plan (The
“Plan”), as it may be amended from time to time, which provisions are
incorporated by reference and made a part hereof to the same extent as if set
forth in their entirety herein, and to such other terms necessary or appropriate
to the grant hereof having been made. Each share of Restricted Stock
corresponds to one (1) share of Common Stock, par value $0.32 per share ("Common
Stock"), of the Company.
2.
Restrictions
on Transfer
. Except as otherwise provided herein, Restricted
Stock granted hereunder shall become unrestricted on the third anniversary
of
the Award Date. (“Lapse Date”). None of the Restricted
Stock may be sold, transferred, pledged, hypothecated or otherwise encumbered
or
disposed of until the restrictions have lapsed in accordance with this Award
Agreement. Except as provided in Section 6, all Restricted Stock
to which restrictions have not yet lapsed shall be forfeited to the Company
immediately upon Termination of Grantee’s Employment.
3.
Rights
as Stockholder
. Grantee shall have no rights as a stockholder with
respect to any Restricted Stock until a stock certificate for the shares is
issued in Grantee’s name. Once any such stock certificate is issued in Grantee’s
name, Grantee shall be entitled to all rights associated with ownership of
the
Restricted Stock, except that the Restricted Stock will remain subject to the
restrictions set forth herein and if any additional shares of Common Stock
become issuable on the basis of such Restricted Stock (e.g., a stock dividend),
any such additional shares shall be subject to the same restrictions as the
shares of Restricted Stock to which they relate. Each stock certificate
evidencing any Restricted Stock shall contain such legends and stock transfer
instructions or limitations as may be determined or authorized by the Committee
which administers the Plan (the “Committee”) in its sole discretion; and the
Company may, in its sole discretion, retain custody of any such certificate
throughout the period during which any restrictions are in effect and require,
as a condition to issuing any such certificate, that the Grantee tender to
the
Company a stock power duly executed in blank relating thereto. Any
dividends payable on the Restricted Stock shall be paid in cash to Grantee
on
the day on which the corresponding cash dividends are paid to shareholders
of
record, or as soon as administratively practicable thereafter, but in no event
later than the fifteenth (15
th
) day of
the third
calendar month following the day on which such cash dividends are paid to
shareholders of record.
4.
Adjustments.
In
the event of any change in the outstanding Common Stock by reason of a stock
split, stock dividend, combination or reclassification of shares,
recapitalization, merger, or similar event, the Committee may adjust
proportionally the number of shares of Restricted Stock. In the event
of any other change affecting the Common Stock or any distribution (other than
normal cash dividends) to holders of Common Stock, such adjustments as may
be
deemed equitable by the Committee, including adjustments to avoid fractional
shares, may be made to give proper effect to such event.
5.
Non-Assignability.
No
benefit payable under, or interest in, this Award Agreement or in the shares
of
Common Stock to be issued to Grantee hereunder shall be subject in any manner
to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
or
charge and any such attempted action shall be void and no such benefit or
interest shall be, in any manner, liable for, or subject to, Grantee’s or
Grantee’s beneficiary’s debts, contracts, liabilities or torts; provided,
however, nothing in this Section shall prevent transfer (i) by will,
(ii) by applicable laws of descent and distribution or (iii) to an
alternate payee to the extent that a Qualified Domestic Relations Order so
provides, as further described in the Plan.
6.
Continuous
Employment
. If Grantee’s employment with the Company or an
Affiliate of the Company is terminated for any reason, except as provided below,
Grantee’s Restricted Stock shall automatically expire and terminate, and shall
be forfeited to the Company, on the date of Termination of Grantee’s
Employment. Notwithstanding anything herein to the contrary, the
Lapse Date of the Restricted Stock may be accelerated (by notice in writing)
by
the Company in its sole discretion at any time. “Termination of
Grantee’s Employment” shall mean the last date that Grantee is either an
employee of the Company or an Affiliate or engaged as a consultant or director
of the Company or an Affiliate.
