Notice of Restricted Stock Unit Award - Buffalo Wild Wings Inc.
NOTICE OF RESTRICTED STOCK UNIT AWARD
BUFFALO WILD WINGS, INC.
2003 EQUITY INCENTIVE PLAN
THIS AWARD, made effective as of this 1st day of January, 2007, by and
between Buffalo Wild Wings, Inc., a Minnesota corporation (the "Company"), and
____ ("Participant").
W I T N E S S E T H:
WHEREAS, Participant on the date hereof is a key employee or officer of
the Company or a Subsidiary of the Company; and
WHEREAS, the Company wishes to grant a restricted stock unit award to
Participant for shares of the Company's Common Stock pursuant to the Company's
2003 Equity Incentive Plan (the "Plan"); and
WHEREAS, the Administrator of the Plan has authorized the grant of a
restricted stock unit award to Participant;
NOW, THEREFORE, this award is hereby granted upon the following terms
and conditions, which shall be binding upon the Company and Participant:
1. Grant of Restricted Stock Unit Award; Term. The Company hereby
grants to Participant on the date set forth above a restricted stock unit award
(the "Award") for ___ restricted stock units on the terms and conditions set
forth herein. Each restricted stock unit shall entitle the Participant to
receive one share of the Company's Common Stock. This Award shall expire at the
end of fiscal year 2016, unless terminated earlier under the provisions of
Paragraph 2 below.
2. Vesting of Restricted Stock Units.
a. General. The restricted stock units subject to this Award
shall remain forfeitable until the date the risks of forfeiture lapse with
respect to a percentage of such units (the "Vesting Date"). The Vesting Date
shall be the last day of any fiscal year during the term of the Award in which
the Company achieves its Annual Earnings Target (as defined herein). If, for any
fiscal year ending on a Vesting Date, the Company achieves 95% of the earnings
target as established by the Board of Directors for such fiscal year (each an
"Annual Earnings Target"), the risks of forfeiture relating to 33-1/3% of the
restricted stock units specified in Paragraph 1 shall lapse. The risks of
forfeiture relating to the remaining restricted stock units shall continue to
lapse in this manner until the risks of forfeiture relating to 100% of the
restricted stock units specified in Paragraph 1 have lapsed.
b. Termination of Employment. Except as set forth herein, if
the Participant's employment with the Company (or a Subsidiary of the Company)
ceases at any time during the term of the Award, for any reason, including the
Participant's voluntary resignation or retirement, this Award shall also
terminate and all restricted stock units subject to this Award that remain
subject to risks of forfeiture shall be forfeited by Participant; provided,
however, that if the Administrator delays the vesting of any restricted stock
units pursuant to Paragraph 4(m), the Participant shall not forfeit any such
restricted stock units that otherwise would have vested pursuant to Paragraph
2(a) above prior to the termination of Participant's employment had such vesting
not been so delayed. Further, if the Participant's employment ceases for any
reason during the period between a Vesting Date and the Issuance Date (as
defined in Paragraph 3 hereof), then such Participant shall also retain any
restricted stock units which were no longer subject to risks of forfeiture as of
such Vesting Date.
3. Issuance of Shares. On the date the Company files its 10-K for each
fiscal year of the Award, the Company shall cause to be issued a stock
certificate representing that number of shares of Common Stock which is
equivalent to the percentage of restricted stock units for which the risks of
forfeiture have lapsed, less any shares withheld for payment of taxes as
provided in Paragraph 4(e) below, and shall deliver such certificate to
Participant. Until the issuance of such shares, Participant shall not be
entitled to vote the shares of Common Stock represented by such restricted stock
units, shall not be entitled to receive dividends attributable to such shares of
Common Stock, and shall not have any other rights as a shareholder with respect
to such shares.
