Attached files
| file | filename |
|---|---|
| EX-10.4 - RUBIOS RESTAURANTS INC | v171326_ex10-4.htm |
| EX-10.1 - RUBIOS RESTAURANTS INC | v171326_ex10-1.htm |
| EX-10.5 - RUBIOS RESTAURANTS INC | v171326_ex10-5.htm |
| EX-10.6 - RUBIOS RESTAURANTS INC | v171326_ex10-6.htm |
| EX-10.2 - RUBIOS RESTAURANTS INC | v171326_ex10-2.htm |
| EX-10.3 - RUBIOS RESTAURANTS INC | v171326_ex10-3.htm |
| EX-10.7 - RUBIOS RESTAURANTS INC | v171326_ex10-7.htm |
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
8-K
Current
Report Pursuant to Section 13 or 15(d) of
the
Securities Exchange Act of 1934
Date of Report (Date of Earliest
Event Reported): January 8, 2010
RUBIO’S
RESTAURANTS, INC.
(Exact
Name of Registrant as Specified in Charter)
|
Delaware
|
000-26125
|
33-0100303
|
||
|
(State
of Incorporation)
|
|
(Commission
File Number)
|
|
(I.R.S.
Employer Identification No.)
|
|
1902
Wright Place, Suite 300, Carlsbad, California
|
92008
|
|||
|
(Address
of Principal Executive Offices)
|
(Zip
Code)
|
|||
Registrant's telephone number,
including area
code: (760)
929-8226
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.
|
Amended and Restated Change of
Control Agreements
On
December 16, 2008, the Company entered into Change of Control Agreements with
the members of its executive management team, including its principal financial
officer, Frank Henigman(Senior Vice President and Chief Financial Officer), and
its other named executive officers, Ken C. Hull (Senior Vice President of
Development) and Marc S. Simon (Chief Operating Officer). These
Change of Control Agreements provide that if the executive is terminated without
cause or resigns for good reason within 12 months following the closing date of
a change of control of the Company, (i) the Company will pay the executive
severance equal to six months of the executive’s base salary, and (ii) if the
executive timely makes an election to continue coverage under the Company’s
group health plan pursuant to COBRA, the Company will pay the executive’s COBRA
premiums for a maximum period of six months, provided the executive does not
become eligible for health coverage through another employer during this
period.
On
January 8, 2010, the Company amended and restated these Change of Control
Agreements to provide that if Messrs. Henigman, Hull or Simon are terminated
without cause or resign for good reason within 12 months following the closing
date of a change of control, (i) the Company will pay Mr. Henigman and Mr. Hull
severance equal to nine months of their respective base salaries and Mr. Simon
severance equal to twelve months of his base salary, and (ii) if Messrs.
Henigman, Hull or Simon timely make an election to continue coverage under the
Company’s group health plan pursuant to COBRA, the Company will pay Mr.
Henigman’s and Mr. Hull’s COBRA premiums for a maximum period of nine months and
Mr. Simon’s COBRA premium for a maximum period of twelve months, provided these
executives do not become eligible for health coverage through another employer
during the applicable period.
Copies of
the Amended and Restated Change of Control Agreements with Messrs. Henigman,
Hull and Simon are attached hereto as Exhibits 10.1, Exhibit 10.2 and Exhibit
10.3, respectively, and are incorporated herein by reference. The
description the foregoing agreements are qualified in their entirety by
reference to the full text of the agreements attached as exhibits
hereto.
Restricted Stock Unit
Agreements
On
January 8, 2010, a Subcommittee of the Compensation Committee of the Company’s
Board of Directors (the “Subcommittee”) adopted a form of Restricted Stock Unit
Award Agreement under the Company’s 2008 Equity Incentive Plan (the “Plan”) and
awarded restricted stock units (“RSUs”) to the members of the Company’s
executive management team, including the Company’s named executive officers. The
RSUs will entitle the recipient to one share of the Company’s common stock for
each RSU when the applicable vesting period for that RSU is
satisfied. The RSU were granted to the members of the executive
management team as part of their annual compensation for fiscal year 2010 in
accordance with the Company’s long-term incentive program.
The RSUs
granted to the Company’s named executive officers and principal financial
officer include:
|
Named
Executive Officer
|
Number of RSUs
Awarded
|
|||
|
Daniel
E. Pittard, President and Chief Executive Officer
|
15,840 | |||
|
Marc
S. Simon, Chief Operating Officer
|
11,880 | |||
|
Frank
Henigman, Chief Financial Officer and Senior Vice
President
|
7,920 | |||
|
Ken
C. Hull, Senior Vice President of Development
|
7,920 | |||
Pursuant
to the terms of each RSU agreement, the RSUs are scheduled to vest in full in
one installment on January 8, 2013.
If an
executive’s employment with the Company terminates for any reason, then the RSUs
that remain unvested as of the date of the termination of the executive’s
employment will be forfeited immediately without compensation; provided however,
that if an executive is terminated without cause or resigns for good reason
within 12 months following the closing date of a change of control of the
Company, then all RSU’s that are unvested as of the time of such termination
shall immediately vest in full on an accelerated basis.
