UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(D) OF THE

SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): January 8, 2013

 

 

F AMOUS D AVE S OF A MERICA , I NC .

(Exact name of registrant as specified in its charter)

 

 

 

Minnesota   0-21625   41-1782300

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

12701 Whitewater Drive, Suite 200,

Minnetonka, MN

  55343
(Address of principal executive offices)   (Zip Code)

(952) 294-1300

(Registrant’s telephone number, including area code)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


Item 5.02. Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensatory Arrangements of Certain Officers.

Performance Share Agreements

On January 8, 2013, the Company granted executive officers the right to receive a number of shares of the Company’s common stock (the “ Performance Shares ”), following the filing of the Company’s Annual Report on Form 10-K for fiscal 2015, based on the extent to which the Company achieves Adjusted EBITDA goals during fiscal 2013, 2014 and 2015 (the sum of the Adjusted EBITDA goals for fiscal 2013, 2014 and 2015 are referred to as the “ Cumulative Adjusted EBITDA Goal ”). These Performance Shares were granted under the Company’s Amended and Restated 2005 Stock Incentive Plan and the grants are collectively referred to as the 2013-2015 Performance Share Program. For purposes of these awards, “ Adjusted EBITDA ” means income from operations of the Company, plus depreciation, and amortization, and non-cash adjustments (such as asset impairment, lease termination and other closing costs) and other non-cash items as approved by the Company’s Compensation Committee, and subject to adjustment by the Compensation Committee in its sole discretion for non-recurring items.

Holders of Performance Shares will not be entitled to receive shares of the Company’s common stock unless the cumulative Adjusted EBITDA amount achieved by the Company during fiscal 2013-2015 equals or exceeds the cumulative Adjusted EBITDA amount achieved by the Company during three preceding years (fiscal 2012-2014), subject to any adjustments for nonrecurring events that the Compensation Committee may determine in its sole discretion are appropriate (the “ Cumulative Adjusted EBITDA Threshold ”). If the Cumulative Adjusted EBITDA Threshold is achieved, holders of Performance Shares will be entitled to receive a percentage of the “Target Shares” amount identified opposite his or her name on Exhibit 10.2 to this Current Report on Form 8-K that is equal to the percentage of the Cumulative Adjusted EBITDA Goal achieved by the Company, as set forth on the following schedule:

 

Company Performance

  

Performance Shares to which Employee is Entitled

If the Company fails to achieve the Cumulative Adjusted EBITDA Threshold, then:    Employee shall not be entitled to receive Performance Shares.
If the Company achieves the Cumulative Adjusted EBITDA Threshold, but less than or equal to 100% of the Cumulative Adjusted EBITDA Goal, then:    Employee shall be entitled to receive a percentage of the “Target Shares” amount equal to the percentage of the Cumulative Adjusted EBITDA Goal achieved (e.g., if the Company achieves 95% of the Cumulative Adjusted EBITDA Goal, then Employee is entitled to receive 95% of his or her “Target Shares” amount – assuming that the Cumulative Adjusted EBITDA Threshold has been met).

The Performance Share grants for each recipient are also contingent upon the recipient remaining an employee of the Company until the filing of the Annual Report on Form 10-K for fiscal 2015.

The Adjusted EBTIDA goal for each fiscal year will be determined by the Compensation Committee during the first fiscal quarter of the applicable fiscal year. The actual Adjusted EBTIDA for each fiscal year shall be equal to the Adjusted EBITDA amount for such fiscal year as publicly disclosed by the Company or, if not publicly disclosed, as determined in good faith by the Company’s Board of Directors or the Committee. The determination regarding whether the Company has achieved the Cumulative Adjusted EBITDA Goal will be made upon filing of the Annual Report on Form 10-K for fiscal 2015 (the “ Vesting Date ”). Performance Shares will be issued on the Vesting Date, as provided above, if at least the Cumulative Adjusted EBITDA Threshold is achieved. No partial issuance of Performance Shares shall be made if an Adjusted EBITDA goal is achieved in any one or more fiscal years but the Cumulative Adjusted EBITDA Threshold is not achieved.


