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 31, 2017
Wingstop Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 001-37425 | 47-3494862 | ||
| (State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) | ||
| 5501 LBJ Freeway, 5th Floor, Dallas, Texas |
75240 | |||
| (Address of principal executive offices) | (Zip Code) | |||
Registrant’s telephone number, including area code (972) 686-6500
Not Applicable
(Former name or former address, if changed since last report)
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 (see General Instruction A.2. below):
| ☐ | 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 Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
Effective January 31, 2017, the Compensation Committee of the Board of Directors of Wingstop Inc. (the “Company”) approved a form of Performance-based Restricted Stock Unit Award Agreement (the “Performance-based Award Agreement”), a form of Service-based Restricted Stock Unit Award Agreement (the “Service-based Award Agreement”) and a form of Restricted Stock Award Agreement under the Company’s 2015 Omnibus Incentive Compensation Plan. Performance-based awards contain performance-based vesting provisions based on the Company meeting certain Adjusted EBITDA profitability targets for each fiscal year during the vesting period. Service-based awards contain a service-based, or time-based, vesting provision. All performance-based and service based awards accelerate vesting upon a change in control and termination/demotion within two years of a change in control. Performance goals applicable to any outstanding performance-based awards shall be deemed to have been attained at the target level (unless actual performance exceeds the target, in which case actual performance shall be used) for the entire applicable performance period then outstanding.
Copies of each of the form of Performance-based Award Agreement, the form of Service-based Award Agreement and the form of Restricted Stock Award Agreement are filed as Exhibits 10.1, 10.2 and 10.3, respectively, to this Current Report on Form 8-K and are incorporated herein by reference. The description of the award agreements included in this Form 8-K is qualified in its entirety by reference to the attached award agreements.
The information in this Current Report on Form 8-K, including Exhibit Nos. 10.1, 10.2 and 10.3 hereto, shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities under that Section. The information in this Current Report shall not be incorporated by reference into any filing or other document pursuant to the Securities Act of 1933, as amended, or the Exchange Act except as shall be expressly set forth by specific reference in such filing or document.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits.
| 10.1 | Form of Performance-based Restricted Stock Unit Award Agreement under the Wingstop Inc. 2015 Omnibus Incentive Compensation Plan. | |
| 10.2 | Form of Service-based Restricted Stock Unit Award Agreement under the Wingstop Inc. 2015 Omnibus Incentive Compensation Plan. | |
| 10.3 | Form of Restricted Stock Award Agreement under the Wingstop Inc. 2015 Omnibus Incentive Compensation Plan. | |
Signatures
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 thereunto duly authorized.
Date: February 1, 2017
| WINGSTOP INC. | ||
| By: | /s/ Darryl Marsch | |
| Darryl Marsch | ||
| Senior Vice President, General Counsel and Secretary | ||
EXHIBIT INDEX
| Exhibit |
Description | |
| 10.1 | Form of Performance-based Restricted Stock Unit Award Agreement under the Wingstop Inc. 2015 Omnibus Incentive Compensation Plan. | |
| 10.2 | Form of Service-based Restricted Stock Unit Award Agreement under the Wingstop Inc. 2015 Omnibus Incentive Compensation Plan. | |
| 10.3 | Form of Restricted Stock Award Agreement under the Wingstop Inc. 2015 Omnibus Incentive Compensation Plan. | |
Exhibit 10.1
WINGSTOP INC.
2015 OMNIBUS INCENTIVE COMPENSATION PLAN
PERFORMANCE–BASED RESTRICTED STOCK UNIT AGREEMENT
This Performance-Based Restricted Stock Unit Agreement (this “Award Agreement”) evidences the grant by Wingstop Inc. (the “Company”), in accordance with the Wingstop Inc. 2015 Omnibus Incentive Compensation Plan (the “Plan”), of a maximum of performance-based restricted stock units (“PSUs”), subject to the restrictions set forth in this Award Agreement and the Plan (the “Award”), to (the “Grantee”), effective as of (the “Grant Date”).
| WINGSTOP INC. | ||
| By: |
| |
| Name: | ||
| Title: | ||
TERMS AND CONDITIONS
§ 1 Plan. The Award is subject to all of the terms and conditions set forth in the Plan and this Award Agreement, and all capitalized terms not otherwise defined in this Award Agreement have the respective meaning of such terms as defined in the Plan. If a determination is made that any term or condition set forth in this Award Agreement is inconsistent with the Plan, the Plan will control. A copy of the Plan will be made available to Grantee upon written request to the Secretary of the Company
§ 2 Grant of PSUs. Each PSU represents the right to receive one share of $0.01 par value Common Stock of the Company (a “Share”), subject to the terms and conditions set forth in this Agreement and the Plan. The number of PSUs actually payable under this Award Agreement depends on the extent to which the Company attains the performance conditions, described in Section 4 of this Award Agreement, and whether the Grantee satisfies the service vesting condition, described in Section 5 of this Award Agreement. The PSUs shall be credited to a separate account maintained for the Grantee on the books and records of the Company (the “Account”). All amounts credited to the Account shall continue for all purposes to be part of the general assets of the Company.