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4. General Provisions.
a. Employment. This Notice shall not confer on Participant any
right with respect to continuance of employment by the Company or any of its
Affiliates, nor will it interfere in any way with the right of the Company to
terminate such employment. Nothing in this Notice shall be construed as creating
an employment contract for any specified term between Participant and the
Company or any Affiliate.
b. Securities Law Compliance. Participant shall not transfer
or otherwise dispose of the shares of Common Stock received pursuant to this
Award until such time as counsel to the Company shall have determined that such
transfer or other disposition will not violate any state or federal securities
laws. The Participant may be required by the Company, as a condition of the
effectiveness of this restricted stock unit award, to agree in writing that all
Common Stock subject to this Award shall be held, until such time that such
Common Stock is registered and freely tradable under applicable state and
federal securities laws, for Participant's own account without a view to any
further distribution thereof, that the certificates for such shares shall bear
an appropriate legend to that effect and that such shares will be not
transferred or disposed of except in compliance with applicable state and
federal securities laws.
c. Mergers, Recapitalizations, Stock Splits, Etc. Pursuant and
subject to Section 12 of the Plan, certain changes in the number or character of
the Common Stock of the Company (through merger, consolidation, exchange,
reorganization, divestiture (including a spin-off), liquidation,
recapitalization, stock split, stock dividend or otherwise) shall result in an
adjustment, reduction or enlargement, as appropriate, in Participant's rights
with respect to any restricted stock units subject to this Award which continue
to be subject to risks of forfeiture (i.e., Participant shall have such
"anti-dilution" rights under the Award with respect to such events, but shall
not have "preemptive" rights).
d. Shares Reserved. The Company shall at all times during the
term of this Award reserve and keep available such number of shares as will be
sufficient to satisfy the requirements of this Award.
e. Withholding Taxes. In order to permit the Company to comply
with all applicable federal or state income tax laws or regulations, the Company
may take such action as it deems appropriate to insure that, if necessary, all
applicable federal or state payroll, income or other taxes attributable to this
Award are withheld from any amounts payable by the Company to the Participant.
The Company may, solely at its option, require the Participant to satisfy such
obligations, in whole or in part, by delivering shares of Common Stock received
pursuant to this Award on which the risks of forfeiture have lapsed. If the
Company is unable to withhold such federal and state taxes, for whatever reason,
the Participant hereby agrees to pay to the Company an amount equal to the
amount the Company would otherwise be required to withhold under federal or
state law. In addition, the Company may, solely at its option, permit the
Participant to satisfy such withholding taxes by delivery of Common Stock as
permitted by Section 17(d) of the Plan. In no event may the Participant require
the Company to accept delivery of any shares of Stock to satisfy such
withholding taxes.
f. 2003 Equity Incentive Plan. The Award evidenced by this
Notice is granted pursuant to the Plan, a copy of which Plan has been made
available to Participant and is hereby incorporated into this Notice. This
Notice is subject to and in all respects limited and conditioned as provided in
the Plan. The Plan governs this Notice and, in the event of any questions as to
the construction of this Notice or in the event of a conflict between the Plan
and this Notice, the Plan shall govern, except as the Plan otherwise provides.
g. Lockup Period Limitation. Participant agrees that in the
event the Company advises Participant that it plans an underwritten public
offering of its Common Stock in compliance with the Securities Act of 1933, as
amended, and that the underwriter(s) seek to impose restrictions under which
certain shareholders may not sell or contract to sell or grant any option to buy
or otherwise dispose of part or all of their stock purchase rights of the
underlying Common Stock, Participant hereby agrees that for a period not to
exceed 180 days from the prospectus, Participant will not sell or contract to
sell or grant an option to buy or otherwise dispose of this Notice or any of the
underlying shares of Common Stock without the prior written consent of the
underwriter(s) or its representative(s).
h. Blue Sky Limitation. Notwithstanding anything in this
Notice to the contrary, in the event the Company makes any public offering of
its securities and determines, in its sole discretion, that it is necessary to
reduce the number of issued but unvested restricted stock units so as to comply
with any state securities or Blue Sky law limitations with respect thereto, the
Board of Directors of the Company shall remove the risks of forfeiture of this
restricted stock unit award, provided that the Company gives Participant 15
days' prior written notice of such acceleration. Notice shall be deemed given
when delivered personally or when deposited in the United States mail, first
class postage prepaid and addressed to Participant at the address of Participant
on file with the Company.