The form of 2013-2015 Performance Share Agreement utilized in connection with grants under the 2013-2015 Performance Share Program and a schedule of grants to executive officers made under the form of 2013-2015 Performance Share Agreement are filed as Exhibits 10.1 and 10.2 to this Current Report on Form 8-K, respectively.

Performance Stock Unit Agreements

Also on January 8, 2013, the Company granted executive officers restricted stock units (“ Performance Stock Units ”) that entitle the holder to receive the cash value of one share of the Company’s common stock for each Unit granted, subject to the Company achieving Adjusted EBITDA goals during fiscal 2013, 2014 and 2015. If earned, the Company will make the cash payments following the filing of the Company’s Annual Report on Form 10-K for fiscal 2015. Similar to the Performance Shares, holders of Performance Stock Units will not be entitled to receive any cash payments unless the cumulative Adjusted EBITDA amount achieved by the Company during fiscal 2013-2015 equals or exceeds the Cumulative Adjusted EBITDA Threshold. If the Cumulative Adjusted EBITDA Threshold is achieved, the Performance Stock Units will vest with respect to a percentage of Units equal to the percentage of the Cumulative Adjusted EBITDA Goal achieved. For each vested Unit, the holder will be entitled to receive the cash value of one share of the Company’s common stock. The right of a Performance Stock Unit holder to receive cash payments is also contingent upon the recipient remaining an employee of the Company until the filing of the Annual Report on Form 10-K for fiscal 2015.

Similar to Performance Shares, the Adjusted EBTIDA goal for each fiscal year will be determined by the Compensation Committee during the first fiscal quarter of the applicable fiscal year. The actual Adjusted EBTIDA for each fiscal year shall be equal to the Adjusted EBITDA amount for such fiscal year as publicly disclosed by the Company or, if not publicly disclosed, as determined in good faith by the Company’s Board of Directors or the Committee. The determination regarding whether the Company has achieved the Cumulative Adjusted EBITDA Goal will be made upon filing of the Annual Report on Form 10-K for fiscal 2015 (the “ Vesting Date ”). Cash payments in respect of vested Units will be made as soon as administratively practicable following the Vesting Date. Holders will not be entitled to any partial cash payment if an Adjusted EBITDA goal is achieved in any one or more fiscal years but the Cumulative Adjusted EBITDA Threshold is not achieved.

The form of Performance Stock Unit Agreement and a schedule of grants to executive officers made under the form of Performance Stock Unit Agreement are filed as Exhibits 10.3 and 10.4 to this Current Report on Form 8-K, respectively.

Restricted Stock Agreement

Pursuant to the terms of the Company’s employment arrangement with John Gilbert, the Company is required to issue to Mr. Gilbert shares of restricted common stock having a value equal to $80,000 (based on the closing price of the Company’s common stock on December 31, 2013) on or around the first business day of the Company’s fiscal year. In accordance with this obligation, the Company issued 8,705 shares of restricted stock to Mr. Gilbert on January 8, 2013. These shares are subject to transfer and forfeiture restrictions that lapse in five equal annual installments on December 31, 2013, 2014, 2015, 2016 and 2017.

The form of Restricted Stock Agreement utilized for this award was previously filed as Exhibit 10.3 to the Current Report on Form 8-K filed with the Securities and Exchange Commission on October 9, 2012.


Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

 

10.1    Form of 2013-2015 Performance Share Agreement
10.2    Schedule of grants made under the Form of 2013-2015 Performance Share Agreement
10.3    Form of Performance Stock Unit Agreement
10.4    Schedule of grants made pursuant to the Performance Stock Unit Agreement


SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

    FAMOUS DAVE’s OF AMERICA, I NC .
Date: January 8, 2013     By:   /s/ Diana G. Purcel
      Name: Diana G. Purcel
      Title:   Chief Financial Officer and Secretary


Exhibit Index

 

Exhibit No.

  

Description

10.1    Form of 2013-2015 Performance Share Agreement
10.2    Schedule of grants made under the Form of 2012-2014 Performance Share Agreement
10.3    Form of Performance Stock Unit Agreement
10.4    Schedule of grants made pursuant to the Performance Stock Unit Agreement

Exhibit 10.1

FAMOUS DAVE’S OF AMERICA, INC.