§ 3 Consideration. The grant of PSUs is made in consideration of the services to be rendered by the Grantee to the Company.
§ 4 Performance Conditions. The number of PSUs earned by the Grantee will be determined based on the -year EBITDA CAGR level achieved by the Company during the -year period beginning and ending (the “Performance Period”) in accordance with the following schedule:
|
-year EBITDA CAGR Level Achieved |
Percentage of PSUs Earned | |
| less than % |
% | |
| % to % |
% | |
| % to % |
% | |
| % to % |
% | |
| over % |
% |
If the -year EBITDA CAGR level falls between the levels provided above, straight-line interpolation will be used to determine the percentage of PSUs earned.
The Committee will determine and certify the number of PSUs, if any, that the Grantee earns based on the -year EBITDA CAGR level achieved as soon as practicable and within 45 days following the end of the Performance Period (the “Earned Award”). In all cases, the number of PSUs, if any, in the Grantee’s Earned Award will be rounded down to the nearest whole number of PSUs (as necessary). Upon the Committee’s determination of the Earned Award, the Grantee will immediately forfeit all PSUs other than the Earned Award. To become vested in the Earned Award, the Grantee must also satisfy the vesting requirements of Section 5 below.
For the purposes of this Section 4, “ -year EBITDA CAGR” means the compound annual growth rate of the Company’s EBITDA for the period beginning and ending , and “EBITDA” means earnings before interest, taxes, depreciation, and amortization for a fiscal year, as determined by the Board based upon the Company’s audited financial statements, as reviewed and approved by the Board.
For purposes of measuring EBITDA CAGR, the Company’s EBITDA shall be adjusted by the Committee to add (1) the sum of the following that occur during the Performance Period: (a) asset write-downs, (b) events of an “unusual nature” and/or of a type that indicate “infrequency of occurrence,” each as defined in FASB Accounting Standards Update 2015 – 01, and appearing in the Company’s financial statements or notes thereto appearing in the Company’s Annual Report on Form 10-K, and/or in management’s discussion and analysis of financial performance appearing in such Annual Report, (c) operations discontinued, divested or restructured (which would include the sale or refranchise of Company-owned restaurants), including severance costs, (d) losses on refinancing or extinguishment of debt, (e) non-cash charges for such period, including, without limitation, any non-cash loss or expense due to the application of FAS No. 106
regarding post-retirement benefits, FAS No. 133 regarding impairment of goodwill, FAS No. 150 regarding accounting for financial instruments with debt and equity characteristics and non-cash expenses deducted as a result of any grant of capital stock to employees, officers or directors (except to the extent that such non-cash charges are reserved for cash charges to be taken in the future), (f) the cumulative effect of changes in accounting principles or changes in accounting policies (including changes in Generally Accepted Accounting Principles that do not require retrospective adjustments to historic accounting periods adopted after the date hereof that are material to the Company, such as future changes to revenue recognition rules), (g) any extraordinary losses during such period, (h) all management fees and out of pocket expenses pursuant to any management agreement for such period, (i) costs and expenses incurred in connection with dividends, distributions, issuances of capital stock or debt securities, asset dispositions, recapitalizations, incurrences, repayments, refinancings, amendments or modifications of indebtedness or similar transactions for such period, (j) non-recurring charges for such period; and minus (2) any extraordinary gains during such period.
§ 5 Service Vesting Condition.
(a) The PSUs are subject to forfeiture until they vest. Subject to (i) the achievement of the Performance Conditions for payout set forth in Section 4 above, and (ii) the Grantee’s continuous employment from the Grant Date through the third anniversary of the Grant Date, the Earned Award determined pursuant to Section 4 will vest and become nonforfeitable on the third anniversary of the Grant Date. Except as provided in Section 5(b) or (c), upon the Grantee’s Termination for any reason at any time before the end of the Performance Period, all of the Grantee’s PSUs shall be automatically forfeited upon such Termination and the Company shall not have any further obligations to the Grantee under this Agreement.
(b) If the Grantee has a Termination of employment terminates during the Performance Period as a result of the Grantee’s death or Disability, the Grantee will vest on such Termination date in a pro rata portion of the Award calculated by multiplying the 50% of the total PSUs granted to Grantee (the “Target Award”) by a fraction, the numerator of which equals the number of days that the Grantee was employed during the Performance Period and the denominator of which equals the total number of days in the Performance Period. For purposes of this Section 5(b), “Disability” has the same meaning as such term is defined in the Company’s long-term disability insurance policies which now or hereafter cover the permanent disability of the Grantee or, in absence of such policies, means the inability of the Grantee to work in a customary day-to-day capacity for six (6) consecutive months or for six (6) months within a twelve (12) month period, as determined by the Board.
(c) [In the event a Change in Control occurs and within months prior to or years after such Change in Control (A) Grantee’s employment is terminated by the Company without Cause, or (B) Grantee’s employment is terminated by the Grantee for Good Reason, PSUs at the Target Award level shall become fully vested and nonforfeitable as of the date of the Grantee’s Termination of employment.]