(a)
Retirement
. If
Grantee terminates Grantee’s employment with the Company or an Affiliate of the
Company by retirement on or after Grantee's 65th birthday, then the Lapse Date
of the Restricted Stock granted under this Award Agreement shall be accelerated
as of the day preceding Grantee’s retirement, subject to Grantee’s execution of
a general release and waiver in a form provided by the Company.
(b)
Death
. If
Grantee’s employment with the Company or an Affiliate of the Company terminates
due to Grantee’s death, then the Lapse Date of the Restricted Stock granted
under this Award Agreement will become unrestricted as of the day preceding
Grantee’s death.
(c)
Permanent
and Total Disability
. If Grantee’s employment with the
Company or an Affiliate of the Company terminates due to Grantee’s Permanent and
Total Disability, and Grantee has been employed by Company for at least 3 years,
then the Lapse Date of the Restricted Stock granted under this Award Agreement
will be accelerated, as of the date preceding the termination of Grantee’s
employment, subject to execution by Grantee of a general release and waiver
in a
form provided by the Company.
“Permanent
and Total Disability” shall have the meaning ascribed to such term under
Section 22(e)(3) of the Internal Revenue Code of 1986, as amended (together
with the regulations and other official guidance promulgated thereunder, the
“Code”), and with such permanent and total disability being certified prior to
termination of Grantee’s employment by (i) the Social Security
Administration, (ii) such other body having the relevant decision-making
power applicable to the Company (such as an insurance carrier), or (iii) an
independent medical advisor appointed by the Company in its sole discretion,
as
applicable.
(d)
Leave
of Absence
. Lapse Date may be suspended by the Company in
its sole discretion during a leave of absence by Grantee as provided from time
to time according to Company policies and practices.
(e)
Change
of Control
. All Restricted Stock shall become immediately
unrestricted upon a Change of Control, as defined in the Plan. If, on the date
of termination of Grantee's employment with the Company or an affiliate of
the
Company, Grantee is entitled to rights or benefits under a written Change of
Control Agreement with the Company containing provisions relating to Restricted
Stock which are more favorable to Grantee than those contained in this Award
Agreement, the provisions of such Change of Control Agreement shall
prevail.
7.
Disputes
. If
the employment of Grantee shall terminate prior to the Lapse Date of the
Restricted Stock, and there exists a dispute between Grantee and the Company
as
to the satisfaction of the conditions of this Award Agreement, the Restricted
Stock shall remain subject to the restrictions contained herein until the
resolution of such dispute, regardless of any intervening expiration of the
restrictions, except that any dividends that may be payable to the holders
of
record of shares of Common Stock as of a date during the period from termination
of Grantee's employment to the resolution of such dispute (the "Suspension
Period") shall:
(1) to
the extent to which such dividends would have been payable to Grantee on the
shares of Restricted Stock, be held by the Company as part of its general funds,
and shall be paid to or for the account of Grantee only upon, and in the event
of, a resolution of such dispute in a manner favorable to Grantee, and then
only
with respect to such of the shares as to which such resolution shall be so
favorable, and
(2) be
canceled upon, and in the event of, a resolution of such dispute in a manner
unfavorable to Grantee, and then only with respect to such of the shares as
to
which such resolution shall be so unfavorable.
8.
Form
and Timing of Payment.
Restricted Stock shall be paid by the
Company in shares of Common Stock (on a one-to-one basis) on, or as soon as
practicable after, the Lapse Date of the Restricted Stock has passed (which,
for
purposes of this Section, includes the date of any acceleration as referenced
in
Section 6), but in any event, within the period ending on the later to occur
of
the date that is 2
1
/2 months
from
the end of (i) Grantee’s tax year that includes the Lapse Date of the
Restricted Stock, or (ii) the Company’s tax year that includes the
applicable Lapse Date of the Restricted Stock (which payment schedule is
intended to comply with the “short-term deferral” exemption from the application
of Section 409A of the Code). Shares of Common Stock issued that become
unrestricted shall be deemed to be issued in consideration of past services
actually rendered by Grantee to the Company or an Affiliate or for its benefit
for which Grantee has not previously been compensated or for future services
to
be rendered, as the case may be, which the Company deems to have a value at
least equal to the aggregate par value thereof.