PERFORMANCE SHARE AGREEMENT

(2013-2015 Awards)

PERFORMANCE SHARE AGREEMENT (the “Agreement”) made effective as of January 8, 2013 by and between Famous Dave’s of America, Inc., a Minnesota corporation, having a place of business at 12701 Whitewater Drive, Suite 200, Minnetonka, MN 55343 (the “Company”), and                      (“Employee”).

WITNESSETH:

WHEREAS, the Company has adopted the Famous Dave’s of America, Inc. Amended and Restated 2005 Stock Incentive Plan (the “Plan”) to increase shareholder value and to advance the interests of the Company by furnishing a variety of economic incentives designed to attract, retain and motivate employees; and

WHEREAS, the Compensation Committee of the Board of Directors of the Company (or, if applicable, a stock plan or similar subcommittee thereof ) (the “Committee”) believes that entering into this Agreement with Employee is consistent with the stated purposes for which the Plan was adopted.

NOW, THEREFORE, it is agreed as follows:

 

1. Grant of Stock.

Subject to the terms and provisions of this Agreement and the Plan, the Company hereby grants to Employee an award to be paid in shares of the Company’s common stock, $0.01 par value per share (the “Performance Shares”), on the Vesting Date identified in Exhibit A attached hereto. The number of Performance Shares granted pursuant to this award is set forth in Exhibit A and issuance by the Company of such Performance Shares (i) is contingent upon the Company achieving the performance objectives set forth in Exhibit A ; and (ii) is subject to the other terms and conditions and contingencies set forth in such Exhibit and in the Plan.

 

2. Rights of Employee.

Employee shall not have any of the rights of a shareholder with respect to the Performance Shares except to the extent that such Performance Shares are issued to Employee in accordance with the terms and conditions of this Agreement and the Plan.

 

3. The Plan.

The Performance Share award is granted pursuant to the Plan (including without limitation Section 6 thereof) and is governed by the terms thereof, which are incorporated herein by reference. In the event of any conflict or inconsistency between the provisions of this Agreement and those of the Plan, the provisions of the Plan shall govern and control.

 

4. Administration.

This Agreement shall at all times be subject to the terms and conditions of the Plan. The Committee shall have the sole and complete discretion with respect to all matters reserved to it by the Plan and decisions of the Committee with respect thereto and to this Agreement shall be final and binding upon Employee. In the event of any conflict between the terms and conditions of this Agreement and the Plan, the provisions of the Plan shall govern and control.


5. No Right to Continuation of Employment or Corporate Assets.

Nothing contained in this Agreement shall be deemed to grant Employee any right to continue in the employ of the Company for any period of time or to any right to continue his or her present or any other rate of compensation, nor shall this Agreement be construed as giving Employee, Employee’s beneficiaries or any other person any equity or interests of any kind in the assets of the Company or creating a trust of any kind or a fiduciary relationship of any kind between the Company and any such person.

 

6. Agreement Not to Compete; Remedies.

In consideration for receipt of this award grant, Employee agrees that, on or before the date which is two (2) years after the date Employee’s employment terminates for any reason, Employee will not directly or indirectly own an interest in, manage, operate, join, control, lend money or render financial or other assistance to, or be connected with, as an officer, employee, partner, stockholder, consultant or otherwise, any entity whose primary business is the retail sale of barbequed food; provided, however, that nothing in this Section 6 shall preclude Employee from holding less than one percent of the outstanding capital stock of any corporation required to file periodic reports with the Securities and Exchange Commission under Section 13 or 15 (d) of the Securities Exchange Act of 1934, as amended, the securities of which are listed on any securities exchange or traded in the over-the-counter market. Employee acknowledges that the Company’s remedy at law for any breach or threatened breach by Employee of this Section 6 will be inadequate. Therefore, the Company shall be entitled to injunctive and other equitable relief restraining Employee from violating those requirements, in addition to any other remedies that may be available to the Company under this Agreement or applicable law.