§ 6 Dividend Equivalents. If, prior to the date PSUs are settled pursuant to Section 7, the Company declares a cash or stock dividend with respect to shares of Common Stock, then, on the payment date of the dividend, the Grantee’s Account shall be credited with Dividend Equivalents in an amount equal to the dividends that would have been paid to the Grantee if one Share had been issued on the Grant Date for each PSU granted to the Grantee as set forth in this Award Agreement. In connection with the Dividend Equivalents, any cash dividend credited to Grantee’s Account shall be adjusted with interest at a rate and subject to such terms as determined by the Committee. The Dividend Equivalents credited to the Grantee’s Account shall be distributed in cash or, at the discretion of the Committee, in shares of Common Stock having a Fair Market Value equal to the amount of the Dividend Equivalents and interest, if any, subject to the same vesting, forfeiture, payment, termination and other terms, conditions and restrictions as the original PSUs to which they relate.
§ 7 Settlement.
(a) Payment of the Grantee’s PSUs, the number of which are determined pursuant to Section 4 or Section 5 above shall be settled in Shares as soon as practicable following the date such PSUs become vested in accordance with Section 5 above (and in no event later than March 15 of the calendar year following the calendar year in which such PSUs become vested) by delivering to the Grantee one Share for each vested PSU.
(b) Notwithstanding Section 7(a), if the Grantee is deemed a “specified employee” within the meaning of Section 409A of the Code, as determined by the Committee, at a time when the Grantee becomes eligible for settlement of the PSUs upon his “separation from service” within the meaning of Section 409A of the Code, then to the extent such PSUs constitute deferred compensation within the meaning of Section 409A of the Code, such settlement will be delayed until the earlier of: (1) the date that is six months following the Grantee’s separation from service and (2) the Grantee’s death.
§ 8 Delivery. The Company will deliver a properly issued certificate for any Shares received in settlement of PSUs pursuant to Section 7 as soon as practicable after settlement (or otherwise register such Shares in the name of the Grantee), and such delivery (or registration in the name of the Grantee) shall discharge the Company of all of its duties and responsibilities with respect to the PSUs under this Award Agreement.
§ 9 Nontransferable. Subject to any exceptions set forth in this Award Agreement or the Plan, until such time as the PSUs are settled in accordance with Section 7, the PSUs or the rights relating thereto may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Grantee. Any attempt to assign, alienate, pledge, attach, sell or otherwise transfer or encumber the PSUs or the rights relating thereto shall be wholly ineffective.
§ 10 Release. As a condition to the delivery of the Shares received in settlement of PSUs pursuant to Section 7, the Company, at its option, may require Grantee to execute a general release on behalf of Grantee and Grantee’s heirs, executors, administrators and assigns, releasing all claims, actions and causes of action against the Company and each parent, subsidiary and former affiliate of the Company, and their respective current and former directors, officers, administrators, trustees, employees, agents, and other representatives. Such release must be in form and substance satisfactory to the Board.
§ 11 No Right to Continue Service. Neither the Plan, this Award Agreement, the Award, nor any related material shall give Grantee the right to continue in employment by Company or shall adversely affect the right of the Company to terminate Grantee’s employment with or without Cause at any time.
§ 12 Shareholder Status. The Grantee shall have no rights as a shareholder with respect to the PSUs until the Grantee receives a distribution of Shares in settlement of vested PSUs in accordance with Section 7, and such Shares have been duly issued and delivered to (or registered in the name of) the Grantee.
§ 13 Securities Registration. As a condition to the delivery of the certificate for any Shares purchased pursuant to the settlement of the PSUs pursuant to Section 7 (or the registration of such Shares in the name of the Grantee), Grantee shall, if so requested by the Company, hold such Shares for investment and not with a view of resale or distribution to the public and, if so requested by the Company, shall deliver to the Company a written statement satisfactory to the Company to that effect.
§ 14 Compliance with Law. The issuance and transfer of Shares shall be subject to compliance by the Company and the Grantee with all applicable requirements of federal and state securities laws and with all applicable requirements of any stock exchange on which the Company’s Shares may be listed. No Shares shall be issued or transferred unless and until any then applicable requirements of state and federal laws and regulatory agencies have been fully complied with to the satisfaction of the Company and its counsel. The Grantee understands that the Company is under no obligation to register the Shares with the Securities and Exchange Commission, any state securities commission, or any stock exchange to effect such compliance.
§ 15 Other Agreements. As a condition to the delivery of the Shares received in settlement of PSUs pursuant to Section 7, Grantee shall enter into such additional confidentiality, covenant not to compete, non-disparagement and non-solicitation, employee retention, and other agreements as the Company deems appropriate, all in a form acceptable to the Board. Grantee acknowledges that his receipt of the Award and participation in the Plan is voluntary on his part and has not been induced by a promise of employment or continued employment.
