1
EXHIBIT 99.5
RESTRICTED STOCK AGREEMENT
This Restricted Stock Agreement ("Agreement") is made and entered into
as of the Date of Award indicated below by and between Carl Karcher
Enterprises, Inc., a California corporation (the "Company"), and Donald E.
Doyle ("Executive").
WHEREAS, Executive is the President and Chief Executive Officer of the
Company; and
WHEREAS, in connection with the retention of Executive in such
capacities, the Board of Directors of the Company has approved the award to
Executive of the right to receive shares of the common stock of the Company
(the "Common Stock"), on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants set forth herein, the parties hereto hereby agree as follows:
1. Award; Certain Terms and Conditions. The Company hereby awards to
Executive, and Executive hereby accepts, as of the Date of Award, the right to
receive the number of shares of Common Stock indicated below (the "Restricted
Shares"). The Restricted Shares shall be subject to all of the terms and
conditions set forth in this Agreement, including the restrictions imposed
pursuant to Section 3 hereof; provided, however, that on each anniversary of
the Date of Award, such restrictions shall terminate with respect to that
number of Restricted Shares (rounded to the nearest whole share) equal to the
total number of Restricted Shares multiplied by the Annual Vesting Rate
indicated below (the termination of such restrictions with respect to any
Restricted Share, for any reason, shall be referred to herein as the "vesting"
of such share).
Date of Award: January 6, 1993
Number of shares purchasable: 12,121
Annual Vesting Rate: 33-1-3%
Vesting Dates: January 6, 1994
January 6, 1995
January 6, 1996
2. Consideration for Shares. The consideration for the issuance and
sale of Restricted Shares contemplated hereby consists of past services to the
Company and/or one or more of its subsidiaries.
3. Restrictions. Until a Restricted Share vests, it may not be sold,
assigned, conveyed, gifted, pledged, hypothecated or otherwise transferred in
any manner.
2
4. Acceleration of Vesting.
(a) Notwithstanding anything to the contrary in this Agreement, in
the event that Executive shall cease to be an employee of the Company or any of
its subsidiarires for any reason, or for no reason, within one year after a
Change of Control (as hereinafter defined), all then unvested Restricted Shares
shall vest upon the date of such event.
(b) "Change of Control" shall mean the first to occur of the
following events:
(i) any date upon which the directors of the Company who
were nominated by the Board of Directors (the "Board") for election
as directors cease to constitute a majority of the directors of the
Company;
(ii) the date of the first public announcement that any
person or entity, together with all Affiliates and Associates (as
such capitalized terms are defined in Rule 12b-2 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
such person or entity, shall have become the Beneficial Owner (as
defined in Rule 13d-3 promulgated under the Exchange Act) of voting
securities of the Company representing 50% or more of the voting power
of the Company (a "50% Stockholder"); provided, however, that the
terms "person" and "entity," as used in this clause (ii), shall not
include (A) the Company or any of its subsidiaries, (B) any employee
benefit plan of the Company or any of its subsidiaries, (C) any entity
holding voting securities of the Company for or pursuant to the terms
of any such plan or (D) any person or entity if the transaction that
resulted in such person or entity becoming a 50% Stockholder was
approved in advance by the Board; or
(iii) a reorganization, merger or consolidation of the
Company (other than a reorganization, merger or consolidation the sole
purpose of which is to change the Company's domicile solely within the
United States) the consummation of which results in the outstanding
securities of any class then comprising the Restricted Shares being
exchanged for or converted into cash, property and/or a different kind
of securities.
(c) In addition, the Board of Directors, in its sole discretion, may
accelerate the vesting of any or all of the Restricted Shares at any time.
5. Termination of Award. Notwithstanding anything to the contrary
in this Agreement, if Executive shall cease to be an employee of the Company or
any of its subsidiaries for any reason, or for no reason, then, unless the
Board of
2
3
Directors shall determine otherwise, the then unvested portion of award of
Restricted Shares shall terminate and be of no further force and affect.
6. Payment of Withholding Taxes. If the Company becomes obligated to
withhold an amount on account of any federal, state or local tax imposed as a
result of the sale of the Restricted Shares to Executive pursuant to this
Agreement or the termination of the restrictions imposed upon the Restricted
Shares hereunder, including, without limitation, any federal, state or other
income tax, or any F.I.C.A., state disability insurance tax or other employment
tax (the date upon which the Company becomes so obligated shall be referred to
herein as the "Withholding Date"), then Executive shall pay such amount (the
"Withholding Liability") to the Company on the Withholding Date in cash or by
check payable to the Company.
7. Escrow.
(a) Until a Restricted Share vests, (i) the record address of the
holder of record of such Restricted Share shall be c/o the Secretary of the
Company at the address of the Company's principal executive office, (ii) the
stock certificate representing such Restricted Share (together with any
dividends, cash, property and/or securities comprising all or any part of such
Restricted Share as provided in Section 9 hereof) shall be held in escrow in
the custody of the Secretary of the Company, duly endorsed in blank or
accompanied by a duly executed stock powers, and (iii) such stock certificate
shall contain the following legend:
"The transfer and registration of transfer of the securities
represented by this certificate are subject to certain restrictions as
provided in a Restricted Stock Agreement dated as of January 6, 1993 by
and between the Corporation and Donald E. Doyle."
(b) From and after the date upon which a Restricted Share vests, the
holder of record of such Restricted Share shall be entitled (provided that
Executive shall have paid the Withholding Liability to the Company pursuant to
Section 6 hereof) to receive the stock certificate representing such Restricted
Share (together with any cash, property and/or securities comprising all or any
part of such Restricted Share as provided in Section 8 hereof), which stock
certificate shall not contain the legend set forth in subsection (a)(iii)
above.
9. Voting; Dividends; Certain Corporate Transactions. Except upon the
vesting of each installment of Restricted Shares, Executive shall not be
entitled to exercise any voting rights with respect to such Restricted Shares
or to receive any cash dividends paid with respect thereto. In the event that
the outstanding securities of any class then comprising the Restricted Shares
(whether vested or unvested) are increased, decreased or exchanged for or
converted into cash, property and/or a different number or kind of securities,
or cash, property and/or securities are distributed in respect of such
outstanding securities, in either case as a result of a
3
4
reorganization, merger, consolidation, recapitalization, reclassification,
dividend (other than a regular, quartelry cash dividend) or other distribution,
stock split, reverse stock split or the like, then, unless the Board of
Directors shall determine otherwise, the term "Restricted Shares" shall, from
and after the date of such event, include such cash, property and/or securities
so distributed in respect of the Restricted Shares, or into or for which the
Restricted Shares are so increased, decreased, exchanged or converted.
10. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of California
without reference to choice or conflict of law principles.
IN WITNESS WHEREOF, the Company and Executive have duly executed this
Agreement as of the Date of Award.
CARL KARCHER ENTERPRISES, INC.
By _____________________________
Title
Executive
________________________________
Signature
________________________________
Street Address
________________________________
City, State and Zip Code
________________________________
Social Security Number
4