 

7. Forfeiture Remedy in the Event of Restatement of Financial Statements (Applicable only to Executive Team Members).

If any of the Company’s financial statements during the three fiscal year period for which performance goals are described in the attached Exhibit A are subsequently required to be restated, then the Board of Directors of the Company (the “Board”) may, in its sole discretion, require forfeiture or repayment of the compensation received by Employee under this Agreement that the Board determines would not have been received had the financial statements been initially filed as restated. The Board may effect this remedy (a) through forfeiture or cancellation of the Performance Shares that the Board determines would not have been granted to Employee if the financial statements had been initially filed as restated, (b) by seeking repayment from Employee in cash of the value of such Performance Shares at the time of the Board’s determination, (c) by seeking repayment of the gross amount realized by Employee upon sale of such Performance Shares, or (d) by any other means deemed appropriate by the Board, in its sole discretion. The foregoing provisions of this Section 7 shall apply only if Employee was identified as a Company executive in the Company’s Annual Report on Form 10-K for the restated fiscal year.

 

8. Further Assurances.

Each party hereto agrees to execute such further papers, agreements, assignments or documents of title as may be necessary or desirable to affect the purposes of this Agreement and carry out its provisions.

 

9. Governing Law.

This Agreement, in its interpretation and effect, shall be governed by the laws of the State of Minnesota applicable to contracts executed and to be performed therein.


10. Entire Agreement; Amendments.

This Agreement and the Plan embody the entire agreement made between the parties hereto with respect to the matters covered herein and shall not be modified except by a writing signed by the party to be charged.

 

11. Counterparts.

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute but one and the same agreement.

IN WITNESS WHEREOF, the Company has caused this Agreement to be executed as of the date first written above.

 

FAMOUS DAVE’S OF AMERICA, INC.
By:    
Name:   Diana Purcel
Title:   Chief Financial Officer

 

   
              , Employee


Exhibit A

to

Performance Share Agreement

(2013-2015 Awards)

Additional Terms and Conditions of Performance Shares

 

     Target Shares*    Total No. of Shares
Underlying Grant*

Number of Performance Shares subject to the Agreement:

     

 

* Assumes the Company achieves 100% of the sum of the Adjusted EBITDA goals for fiscal 2013, fiscal 2014 and fiscal 2015 (the “Cumulative Adjusted EBITDA Goal”).

 

1. Awards of Performance Shares are contingent upon:

 

  (a) Employee remaining an employee of the Company during all periods prior to the “Vesting Date” (as defined below); and

 

  (b) the Company’s cumulative Adjusted EBITDA over the periods covered by this Agreement (i.e., fiscal 2013-2015) equaling or exceeding the Cumulative Adjusted EBITDA Threshold (as defined below).

For purposes hereof, “Adjusted EBITDA” means income from operations of the Company, plus depreciation, and amortization, and non cash adjustments (such as asset impairment, lease termination and other closing costs) and other non-cash items as approved by the Committee and subject to adjustment by the Committee in its sole discretion for non-recurring items.

The “Cumulative Adjusted EBITDA Threshold” shall be equal to the cumulative Adjusted EBITDA amounts achieved by the Company during the three preceding years (fiscal 2012, fiscal 2013 and fiscal 2014), subject to any adjustments for nonrecurring events that the Committee may determine in its sole discretion are appropriate.

 

2. If these contingencies are satisfied, Employee shall be entitled to receive a percentage of the “Target Shares” amount set forth above equal to the percentage of the Cumulative Adjusted EBITDA Goal achieved by the Company, as set forth on the following schedule:

 

Company Performance

  

Performance Shares to which Employee is Entitled

If the Company fails to achieve the Cumulative Adjusted EBITDA Threshold, then:    Employee shall not be entitled to receive Performance Shares pursuant to this Agreement.
If the Company achieves the Cumulative Adjusted EBITDA Threshold, but less than or equal to 100% of the Cumulative Adjusted EBITDA Goal, then:    Employee shall be entitled to receive a percentage of the “Target Shares” amount equal to the percentage of the Cumulative Adjusted EBITDA Goal achieved (e.g., if the Company achieves 95% of the Cumulative Adjusted EBITDA Goal, then Employee is entitled to receive 95% of his or her “Target Shares” amount – assuming that the Cumulative Adjusted EBITDA Threshold has been met).


3. The Company shall issue the Performance Shares to which Employee is entitled as soon as reasonably practicable following the Vesting Date (as defined below).