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i. Accounting Compliance. Participant agrees that, if a
merger, reorganization, liquidation or other "transaction" as defined in Section
12 of the Plan occurs, and Participant is an "affiliate" of the Company or any
subsidiary (as defined in applicable legal and accounting principles) at the
time of such transaction, Participant will comply with all requirements of Rule
145 of the Securities Act of 1933, as amended, and the requirements of such
other legal or accounting principles, and will execute any documents necessary
to ensure such compliance.
j. Stock Legend. The Administrator may require that the
certificates for any shares of Common Stock purchased by Participant (or, in the
case of death, Participant's successors) shall bear an appropriate legend to
reflect the restrictions of Paragraph 4(b) and Paragraphs 4(g) through 4(j) of
this Notice; provided, however, that failure to so endorse any of such
certificates shall not render invalid or inapplicable Paragraph 4(j).
k. Scope of Notice. This Notice shall bind and inure to the
benefit of the Company, its Affiliates and their successors and assigns, and
shall bind and inure to the benefit of Participant and any successor or
successors of Participant permitted herein. This Award is expressly subject to
all terms and conditions contained in the Plan and in this Notice, and
Participant shall comply with all such terms and conditions.
l. Arbitration. Any dispute arising out of or relating to this
Notice or the alleged breach of it, or the making of this Notice, including
claims of fraud in the inducement, shall be discussed between the disputing
parties in a good faith effort to arrive at a mutual settlement of any such
controversy. If, notwithstanding, such dispute cannot be resolved, such dispute
shall be settled by binding arbitration. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. The
arbitrator shall be a retired state or federal judge or an attorney who has
practiced securities or business litigation for at least 10 years. If the
parties cannot agree on an arbitrator within 20 days, any party may request that
the chief judge of the District Court of Hennepin County, Minnesota, select an
arbitrator. Arbitration will be conducted pursuant to the provisions of this
Notice, and the commercial arbitration rules of the American Arbitration
Association, unless such rules are inconsistent with the provisions of this
Notice. Limited civil discovery shall be permitted for the production of
documents and taking of depositions. Unresolved discovery disputes may be
brought to the attention of the arbitrator who may dispose of such dispute. The
arbitrator shall have the authority to award any remedy or relief that a court
of this state could order or grant; provided, however, that punitive or
exemplary damages shall not be awarded. The arbitrator may award to the
prevailing party, if any, as determined by the arbitrator, all of its costs and
fees, including the arbitrator's fees, administrative fees, travel expenses,
out-of-pocket expenses and reasonable attorneys' fees. Unless otherwise agreed
by the parties, the place of any arbitration proceedings shall be Hennepin
County, Minnesota.
m. Delay in Issuance. In the event the Administrator
reasonably anticipates that the Company's income tax deduction with respect to
the vesting and issuance of any shares of Stock required by this Agreement would
be limited or eliminated by Code Section 162(m), the Administrator may, subject
to such terms and conditions as determined by the Administrator, delay the
vesting and issuance of all or a portion of such shares of Stock until the
earlier of (i) the date at which the Administrator reasonably anticipates that
the corresponding income tax deduction will not be so limited or eliminated, and
(ii) the calendar year of the Participant's separation from service, as such
term is defined in Code Section 409A and the regulations, notices and other
guidance of general applicability issued thereunder. In the event of such delay,
this Award shall not terminate until the delayed vesting and issuance of such
shares of Stock has occurred.
n. Delay in Payment for Specified Employee. In the event this
Award is subject to Code Section 409A and the Administrator determines that the
Participant is a "specified employee" within the meaning of Code Section 409A,
then the issuance of any shares of Stock due to the Participant's separation
from service (as defined in Code Section 409A) shall not be issued earlier than
the date that is six months after such separation from service, but shall be
issued during the calendar year following the year in which the Participant's
separation from service occurs and within thirty (30) days after the earliest
possible date permitted under Code Section 409A.
BUFFALO WILD WINGS, INC.
By:
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Its:
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