9.
Tax
Withholding.
All payments or grants made pursuant to this
Award Agreement shall be subject to withholding of all applicable taxes, based
on the minimum statutory withholding rates for federal, state and local tax
purposes, including any employment taxes resulting from the lapsing of the
restrictions (the “Tax Obligations”). In the event that Company
requests Grantee to do so, Grantee hereby agrees that Grantee will satisfy
the
Tax Obligations resulting from the lapsing of the restrictions by authorizing,
and Grantee hereby authorizes, the Company to withhold from the shares of Common
Stock otherwise deliverable to Grantee as a result of the lapsing of the
restrictions in accordance herewith, a number of shares having a fair market
value less than or equal to the Tax Obligations. Any shares of Common Stock
withheld by the Company hereunder shall not be deemed to have been issued by
the
Company for any purpose under the Plan and shall remain available for issuance
thereunder.
The
number of shares of Common Stock tendered by Grantee pursuant to this Section
shall be determined by the Company and be valued at the fair market value of
the
Common Stock on the date the Tax Obligations arise. To the extent that the
number of shares tendered by Grantee pursuant to this Section is insufficient
to
satisfy the Tax Obligations, Grantee hereby authorizes the Company to deduct
from Grantee’s compensation the additional amount necessary to fully satisfy the
Tax Obligations. If the Company chooses not to deduct such amount from Grantee’s
compensation, Grantee agrees to pay the Company, in cash or by check, the
additional amount necessary to fully satisfy the Tax Obligations. Grantee agrees
to take any further actions and execute any additional documents as may be
necessary to effectuate the provisions of this Section. No certificates
representing the shares of Common Stock shall be delivered to Grantee unless
and
until Grantee has satisfied Grantee’s obligations with respect to the full
amount of all federal, state and local tax withholding or other employment
taxes
applicable to Grantee resulting from the payment of the Restricted Stock
earned.
10.
Section
83(b) Election
. Under Section 83 of the Code, the difference
between the purchase price paid by the Grantee for the Restricted Stock, if
any,
and their fair market value on the Lapse Date of the Restricted Stock, will
be
reportable as ordinary income at that time. Grantee may elect to be taxed on
the
Award Date with respect to Restricted Stock rather than when such restrictions
lapse by filing an election under Section 83(b) of the Code in a form similar
to
that set forth in Exhibit A hereto with the Internal Revenue Service within
30 days after the Award Date. Failure to make this filing within the 30-day
period will result in the recognition of ordinary income by Grantee (in the
event the Fair Market Value of the shares increases after the Award Date) as
the
forfeiture restrictions lapse.
GRANTEE
ACKNOWLEDGES THAT IT IS HIS OR HER SOLE RESPONSIBILITY, AND NOT THE COMPANY’S,
TO FILE A TIMELY ELECTION UNDER SECTION 83(b), EVEN IF GRANTEE REQUESTS THE
COMPANY OR ITS REPRESENTATIVES TO MAKE THIS FILING ON GRANTEE’S BEHALF. GRANTEE
IS RELYING SOLELY ON HIS OR HER OWN ADVISORS WITH RESPECT TO THE DECISION AS
TO
WHETHER OR NOT TO FILE ANY 83(b) ELECTION.
11.
Award
Agreement Subject to Plan
. This Award Agreement is
subject to the Plan. The terms and provisions of the Plan
(including any subsequent amendments thereto) are hereby incorporated
herein by reference thereto. In the event of a conflict between any
term or provision contained herein and a term or provision of the Plan, the
applicable terms and provisions of the Plan will govern and
prevail. All definitions of words and terms contained in the
Plan shall be applicable to this Award Agreement.
12.