 

4.

The Adjusted EBITDA goal for each fiscal year will be determined by the Committee during the 1 st fiscal quarter of the applicable fiscal year, or earlier, as determined by the Committee. Following the Committee’s determination of the Adjusted EBITDA goal for each fiscal year subject to the Agreement, the Company shall deliver written notice of such Adjusted EBITDA goal to Employee (unless Employee is no longer an employee of the Company).

 

5. For purposes of determining whether and to what extent that the Company has satisfied the Cumulative Adjusted EBITDA Threshold or achieved the Cumulative Adjusted EBITDA Goal, the Company’s actual Adjusted EBITDA for each fiscal year shall be equal to the Adjusted EBITDA amount for such fiscal year as publicly disclosed by the Company or, if not publicly disclosed, as determined in good faith by the Company’s Board of Directors or the Committee; provided, however, that such amount will subject to any adjustments for nonrecurring events that the Committee may determine in its sole discretion are appropriate. If actual Adjusted EBITDA amounts are later adjusted or restated (including as a result of an adjustment or reststement to the Company’s corresponding audited financial statements), then the actual Adjusted EBITDA for such fiscal year shall be equal to the Adjusted EBITDA amount for such fiscal year as publicly disclosed by the Company following the completion of fiscal 2015 or, if not publicly disclosed, as determined in good faith by the Company’s Board of Directors or the Committee (subject to adjustment by the Committee as set forth above).

 

6. The determination regarding whether and to what extent that the Company has achieved the Cumulative Adjusted EBITDA Goal will be made upon the date of filing of the Annual Report on Form 10-K for fiscal 2015 (the “Vesting Date”). Performance Shares will be issued, as provided above, if the Company’s cumulative Adjusted EBITDA over the periods covered by this Agreement (i.e., fiscal 2013-2015) equal or exceed the Cumulative Adjusted EBITDA Threshold. No partial issuance of Performance Shares shall be made if an Adjusted EBITDA goal is achieved in any one or more fiscal years but the Cumulative Adjusted EBITDA Threshold is not satisfied.


Exhibit B

to

Performance Share Agreement

(2013-2015)

Adjusted EBITDA Goals

 

• Adjusted EBITDA Goal for fiscal 2013:    $                    
• Adjusted EBITDA Goal for fiscal 2014:    $                    
• Adjusted EBITDA Goal for fiscal 2015:    $                    

EBITDA Threshold

 

• Adjusted EBITDA Threshold for fiscal 2012:

   2012 Adjusted EBITDA         

• Adjusted EBITDA Threshold for fiscal 2013:

   2013 Adjusted EBITDA         

• Adjusted EBITDA Threshold for fiscal 2014:

   2014 Adjusted EBITDA         

• Cumulative Adjusted EBITDA Threshold:

  

Sum of 2012 + 2013 +    

2014 Adjusted EBITDA    

    

Exhibit 10.2

Schedule of Grants Made Under Form of 2013-2015 Performance Share Agreement

 

Name

  

Title

   Target Shares  

John Gilbert

   Chief Executive Officer      45,450   

Christopher O’Donnell

   President and Chief Operating Officer      45,450   

Diana Purcel

   Chief Financial Officer and Secretary      24,570   

Exhibit 10.3

FAMOUS DAVE’S OF AMERICA, INC.

PERFORMANCE STOCK UNIT AGREEMENT

(Performance Based Vesting – Cash Settled)

(Fiscal 2013-2015 Awards)

THIS PERFORMANCE STOCK UNIT AGREEMENT (the “ Agreement ”) made effective as of January 8, 2013, is by and between Famous Dave’s of America, Inc., a Minnesota corporation (the “ Company ”), and                     (the “ Employee ”).

BACKGROUND

A. The Company has adopted the Famous Dave’s of America, Inc. Amended and Restated 2005 Stock Incentive Plan, as amended and restated in 2012 (the “ Plan ”), to increase shareholder value and to advance the interests of the Company by furnishing a variety of economic incentives designed to attract, retain and motivate employees.

B. The Compensation Committee of the Board of Directors of the Company (the “ Committee ”) believes that entering into this Agreement with Employee is consistent with the stated purposes for which the Plan was adopted.