The
description of the RSUs set forth herein is qualified in its entirety by
reference to the complete terms and conditions of the Form of Restricted Stock
Unit Award filed as Exhibit 10.4 hereto and the Plan, filed as Exhibit
10.76 to the Company’s annual report on Form 10-K for the fiscal year ended
December 28, 2008, copies of which are incorporated herein by
reference. The Form of Notice of Grant of Restricted Stock Units is
attached hereto as Exhibit 10.5 and incorporated herein by
reference.
Performance Based Restricted
Stock Unit Agreements
On
January 8, 2010, the Subcommittee adopted a form of Performance Based Restricted
Stock Unit Award Agreement under the Plan and awarded performance based
restricted stock units (“Performance Based RSUs”) to Messrs. Pittard, Simon and
Henigman. The RSUs will entitle the recipient to one share of the
Company’s common stock for each RSU when the applicable vesting condition for
that RSU is satisfied.
The
Performance Based RSUs granted to Messrs. Pittard, Simon and Henigman include,
up to a maximum of:
|
Named
Executive Officer
|
Number of RSUs
Awarded
|
|||
|
Daniel
E. Pittard, President and Chief Executive Officer
|
59,375 | |||
|
Marc
S. Simon, Chief Operating Officer
|
42,000 | |||
|
Frank
Henigman, Chief Financial Officer and Senior Vice
President
|
28,000 | |||
The vesting of the Performance Based
RSUs will be (i) contingent upon a change of control of the Company occurring
during fiscal 2010, and (ii) based on the share price paid to the Company’s
stockholders in the change of control transaction. Stockholders must
be paid a minimum of $9.00 per share in the change of control transaction for
any portion of the Performance Based RSUs to vest and $16.00 per share in the
change of control transaction for the Performance Based RSUs to vest in
full. The Performance Based RSUs vest on an incremental basis if the
Company’s stockholders receive between $9.00 per share and $16.00 per share in a
change of control transaction.
If an
executive’s employment with the Company terminates for any reason prior to a
change of control of the Company, then the RSUs that remain unvested as of the
date of the termination of the executive’s employment will be forfeited
immediately without compensation.
The
description of the Performance Based RSUs set forth herein is qualified in its
entirety by reference to the complete terms and conditions of the Form of
Performance Based Restricted Stock Unit Award filed as Exhibit 10.6 hereto
and the Plan, filed as Exhibit 10.76 to the Company’s annual report on Form 10-K
for the fiscal year ended December 28, 2008, copies of which are incorporated
herein by reference. The Form of Notice of Grant of Performance Based
Restricted Stock Units is attached hereto as Exhibit 10.7 and incorporated
herein by reference.
2010 Executive
Compensation
On January 8, 2010, the Compensation
Committee approved an increase in Mr. Henigman’s fiscal 2010 base salary from
$215,000 to $230,000. The fiscal 2010 base salaries of the Company’s
other named executive officers will remain the same as fiscal year
2009.
Item
9.01. Financial Statements and Exhibits.
(d) Exhibits
|
Exhibit
No.
|
Description
|
|
10.1
|
Amended
and Restated Change of Control Agreement, dated January 8, 2010, by and
between the Company and Frank Henigman.
|
|
10.2
|
Amended
and Restated Change of Control Agreement, dated January 8, 2010, by and
between the Company and Ken C. Hull.
|
|
10.3
|
Amended
and Restated Change of Control Agreement, dated January 8, 2010, by and
between the Company and Marc S. Simon.
|
|
10.4
|
Form
of Restricted Stock Unit Agreement.
|
|
10.5
|
Form
of Notice of Grant of Restricted Stock Units
|
|
10.6
|
Form
of Performance Based Restricted Stock Unit Agreement.
|
|
10.7
|
Form
of Notice of Grant of Performance Based Restricted Stock
Units
|
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned thereunto
duly authorized.
Dated: January
14, 2010
|
RUBIO’S
RESTAURANTS, INC.
|
|
|
By:
|
/s/ Frank Henigman
|
|
Frank
Henigman
|
|
|
Chief
Financial Officer
|
|
EXHIBIT
INDEX
|
Exhibit
No.
|
Description
|
|
10.1
|
Amended
and Restated Change of Control Agreement, dated January 8, 2010, by and
between the Company and Frank Henigman.
|
|
10.2
|
Amended
and Restated Change of Control Agreement, dated January 8, 2010, by and
between the Company and Ken C. Hull.
|
|
10.3
|
Amended
and Restated Change of Control Agreement, dated January 8, 2010, by and
between the Company and Marc S. Simon.
|
|
10.4
|
Form
of Restricted Stock Unit Agreement.
|
|
10.5
|
Form
of Notice of Grant of Restricted Stock Units
|
|
10.6
|
Form
of Performance Based Restricted Stock Unit Agreement.
|
|
10.7
|
Form
of Notice of Grant of Performance Based Restricted Stock
Units
|