No
Retention Rights
. Nothing herein contained shall confer on the Grantee
any right with respect to continuation of employment, or interfere with the
right of the Company or its Affiliates to terminate at any time the service
of
the Grantee. Any questions as to whether and when there has been a
termination of Grantee's employment, and the cause of such termination, shall
be
determined by the Committee, and its determination shall be final.
13.
Applicable
Law
. The validity, construction, interpretation and enforceability of
this Award Agreement shall be determined and governed by the laws of the State
of Texas without regard to any conflicts or choice of law rules or principles
that might otherwise refer construction or interpretation of this Award
Agreement to the substantive law of another jurisdiction, and any litigation
arising out of this Award Agreement shall be brought in Harris County,
Texas.
14.
Severability
.
The provisions of this Award Agreement are severable and if any one or more
provisions may be determined to be illegal or otherwise unenforceable, in whole
or in part, the remaining provisions, and any partially unenforceable provision
to the extent enforceable in any jurisdiction, shall nevertheless be binding
and
enforceable.
15.
Waiver
.
The waiver by the Company of a breach of any provision of this Award Agreement
by Grantee shall not operate or be construed as a waiver of any subsequent
breach by Grantee.
16.
Binding
Effect
. The provisions of this Award Agreement shall be binding upon
the parties hereto, their successors and assigns, including, without limitation,
the Company, its successors or assigns, the estate of the Grantee and the
executors, administrators or trustees of such estate and any receiver, trustee
in bankruptcy or representative of the creditors of the Grantee.
17.
Entire
Agreement; Amendment
. This Award Agreement and any other
agreements and instruments contemplated by this Award Agreement contain the
entire agreement of the parties, and this Award Agreement may be amended only
in
writing signed by both parties.
18.
Notices.
Any
notice hereunder by the holder of this Option shall be given to the Company
in
writing and such notice and any payment hereunder shall be deemed duly given
or
made only upon receipt thereof at the Company's principal office in Houston,
Texas, or at such other place as the Company may designate by written notice
to
the holder of this Option. Any notice or other communication
hereunder to the holder of this Option shall be in writing and shall be deemed
duly given if mailed or delivered to the holder at such address as he may have
on file with the Company.
IN
WITNESS WHEREOF, the Company has caused this Award Agreement to be executed
in
duplicate and its corporate seal to be hereunto affixed by its proper corporate
officers thereunto duly authorized.
ATTEST:
LUBY'S, INC.
ACCEPTED:
Grantee
Exhibit
10.2
LUBY’S,
INC.
INCENTIVE
STOCK OPTION
GRANTED
UNDER LUBY’S INCENTIVE STOCK PLAN
Name
of Employee
:
Date
of Grant:
Number
of Option Shares:
Option
Price per Share:
THIS
OPTION is granted on the above
date (the "Date of Grant") by Luby's, Inc. (the "Company") to the person named
above (the "Employee"), upon the following terms and conditions:
1.
Grant
of Option.
The Company grants to the Employee an option to
purchase, on the terms and conditions stated herein, the number of shares
specified above (the "Option Shares") of the Company's Common Stock, par value
$0.32 per share (“Common Stock”) at the Option Price specified
above.
2.
Type
of Option.
This Option is granted under the Luby’s Incentive
Stock Plan (the "Plan") and shall be subject to all applicable provisions of
the
Plan, as it may be amended from time to time. This Option is an
"incentive stock option" as defined in Section 422 of the Internal Revenue
Code
and is intended to conform to the requirements of Section 422 of the Internal
Revenue Code and to the provisions of the Plan. The terms "parent
corporation" and "subsidiary corporation" have the meanings given to them by
Section 424 of the Internal Revenue Code. All section references to
the Internal Revenue Code are intended to include any future amendments or
substitutions therefor in the Code.
3.
Continuous
Employment.