C. The Company desires to grant restricted stock units to the Employee, and the Employee desires to accept such restricted stock units, on the terms and conditions set forth herein and in the Plan.

D. The restricted stock units granted pursuant to this Agreement shall vest based on the attainment of performance goals related to the Company’s “Adjusted EBITDA” and the continued employment of the Employee. For purposes hereof, “Adjusted EBITDA” means income from operations of the Company, plus depreciation, and amortization, and non cash adjustments (such as asset impairment, lease termination and other closing costs) and other non-cash items as approved by the Committee and subject to adjustment by the Committee in its sole discretion for non-recurring items.

E. The terms of this Agreement are intended to be exempt from the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “ Code ”) as a “short-term deferral” of compensation. Code Section 409A and the Treasury Regulations issued thereunder are referred to in this Agreement as “ Section 409A .”

AGREEMENT

NOW, THEREFORE, it is agreed as follows:

1. Grant of Performance Based Restricted Stock Units . Subject to the terms and provisions of this Agreement and the Plan, the Company hereby grants to Employee an award of restricted stock units (the “ Units ”) with a Target Award as set forth in Exhibit A . The number of Units which may finally vest, and the number of Units in respect of which payments may be made under Section 3 below, (i) is contingent upon the Company achieving the performance objectives set forth in Exhibit A ; and (ii) is subject to the other terms and conditions and contingencies set forth in such Exhibit and in the Plan. The Company shall establish a bookkeeping account for the Employee (the “ Unit Account ”) and shall credit the Units identified in this Section 1 to the Unit Account. The Units shall be considered cash awards granted under the Plan.


2. Vesting and Forfeiture of Units . Except as set forth in this Section 3, the Employee shall vest in a number of Units based on the attainment of the performance goals described in Exhibit A as of the date of filing of the 10-K for the fiscal year ended 2015 (the “Vesting Date”), provided that the Employee remains continuously employed by the Company through the Vesting Date. Except as specifically provided in this Section 2, no Units will vest prior to the Vesting Date. The Units which do not vest on the Vesting Date will be immediately forfeited. In the event of the Employee’s termination of employment with the Company, the Employee will forfeit to the Company all Units granted under this Agreement.

3. Form and Timing of Payment . As soon as administratively practicable following the Vesting Date identified in Section 2, but no later than thirty days (30) thereafter, the Company shall pay to the Employee or his or her personal representative, an amount in cash for each Unit that has vested pursuant to Section 2 and Exhibit A equal to the Fair Market Value (as defined in the Plan) of a share of the Company’s Common Stock as of the Vesting Date.

4. No Right to Continuation of Employment or Corporate Assets . Nothing contained in this Agreement shall be deemed to grant Employee any right to continue in the employ of the Company for any period of time or to any right to continue his or her present or any other rate of compensation, nor shall this Agreement be construed as giving Employee, Employee’s beneficiaries or any other person any equity or interests of any kind in the assets of the Company or creating a trust of any kind or a fiduciary relationship of any kind between the Company and any such person.

5. Withholding of Tax . To the extent that the receipt of Units or compensation upon the vesting thereof, or the lapse of any restrictions thereon, results in income to Employee for federal or state income tax purposes, Employee shall pay the applicable withholding tax, which may be paid by any method permitted under the Plan.

6. No Assignment of Units or Rights to Shares . Employee shall have no right to assign, pledge or otherwise transfer any Units or any right to receive compensation under this Agreement, except to the limited extent permitted under the Plan. No creditor of Employee shall have any right to garnish or otherwise attach any Units or any right to receive compensation under this Agreement. In the event of any attempted assignment, pledge or other transfer, or attempted garnishment or attachment by a creditor, the Company shall have no further liability under this Agreement.

