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 ___ day of ______, 200__, 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, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
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 201 , 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
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terminate and all restricted stock units subject to this Award that remain
subject to risks of forfeiture shall be forfeited by Participant. However, 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.
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.
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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.
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.
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<PAGE>
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.
BUFFALO WILD WINGS, INC.
By:
-----------------------------------
Sally J. Smith, President
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NOTICE OF RESTRICTED STOCK UNIT AWARD
BUFFALO WILD WINGS, INC.
2003 EQUITY INCENTIVE PLAN
THIS AWARD, made effective as of this __ day of ____ 2005, 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 member of the Board of
Directors 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, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
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 592 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 201_, 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 Directorship. If the Participant ceases to be a
director of the Company at any time prior to a Vesting Date for any reason other
than as a result of the failure of the director to be nominated or, if
nominated, reelected to the Board of Directors, then the Participant shall
immediately forfeit all shares of Stock subject to this Award which have not yet
vested and for which the risks of forfeiture have not lapsed. If the Participant
ceases to be a director of the Company as a result of the failure of the
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director to be nominated or, if nominated, reelected to the Board of Directors
prior to the Vesting Date for any portion of this Award, then all risks of
forfeiture on the shares of Stock subject to this Award shall immediately lapse
and such shares shall be immediately issued to Participant.
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.
4. General Provisions.
a. 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.
b. 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).
c. 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.
d. 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.
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<PAGE>
e. 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.
f. 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).
g. 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.
h. 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.
i. 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).
j. 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.
k. 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
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<PAGE>
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.
BUFFALO WILD WINGS, INC.
By:
----------------------------------------
EVP and Chief Financial Officer
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