§ 16 Withholding. The Grantee shall be required to pay to the Company, and the Company shall have the right to deduct from any compensation paid to the Grantee pursuant to the Plan, the amount of any required withholding taxes in respect of the PSUs and to take all such other action as the Committee deems necessary to satisfy all obligations for the payment of such withholding taxes. The Committee may permit the Grantee to satisfy any federal, state or local tax withholding obligation by any of the following means, or by a combination of such means:
| (a) | tendering a cash payment; |
| (b) | authorizing the Company to withhold shares of Common Stock from the Shares otherwise issuable or deliverable to the Grantee as a result of the vesting of the PSUs; or |
| (c) | delivering to the Company previously owned and unencumbered shares of Common Stock. |
Notwithstanding any action the Company takes with respect to any or all income tax, social insurance, payroll tax, or other tax-related withholding (“Tax-Related Items”), the ultimate liability for all Tax-Related Items is and remains the Grantee’s responsibility and the Company (a) makes no representation or undertakings regarding the treatment of any Tax-Related Items in connection with the grant, vesting or settlement of the PSUs or the subsequent sale of any shares, and (b) does not commit to structure the PSUs to reduce or eliminate the Grantee’s liability for Tax-Related Items.
§ 17 No Challenge. Notwithstanding any provision of this Award Agreement to the contrary, Grantee covenants and agrees that he or she will not (i) file any claim, lawsuit, demand for arbitration, or other proceeding challenging the validity or enforceability of any provision of this Award Agreement, or (ii) raise, as a defense, the validity or enforceability of any provision of this Award Agreement, in any claim, lawsuit, arbitration or other proceeding. Should Grantee violate any aspect of this § 17, Grantee agrees (A) that, in the case of a breach of clause (i) of the preceding sentence, such claim, lawsuit, demand for arbitration, or other proceeding shall be summarily withdrawn and/or dismissed; (B) that Grantee will pay all costs and damages incurred by the Company in responding to or as a result of such claim, lawsuit, demand for arbitration, or other proceeding (including reasonable attorneys’ fees and expenses), or such defense, as the case may be; (C) that Grantee will immediately forfeit all unvested PSUs; and (d) that Grantee will immediately sell to the Company all Shares received upon settlement of vested PSUs at a price equal to the aggregate purchase price, if any, paid by the Grantee for such Shares, or the current fair market value of such Shares (as determined in the sole discretion of the Company), whichever is less.
§ 18 Governing Law. The Plan and this Award Agreement shall be governed by the laws of the State of Delaware.
§ 19 Binding Effect. This Award Agreement shall be binding upon the Company and Grantee and their respective heirs, executors, administrators and successors.
§ 20 Section 409A. This Agreement and this award of PSUs is intended to comply with the short-term deferral exception to Code Section 409A and any regulations or guidance that may be adopted thereunder from time to time and shall be interpreted by the Committee to effect such intent. This Section 20 does not create any obligation on the part of the Company to modify the terms of this Agreement or the Plan and does not guarantee that the PSUs or the delivery of Shares upon settlement of the PSUs will not be subject to taxes, interest and penalties or any other adverse tax consequences under Code Section 409A. The Company will have no liability to the Grantee or any other party if the PSUs, the delivery of Shares upon settlement of the PSUs or any other payment hereunder that is intended to be exempt from, or compliant with, Code Section 409A, is not so exempt or compliant or for any action taken by the Committee with respect thereto.
§ 21 Headings and Sections. The headings contained in this Award Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Award Agreement. Any references to sections (§) in this Award Agreement shall be to sections (§) of this Award Agreement, unless otherwise expressly stated as part of such reference.
| Accepted and agreed to: |
| Grantee |
| Date: |
Exhibit 10.2
WINGSTOP INC.
2015 OMNIBUS INCENTIVE COMPENSATION PLAN
SERVICE–BASED RESTRICTED STOCK UNIT AGREEMENT
This Service-based Restricted Stock Unit Agreement (this “Award Agreement”) evidences the grant by Wingstop Inc. (the “Company”), in accordance with the Wingstop Inc. 2015 Omnibus Incentive Compensation Plan (the “Plan”), of restricted stock units (“RSUs”), subject to the restrictions set forth in this Award Agreement and the Plan (the “Award”), to (the “Grantee”), effective as of (the “Grant Date”).
| WINGSTOP INC. | ||
| By: |
| |
| Name: | ||
| Title: | ||
TERMS AND CONDITIONS
§ 1 Plan. The Award is subject to all of the terms and conditions set forth in the Plan and this Award Agreement, and all capitalized terms not otherwise defined in this Award Agreement have the respective meaning of such terms as defined in the Plan. If a determination is made that any term or condition set forth in this Award Agreement is inconsistent with the Plan, the Plan will control. A copy of the Plan will be made available to Grantee upon written request to the Secretary of the Company
§ 2 Grant of RSUs. Each RSU represents the right to receive one share of $0.01 par value Common Stock of the Company (a “Share”), subject to the terms and conditions set forth in this Agreement and the Plan. The RSUs shall be credited to a separate account maintained for the Grantee on the books and records of the Company (the “Account”). All amounts credited to the Account shall continue for all purposes to be part of the general assets of the Company.
§ 3 Consideration. The grant of RSUs is made in consideration of the services to be rendered by the Grantee to the Company.