7. Rights of Employee . Employee shall not have any of the rights of a shareholder with respect to the Units.

8. Forfeiture Remedy in the Event of Restatement of Financial Statements (Applicable only to Executive Team Members) . If any of the Company’s financial statements during the three fiscal year period for which performance goals are described in the attached Exhibit A are subsequently required to be restated, then the Board of Directors of the Company (the “ Board ”) may, in its sole discretion, require forfeiture or repayment of the compensation received by Employee under this Agreement that the Board determines would not have been received had the financial statements been initially filed as restated. The Board may effect this remedy (a) through forfeiture or cancellation of the Units that the Board determines would not have vested if the financial statements had been initially filed as restated, (b) by seeking repayment from Employee in cash of the portion of the compensation value received by Employee and attributable to such vested Units, or (c) by any other means deemed appropriate by the Board, in its sole discretion. The foregoing provisions of this Section 9 shall apply only if Employee was identified as a Company executive in the Company’s Annual Report on Form 10-K for the restated fiscal year.

9. The Plan; Administration . The Units are granted pursuant to the Plan and is governed by the terms thereof, which are incorporated herein by reference. The Committee shall have the sole and complete discretion with respect to all matters reserved to it by the Plan and decisions of the Committee with respect thereto and to this Agreement shall be final and binding upon Employee. In the event of any conflict between the terms and conditions of this Agreement and the Plan, the provisions of the Plan shall govern and control. By the execution of this Agreement, Employee acknowledges receipt of a copy of the Plan.

 

2


10. Agreement Not to Compete; Remedies . In consideration for receipt of this award grant, Employee agrees that, on or before the date which is two (2) years after the date Employee’s employment terminates for any reason, Employee will not directly or indirectly own an interest in, manage, operate, join, control, lend money or render financial or other assistance to, or be connected with, as an officer, employee, partner, stockholder, consultant or otherwise, any entity whose primary business is the retail sale of barbequed food; provided, however, that nothing in this Section 6 shall preclude Employee from holding less than one percent of the outstanding capital stock of any corporation required to file periodic reports with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, the securities of which are listed on any securities exchange or traded in the over-the-counter market. Employee acknowledges that the Company’s remedy at law for any breach or threatened breach by Employee of this Section 11 will be inadequate. Therefore, the Company shall be entitled to injunctive and other equitable relief restraining Employee from violating those requirements, in addition to any other remedies that may be available to the Company under this Agreement or applicable law.

11. Further Assurances . Each party hereto agrees to execute such further papers, agreements, assignments or documents of title as may be necessary or desirable to affect the purposes of this Agreement and carry out its provisions.

12. Governing Law . This Agreement, in its interpretation and effect, shall be governed by the laws of the State of Minnesota applicable to contracts executed and to be performed therein.

13. Entire Agreement; Amendments . This Agreement and the Plan embody the entire agreement made between the parties hereto with respect to the matters covered herein and shall not be modified except by a writing signed by the party to be charged. In the event that the terms of this agreement are inconsistent with then Plan, the terms of the Plan shall govern and control.

14. Counterparts . This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute but one and the same agreement.

Signature page follows

 

3


IN WITNESS WHEREOF, the parties have executed this Performance Stock Unit Agreement to be effective as of the date first written above.

 

FAMOUS DAVE’S OF AMERICA, INC.
By:    
Name: Diana Garvis Purcel
Title: Chief Financial Officer
EMPLOYEE
 

 

4


Exhibit A

to

Performance Stock Unit Agreement

(2013-2015 Awards)

Additional Terms and Conditions of Performance Shares

 

     Target Units*    Total No. of Units
Underlying  Grant*

Number of Units subject to the Agreement:

     

 

* Assumes the Company achieves 100% of the sum of the Adjusted EBITDA goals for fiscal 2013, fiscal 2014 and fiscal 2015 (the “Cumulative Adjusted EBITDA Goal”).

 

1. Vesting of Units are contingent upon:

 

  (a) Employee remaining an employee of the Company during all periods prior to the “Vesting Date” (as defined below); and

 

  (b) the Company’s cumulative “Adjusted EBITDA” over the periods covered by this Agreement (i.e., fiscal 2013-2015) equaling or exceeding the Cumulative Adjusted EBITDA Threshold (as defined below).

The “Cumulative Adjusted EBITDA Threshold” shall be equal to the cumulative Adjusted EBITDA amounts achieved by the Company during the three preceding years (fiscal 2012, fiscal 2013 and fiscal 2014), subject to any adjustments for nonrecurring events that the Committee may determine in its sole discretion are appropriate.