This Option may be exercised by the Employee
only if, at all times from the Date of Grant to the date of such exercise,
the
Employee was an employee of the Company or a parent or subsidiary of the Company
or another corporation referred to in Section 422 of the Internal Revenue Code,
unless such continuous employment is terminated by such employer, or by
retirement, or by disability, or is otherwise terminated with the written
consent of the employer. If such continuous employment is so
terminated, this Option may be exercised, to the extent the Option was
exercisable on the date of termination of employment, within one year after
such
termination of employment, but in no event later than the termination date
of
this Option. Termination of employment shall mean the last date that
Grantee is either an employee of the Company or an Affiliate or engaged as
a
consultant or director of the Company or an Affiliate. Retirement
means retirement on or after the Employee's 65th birthday. Disability
means a disability which qualifies the Employee for benefits under a long-term
disability program maintained by the Company or a subsidiary of the
Company.
4.
Death
of Employee.
If the Employee dies at a time when any portion
of this Option is exercisable by him, this Option may be exercised as to such
portion within one year after the date of death, by the person or persons to
whom his rights under this Option shall have passed by will or by the laws
of
descent and distribution, but in no event later than the termination date of
this Option.
5.
Period
of Option and Right to Exercise.
The term of this Option
is ten years from the Date of Grant. The termination date of
this Option is the day preceding the tenth anniversary of the Date of
Grant. This Option may not, in any event, be exercised prior to the
first anniversary of the Date of Grant or subsequent to the expiration date
of
this Option. Subject to the provisions of paragraphs 3 and 4 above,
this Option shall become exercisable as to one-fourth of the total number of
Option Shares on each succeeding anniversary of the Date of
Grant. Once the right to purchase shares has accrued, such shares may
thereafter be purchased at any time, or in part from time to time, until the
expiration date of this Option, subject to the provisions of paragraphs 3 and
4
above and paragraph 6 below. In no case may this Option be exercised
for a fraction of a share.
6.
Payment
for Shares.
Payment for shares purchased upon exercise of
this Option shall be made in full at the time of exercise of the
Option. No loan shall be made or guaranteed by the Company for the
purpose of financing the purchase of any optioned shares. Payment of
the Option Price shall be made in cash or may be made by delivering Common
Stock
of the Company having a fair market value at least equal to the Option Price,
or
a combination of Common Stock and cash. Such fair market value shall
be determined by the closing price of the Common Stock on the New York Stock
Exchange on the date on which this Option is exercised or, if no sale of the
Common Stock shall have been made on the Exchange on that day, then on the
next
following day for which there is a reported sale.
7.
Method
of Exercise.
This Option may be exercised only by written
notice given to the Company, in form satisfactory to the Company, specifying
the
number of Option Shares which the holder of the Option elects to purchase,
the
number of Option Shares which the holder is paying for in cash and the number
of
Option Shares which the holder is paying for in shares of Common
Stock. Such written notice and any subsequent exercise is subject to
Company approval, as well as all policies and procedures in place at Company,
including but not limited to Stock Trading Policies and Blackout
Restrictions. Such written notice shall be accompanied by a check
payable to the order of the Company for the cash portion of the purchase price
and, if applicable, by the delivery of certificates representing shares of
Common Stock duly endorsed and otherwise in proper form for transfer to the
Company of such number of shares of Common Stock as are required to equal the
fair market value of the Option Shares being paid for in stock. Upon
each exercise of this Option, the Company, as promptly as practicable, will
mail
or deliver to the person exercising this Option a certificate or certificates
representing the shares then purchased. The Company, in its
discretion, may postpone the issuance and delivery of shares upon any exercise
of this Option until completion of such stock exchange listing, or registration
or other qualification, of such shares under any Federal or state law, rule
or
regulation as the Company may consider appropriate. The Company may
require any person exercising this Option to make such representations and
furnish such information as the Company may consider appropriate in connection
with the issuance of the shares in compliance with applicable law.
8.
Limitations
on Transfer and Exercise.
This Option is not transferable by
the Employee other than by will or by the laws of descent and distribution,
and
this Option is exercisable during the lifetime of the Employee, only by
him.
9.
Adjustments.