§ 4 Vesting. Except as otherwise provided herein, provided that the Grantee has not incurred a Termination as of the applicable vesting date, the RSUs will vest in accordance with the following schedule:
| Vesting Date |
Number of RSUs | |
| anniversary of the Grant Date | of the RSUs | |
| anniversary of the Grant Date | of the RSUs | |
| anniversary of the Grant Date | of the RSUs | |
(a) The foregoing vesting schedule notwithstanding, except as provided in Section 4(b) or (c), upon the Grantee’s Termination for any reason at any time before all of his or her RSUs have vested, the Grantee’s unvested RSUs shall be automatically forfeited upon such Termination and the Company shall not have any further obligations to the Grantee under this Agreement.
(b) In the case of the Grantee’s death or Disability, for purposes of determining vesting under this Section 4, the Grantee’s employment will be deemed to have been terminated on the next scheduled anniversary date of the Grant Date for the purposes of vesting, and that period will count towards the applicable vesting schedule. For purposes of this Section 4(b), “Disability” has the same meaning as such term is defined in the Company’s long-term disability insurance policies which now or hereafter cover the permanent disability of Grantee or, in absence of such policies, means the inability of Grantee to work in a customary day-to-day capacity for six (6) consecutive months or for six (6) months within a twelve (12) month period, as determined by the Board.
(c) [In the event a Change in Control occurs and within months prior to or years after such Change in Control (A) Grantee’s employment is terminated by the Company without Cause, or (B) Grantee’s employment is terminated by the Grantee for Good Reason, the unvested portion of the RSUs shall become fully vested and nonforfeitable as of the date of the Grantee’s Termination of employment.]
§ 5 Dividend Equivalents. If, prior to the date RSUs are settled pursuant to Section 6, the Company declares a cash or stock dividend with respect to shares of Common Stock, then, on the payment date of the dividend, the Grantee’s Account shall be credited with Dividend Equivalents in an amount equal to the dividends that would have been paid to the Grantee if one Share had been issued on the Grant Date for each RSU granted to the Grantee as set forth in this Award Agreement. In connection with the Dividend Equivalents, any cash dividend credited to Grantee’s Account shall be adjusted with interest at a rate and subject to such terms as determined by the Committee. The Dividend Equivalents, and interest, if any, credited to the
Grantee’s Account shall be distributed in cash or, at the discretion of the Committee, in shares of Common Stock having a Fair Market Value equal to the amount of the Dividend Equivalents and interest, if any, subject to the same vesting, forfeiture, payment, termination and other terms, conditions and restrictions as the original RSUs to which they relate.
§ 6 Settlement.
(a) Vested RSUs shall be settled as soon as practicable following the date such RSUs are vested in accordance with Section 4 above (and in no event later than March 15 of the calendar year following the calendar year in which such RSUs become vested) by delivering to the Grantee one Share for each vested RSU. Upon receipt by the Grantee of a Share in settlement of a vested RSU, such RSU shall be cancelled.
(b) Notwithstanding Section 6(a), if the Grantee is deemed a “specified employee” within the meaning of Section 409A of the Code, as determined by the Committee, at a time when the Grantee becomes eligible for settlement of the RSUs upon his “separation from service” within the meaning of Section 409A of the Code, then to the extent such RSUs constitute deferred compensation within the meaning of Section 409A of the Code, such settlement will be delayed until the earlier of: (1) the date that is six months following the Grantee’s separation from service and (2) the Grantee’s death.
§ 7 Delivery. The Company will deliver a properly issued certificate for any Shares received in settlement of RSUs pursuant to Section 6 as soon as practicable after settlement (or otherwise register such Shares in the name of Grantee), and such delivery (or registration in the name of Grantee) shall discharge the Company of all of its duties and responsibilities with respect to the RSUs under this Award Agreement.
§ 8 Nontransferable. Subject to any exceptions set forth in this Award Agreement or the Plan, until such time as the RSUs are settled in accordance with Section 6, the RSUs or the rights relating thereto may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Grantee. Any attempt to assign, alienate, pledge, attach, sell or otherwise transfer or encumber the RSUs or the rights relating thereto shall be wholly ineffective.
§ 9 Release. As a condition to the delivery of the Shares received in settlement of RSUs pursuant to Section 6, the Company, at its option, may require Grantee to execute a general release on behalf of Grantee and Grantee’s heirs, executors, administrators and assigns, releasing all claims, actions and causes of action against the Company and each parent, subsidiary and former affiliate of the Company, and their respective current and former directors, officers, administrators, trustees, employees, agents, and other representatives. Such release must be in form and substance satisfactory to the Board.
§ 10 No Right to Continue Service. Neither the Plan, this Award Agreement, the Award, nor any related material shall give Grantee the right to continue in employment by Company or shall adversely affect the right of the Company to terminate Grantee’s employment with or without Cause at any time.
§ 11 Shareholder Status. The Grantee shall have no rights as a shareholder with respect to the RSUs until the Grantee receives a distribution of Shares in settlement of vested RSUs in accordance with Section 6, and such Shares have been duly issued and delivered to (or registered in the name of) the Grantee.
§ 12 Securities Registration. As a condition to the delivery of the certificate for any Shares purchased pursuant to the settlement of the RSUs pursuant to Section 4 (or the registration of such Shares in the name of the Grantee), Grantee shall, if so requested by the Company, hold such Shares for investment and not with a view of resale or distribution to the public and, if so requested by the Company, shall deliver to the Company a written statement satisfactory to the Company to that effect.