 

2. If these contingencies are satisfied, Employee shall be entitled to receive a percentage of the “Target Units” amount set forth above equal to the percentage of the Cumulative Adjusted EBITDA Goal achieved by the Company, as set forth on the following schedule:

 

Company Performance

  

Vesting Schedule

If the Company fails to achieve the Cumulative Adjusted EBITDA Threshold, then:    No Units will vest.
If the Company achieves the Cumulative Adjusted EBITDA Threshold, but less than or equal to 100% of the Cumulative Adjusted EBITDA Goal, then:    The number of Units that vest will be a percentage of the “Target Units” equal to the percentage of the Cumulative Adjusted EBITDA Goal achieved (e.g., if the Company achieves 95% of the Cumulative Adjusted EBITDA Goal, then 95% of his or her “Target Units” will vest – assuming that the Cumulative Adjusted EBITDA Threshold has been met).

 

3.

The Adjusted EBITDA goal for each fiscal year will be determined by the Committee during the 1 st fiscal quarter of the applicable fiscal year, or earlier, as determined by the Committee. Following the Committee’s determination of the Adjusted EBITDA goal for each fiscal year subject to the Agreement, the Company shall deliver written notice of such Adjusted EBITDA goal to Employee (unless Employee is no longer an employee of the Company).

 

5


4. For purposes of determining whether and to what extent that the Company has satisfied the Cumulative Adjusted EBITDA Threshold or achieved the Cumulative Adjusted EBITDA Goal, the Company’s actual Adjusted EBITDA for each fiscal year shall be equal to the Adjusted EBITDA amount for such fiscal year as publicly disclosed by the Company or, if not publicly disclosed, as determined in good faith by the Company’s Board of Directors or the Committee; provided, however, that such amount will subject to any adjustments for nonrecurring events that the Committee may determine in its sole discretion are appropriate. If such actual Adjusted EBITDA amounts are later adjusted or restated (including as a result of an adjustment or restatement to the Company’s corresponding audited financial statements), then the actual Adjusted EBITDA for such fiscal year shall be equal to the Adjusted EBITDA amount for such fiscal year as publicly disclosed by the Company following the completion of fiscal 2015 or, if not publicly disclosed, as determined in good faith by the Company’s Board of Directors or the Committee (subject to adjustment by the Committee as set forth above).

 

5. The determination regarding whether and to what extent that the Company has achieved the Cumulative Adjusted EBITDA Goal will be made upon the date of filing of the Annual Report on Form 10-K for fiscal 2015 (the “ Vesting Date ”). Units will be vest or be forfeited, as provided above and in the Agreement to which this Exhibit is attached, if the Company’s cumulative Adjusted EBITDA over the periods covered by the Agreement (i.e., fiscal 2013-2015) equal or exceed the Cumulative Adjusted EBITDA Threshold. No Units will vest if an Adjusted EBITDA goal is achieved in any one or more fiscal years but the Cumulative Adjusted EBITDA Threshold is not satisfied.

 

6


Exhibit B

to

Performance Stock Unit Agreement

(2013-2015)

Adjusted EBITDA Goals

 

•    Adjusted EBITDA Goal for fiscal 2013:

   $                    

•    Adjusted EBITDA Goal for fiscal 2014:

   $                    

•    Adjusted EBITDA Goal for fiscal 2015:

   $                    

EBITDA Threshold

 

•    Adjusted EBITDA Threshold for fiscal 2012:

   2012 Adjusted EBITDA     

•    Adjusted EBITDA Threshold for fiscal 2013:

   2013 Adjusted EBITDA     

•    Adjusted EBITDA Threshold for fiscal 2014:

   2014 Adjusted EBITDA     

•    Cumulative Adjusted EBITDA Threshold:

  

Sum of 2012 + 2013 +

2014 Adjusted EBITDA

    

 

7

Exhibit 10.4

Schedule of Grants Made Under Form of Performance Stock Unit Agreement

 

Name

  

Title

  

Units

 

John Gilbert

   Chief Executive Officer      5,050   

Christopher O’Donnell

   President and Chief Operating Officer      5,050   

Diana Purcel

   Chief Financial Officer and Secretary      2,730