In
the event of any change in the outstanding Common Stock by reason of a stock
split, stock dividend, combination or reclassification of shares,
recapitalization, merger, or similar event, the committee which administers
the
plan (the “Committee”) may adjust proportionally the number of Option Shares and
the Option Price. In the event of any other change affecting the
Common Stock or any distribution (other than normal cash dividends) to holders
of Common Stock, such adjustments as may be deemed equitable by the Committee,
including adjustments to avoid fractional shares, may be made to give proper
effect to such event. In the event of a corporate merger,
consolidation, acquisition of property or stock, separation, reorganization
or
liquidation, the Committee shall be authorized to issue and substitute a new
stock option for this Option.
10.
Consideration
for Grant.
Although this Option may be exercised only if
employment is continuous as provided in Section 3 hereof, it is understood
that
such employment shall, subject to the terms of any employment contract, be
at
the pleasure of the employer and at such compensation as the employer shall
reasonably determine from time to time. Nothing in the Plan or in
this Option shall confer on the Employee any right to continue in the employment
of the Company or any of its affiliates or to interfere in any way with the
right of the Company or its affiliates to terminate his or her employment at
any
time.
11.
Amendment,
Modification, Suspension, or Discontinuance of the Plan.
The
Board of Directors of the Company (the “Board”) may amend, modify, suspend, or
terminate the plan for the purpose of meeting or addressing any changes in
legal
requirements or for any other purpose permitted by law. Subject to
changes in the law or other legal requirements that would permit otherwise,
the
Plan may not be amended without the consent of the holders of
a majority of the shares of Common Stock then outstanding (i) to
increase the aggregate number of shares of Common Stock that may be issued
under
the Plan (except for adjustments pursuant to the Plan), (ii) to decreased the
Option Price, (iii) to materially modify the requirements as to eligibility
for
participation in the Plan, (iv) to withdraw administration of the Plan from
the
Committee, or (v) to extend the period during which awards may be granted under
the Plan.
12.
Change
of Control.
Should a “change in control” of the Company
occur of a nature that would be required to be reported in response to Item
1 of
Form 8-K promulgated under the Securities Exchange Act of 1934 as that
requirement exists on the Date of Grant, then, upon the occurrence of, and
on
the date of said change in control, notwithstanding anything elsewhere herein
contained, this Option shall become exercisable in full.
13.
Change
in Control Agreement.
If, on the date of termination of
Employee’s employment with the Company or an affiliate of the Company, Employee
is entitled to rights or benefits under a written Change of Control Agreement
with the Company containing provisions relating to stock options which are
more
favorable to Employee than those contained in this Option, the provisions of
such Change of Control Agreement shall prevail.
14.
Administration
and Interpretation.
The Plan shall be administered by the
Committee, which shall have full and exclusive power to interpret the Plan,
to
grant waivers of restrictions, and to adopt such rules, regulations, and
guidelines for carrying out the Plan as it may deem necessary or
proper. All questions of interpretation and administration with
respect to the Plan and this Option shall be determined by the Committee, and
its determination shall be final and conclusive.
15.
Notices.
Any
notice hereunder by the holder of this Option shall be given to the Company
in
writing and such notice and any payment hereunder shall be deemed duly given
or
made only upon receipt thereof at the Company's principal office in Houston,
Texas, or at such other place as the Company may designate by written notice
to
the holder of this Option. Any notice or other communication
hereunder to the holder of this Option shall be in writing and shall be deemed
duly given if mailed or delivered to the holder at such address as he may have
on file with the Company.
16.
Shareholder
Rights.
The holder of this Option shall have no rights as a
shareholder with respect to any Option Shares until the holder of this Option
or
his nominee becomes a shareholder of record with respect to such
shares.
17.
Withholding.
The
holder of this Option may be required to pay any taxes which must be withheld
prior to receipt of any Option Shares hereunder
IN
WITNESS WHEREOF, the Company has
caused this Option to be executed in duplicate and its corporate seal to be
hereunto affixed by its proper corporate officers thereunto duly
authorized.
ATTEST:
LUBY'S,
INC.
SecretaryTitle
By:
ACCEPTED:
Employee