§ 13 Compliance with Law. The issuance and transfer of Shares shall be subject to compliance by the Company and the Grantee with all applicable requirements of federal and state securities laws and with all applicable requirements of any stock exchange on which the Company’s Shares may be listed. No Shares shall be issued or transferred unless and until any then applicable requirements of state and federal laws and regulatory agencies have been fully complied with to the satisfaction of the Company and its counsel. The Grantee understands that the Company is under no obligation to register the Shares with the Securities and Exchange Commission, any state securities commission, or any stock exchange to effect such compliance.
§ 14 Other Agreements. As a condition to the delivery of the Shares received in settlement of RSUs pursuant to Section 6, Grantee shall enter into such additional confidentiality, covenant not to compete, non-disparagement and non-solicitation, employee retention, and other agreements as the Company deems appropriate, all in a form acceptable to the Board. Grantee acknowledges that his receipt of the Award and participation in the Plan is voluntary on his part and has not been induced by a promise of employment or continued employment.
§ 15 Withholding. The Grantee shall be required to pay to the Company, and the Company shall have the right to deduct from any compensation paid to the Grantee pursuant to the Plan, the amount of any required withholding taxes in respect of the RSUs and to take all such other action as the Committee deems necessary to satisfy all obligations for the payment of such withholding taxes. The Committee may permit the Grantee to satisfy any federal, state or local tax withholding obligation by any of the following means, or by a combination of such means:
| (a) | tendering a cash payment; |
| (b) | authorizing the Company to withhold shares of Common Stock from the Shares otherwise issuable or deliverable to the Grantee as a result of the vesting of the RSUs; or |
| (c) | delivering to the Company previously owned and unencumbered shares of Common Stock. |
Notwithstanding any action the Company takes with respect to any or all income tax, social insurance, payroll tax, or other tax-related withholding (“Tax-Related Items”), the ultimate liability for all Tax-Related Items is and remains the Grantee’s responsibility and the Company (a) makes no representation or undertakings regarding the treatment of any Tax-Related Items in connection with the grant, vesting or settlement of the RSUs or the subsequent sale of any shares, and (b) does not commit to structure the RSUs to reduce or eliminate the Grantee’s liability for Tax-Related Items.
§ 16 No Challenge. Notwithstanding any provision of this Award Agreement to the contrary, Grantee covenants and agrees that he or she will not (i) file any claim, lawsuit, demand for arbitration, or other proceeding challenging the validity or enforceability of any provision of this Award Agreement, or (ii) raise, as a defense, the validity or enforceability of any provision of this Award Agreement, in any claim, lawsuit, arbitration or other proceeding. Should Grantee violate any aspect of this § 16, Grantee agrees (A) that, in the case of a breach of clause (i) of the preceding sentence, such claim, lawsuit, demand for arbitration, or other proceeding shall be summarily withdrawn and/or dismissed; (B) that Grantee will pay all costs and damages incurred by the Company in responding to or as a result of such claim, lawsuit, demand for arbitration, or other proceeding (including reasonable attorneys’ fees and expenses), or such defense, as the case may be; (C) that Grantee will immediately forfeit all unvested RSUs; and (d) that Grantee will immediately sell to the Company all Shares received upon settlement of vested RSUs at a price equal to the aggregate purchase price, if any, paid by the Grantee for such Shares, or the current fair market value of such Shares (as determined in the sole discretion of the Company), whichever is less.
§ 17 Governing Law. The Plan and this Award Agreement shall be governed by the laws of the State of Delaware.
§ 18 Binding Effect. This Award Agreement shall be binding upon the Company and Grantee and their respective heirs, executors, administrators and successors.
§ 19 Section 409A. This Agreement and this award of RSUs is intended to comply with the short-term deferral exception to Code Section 409A and any regulations or guidance that may be adopted thereunder from time to time and shall be interpreted by the Committee to effect such intent. This Section 19 does not create any obligation on the part of the Company to modify the terms of this Agreement or the Plan and does not guarantee that the RSUs or the delivery of Shares upon settlement of the RSUs will not be subject to taxes, interest and penalties or any other adverse tax consequences under Code Section 409A. The Company will have no liability to the Grantee or any other party if the RSUs, the delivery of Shares upon settlement of the RSUs or any other payment hereunder that is intended to be exempt from, or compliant with, Code Section 409A, is not so exempt or compliant or for any action taken by the Committee with respect thereto.
§ 20 Headings and Sections. The headings contained in this Award Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Award Agreement. Any references to sections (§) in this Award Agreement shall be to sections (§) of this Award Agreement, unless otherwise expressly stated as part of such reference.
| Accepted and agreed to: |
| Grantee |
| Date: |
Exhibit 10.3
WINGSTOP INC.
2015 OMNIBUS INCENTIVE COMPENSATION PLAN
RESTRICTED STOCK AWARD AGREEMENT
This Restricted Stock Award Agreement (this “Award Agreement”) evidences the grant by Wingstop Inc. (the “Company”), in accordance with the Wingstop Inc. 2015 Omnibus Incentive Compensation Plan (the “Plan”), of an award of shares of Common Stock of the Company (the “Restricted Stock”) subject to the restrictions set forth in this Award Agreement and the Plan (the “Award”) to (the “Grantee”), effective as of (the “Grant Date”).
| WINGSTOP INC. | ||
| By: |
| |
| Name: | ||
| Title: | ||
TERMS AND CONDITIONS
§ 1 Plan. The Award is subject to all of the terms and conditions set forth in the Plan and this Award Agreement, and all capitalized terms not otherwise defined in this Award Agreement have the respective meaning of such terms as defined in the Plan. If a determination is made that any term or condition set forth in this Award Agreement is inconsistent with the Plan, the Plan will control. A copy of the Plan will be made available to Grantee upon written request to the Secretary of the Company.
§ 2 Consideration. The grant of Restricted Stock is made in consideration of the services to be rendered by the Grantee to the Company.
§ 3 Restricted Period; Vesting. Except as otherwise provided herein, provided that the Grantee has not incurred a Termination as of the applicable vesting date, the Restricted Stock will vest in accordance with the following schedule:
| Vesting Date |
Shares of Restricted Stock | |
| anniversary of the Grant Date | of the shares of Restricted Stock | |
| anniversary of the Grant Date | of the shares of Restricted Stock | |
| anniversary of the Grant Date | of the shares of Restricted Stock | |
(a) The foregoing vesting schedule notwithstanding, upon the Grantee’s Termination for any reason at any time before all of his or her Restricted Stock has vested, the Grantee’s unvested Restricted Stock shall be automatically forfeited upon such Termination and the Company shall not have any further obligations to the Grantee under this Agreement.
(b) Unless otherwise determined by the Committee at the time of a Change in Control, if there is a Change in Control, then to the extent not otherwise vested pursuant to § 3, the unvested portion of the Restricted Stock shall be forfeited as of the date of the Change in Control.
§ 4 Restrictions. Subject to any exceptions set forth in this Agreement or the Plan, during the Restricted Period, the Restricted Stock or the rights relating thereto may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Grantee. Any attempt to assign, alienate, pledge, attach, sell or otherwise transfer or encumber the Restricted Stock or the rights relating thereto during the Restricted Period shall be wholly ineffective and, if any such attempt is made, the Restricted Stock will be forfeited by the Grantee and all of the Grantee’s rights to such shares shall immediately terminate without any payment or consideration by the Company.
§ 5 Rights as Shareholder; Dividends. The Grantee shall be the record owner of the Restricted Stock until the shares of Common Stock are sold or otherwise disposed of, and shall be entitled to all of the rights of a shareholder of the Company including, without limitation, the right to vote such shares and receive any and all dividends or other distributions paid with respect to those shares of Restricted Stock which the Grantee is the record owner on the record date for such dividend or other distribution; provided, however, that any property or cash (including, without limitation, any regular cash dividends) distributed with respect to a share of Restricted Stock (the “associated share”) acquired hereunder, including without limitation a distribution of shares of common stock by reason of a stock dividend, stock split or otherwise, or a distribution of other securities with respect to an associated share, shall be subject to the restrictions of this Award Agreement in the same manner and for so long as the associated share remains subject to such restrictions, and shall be promptly forfeited if and when the associated share is so forfeited; and further provided, that the Administrator may require that any cash distribution with respect to the shares of Restricted Stock be placed in escrow or otherwise made subject to such restrictions as the Administrator deems appropriate to carry out the intent of the Plan. Any cash amounts that would otherwise have been paid with respect to an associated share shall be accumulated and paid to the Grantee, without interest, only upon, or within thirty (30) days following, the date on which such associated share vests in accordance with this Award Agreement (such date, the “Vesting Date”) and any other property distributable with respect to an
associated share shall vest on the Vesting Date. References in this Award Agreement to the shares of Restricted Stock shall refer, mutatis mutandis, to any such restricted rights to cash or restricted property described in this Section 5.
§ 6 Delivery. The Company may issue evidence of the Grantee’s interest by issuing “book entry” Shares (i.e., a computerized or manual book entry account) in the records of the Company or its transfer agent in the Grantee’s name.
§ 7 Release. As a condition to the lapse of vesting restrictions set forth in this Award Agreement and the Plan or removal of any legend restricting the transferability of the shares of Restricted Stock pursuant to this Award Agreement, the Company, at its option, may require Grantee to execute a general release on behalf of Grantee and Grantee’s heirs, executors, administrators and assigns, releasing all claims, actions and causes of action against the Company and each parent, subsidiary and former affiliate of the Company, and their respective current and former directors, officers, administrators, trustees, employees, agents, and other representatives. Such release must be in form and substance satisfactory to the Board.
§ 8 No Right to Continue Service. Neither the Plan, this Award Agreement, the Award, nor any related material shall give Grantee the right to continue in employment by Company or shall adversely affect the right of the Company to terminate Grantee’s employment with or without Cause at any time.
§ 9 Section 83(b) Election. The Grantee may make an election under Code Section 83(b) (a “Section 83(b) Election”) with respect to the Restricted Stock. Any such election must be made within thirty (30) days after the Grant Date. If the Grantee elects to make a Section 83(b) Election, the Grantee shall provide the Company with a copy of an executed version and satisfactory evidence of the filing of the executed Section 83(b) Election with the U.S. Internal Revenue Service. The Grantee agrees to assume full responsibility for ensuring that the Section 83(b) Election is actually and timely filed with the U.S. Internal Revenue Service and for all tax consequences resulting from the Section 83(b) Election.
§ 10 Compliance with Law. The issuance and transfer of shares of Common Stock shall be subject to compliance by the Company and the Grantee with all applicable requirements of federal and state securities laws and with all applicable requirements of any stock exchange on which the Company’s shares of Common Stock may be listed. No shares of Common Stock shall be issued or transferred unless and until any then applicable requirements of state and federal laws and regulatory agencies have been fully complied with to the satisfaction of the Company and its counsel. The Grantee understands that the Company is under no obligation to register the shares of Common Stock with the Securities and Exchange Commission, any state securities commission, or any stock exchange to effect such compliance.
§ 11 Legends. A legend may be placed on any certificate(s), notice(s) of uncertificated shares, or other document(s) delivered to the Grantee indicating restrictions on transferability of the shares of Restricted Stock pursuant to this Agreement or any other
restrictions that the Committee may deem advisable under the rules, regulations and other requirements of the Securities and Exchange Commission, any applicable federal or state securities laws, or any stock exchange on which the shares of Common Stock are then listed or quoted.
§ 12 Other Agreements. Grantee shall (as a condition of the lapse of vesting restrictions set forth in this Award Agreement and the Plan or removal of any legend restricting the transferability of the shares of Restricted Stock pursuant to this Award Agreement) enter into such additional confidentiality, covenant not to compete, non-disparagement and non-solicitation, employee retention, and other agreements as the Company deems appropriate, all in a form acceptable to the Board. The shares of Restricted Stock may include one or more legends that reference or describe the conditions upon exercise referenced in this § 12. Grantee acknowledges that his receipt of the Award and participation in the Plan is voluntary on his part and has not been induced by a promise of employment or continued employment.
§ 13 Withholding. The Grantee shall be required to pay to the Company, and the Company shall have the right to deduct from any compensation paid to the Grantee pursuant to the Plan, the amount of any required withholding taxes in respect of the shares of Restricted Stock and to take all such other action as the Committee deems necessary to satisfy all obligations for the payment of such withholding taxes. The Committee may permit the Grantee to satisfy any federal, state or local tax withholding obligation by any of the following means, or by a combination of such means:
| (a) | tendering a cash payment; |
| (b) | authorizing the Company to withhold shares of Common Stock from the Shares otherwise issuable or deliverable to the Grantee as a result of the vesting of the shares of Restricted Stock; or |
| (c) | delivering to the Company previously owned and unencumbered shares of Common Stock. |
Notwithstanding any action the Company takes with respect to any or all income tax, social insurance, payroll tax, or other tax-related withholding (“Tax-Related Items”), the ultimate liability for all Tax-Related Items is and remains the Grantee’s responsibility and the Company (a) makes no representation or undertakings regarding the treatment of any Tax-Related Items in connection with the grant, vesting or settlement of the shares of Restricted Stock or the subsequent sale of any shares, and (b) does not commit to structure the shares of Restricted Stock to reduce or eliminate the Grantee’s liability for Tax-Related Items.
§ 14 No Challenge. Notwithstanding any provision of this Award Agreement to the contrary, Grantee covenants and agrees that he or she will not (i) file any claim, lawsuit, demand for arbitration, or other proceeding challenging the validity or enforceability of any provision of this Award Agreement, or (ii) raise, as a defense, the validity or enforceability of any provision of this Award Agreement, in any claim, lawsuit, arbitration or other proceeding. Should Grantee
violate any aspect of this § 14, Grantee agrees (A) that, in the case of a breach of clause (i) of the preceding sentence, such claim, lawsuit, demand for arbitration, or other proceeding shall be summarily withdrawn and/or dismissed; (B) that Grantee will pay all costs and damages incurred by the Company in responding to or as a result of such claim, lawsuit, demand for arbitration, or other proceeding (including reasonable attorneys’ fees and expenses), or such defense, as the case may be; (C) that Grantee will immediately forfeit all unvested shares of Restricted Stock; and (d) that Grantee will immediately sell to the Company all vested shares of Restricted Stock at a price equal to the fair market value of such shares on the Grant Date, or the current fair market value of such shares (as determined in the sole discretion of the Company), whichever is less.
§ 15 Governing Law. The Plan and this Award Agreement shall be governed by the laws of the State of Delaware.
§ 16 Binding Effect. This Award Agreement shall be binding upon the Company and Grantee and their respective heirs, executors, administrators and successors.
§ 17 Headings and Sections. The headings contained in this Award Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Award Agreement. Any references to sections (§) in this Award Agreement shall be to sections (§) of this Award Agreement, unless otherwise expressly stated as part of such reference.
| Accepted and agreed to: |
| Grantee |
| Date: |