Exhibit
10.60

 




 

RUBIO’S
RESTAURANTS, INC.

STOCK
ISSUANCE AGREEMENT

 







AGREEMENT
made
this       
day
of                         
, by and
between Rubio’s Restaurants, Inc., a Delaware corporation, and                           
 , a
Participant in the Corporation’s 1999 Stock Incentive Plan.

 

All
capitalized terms in this Agreement shall have the meaning assigned to them in
this Agreement or in the attached Appendix.

 

A.  PURCHASE
OF SHARES

 

1.  Purchase.   Participant hereby
purchases               shares
of Common Stock (the “Purchased Shares”) pursuant to the provisions of the Stock
Issuance Program at the purchase price of $______ per share (the “Purchase
Price”).

 

2.  Payment.   Concurrently with the
delivery of this Agreement to the Corporation, Participant shall pay the
Purchase Price for the Purchased Shares in cash or check payable to the
Corporation and shall deliver a duly-executed blank Assignment Separate from
Certificate (in the form attached hereto as Exhibit I) with respect to the
Purchased Shares.

 

3.  Stockholder
Rights.   Until such time as the
Corporation exercises the Repurchase Right, Participant (or any successor in
interest) shall have all the rights of a stockholder (including voting, dividend
and liquidation rights) with respect to the Purchased Shares, subject, however,
to the transfer restrictions of this Agreement.

 

4.  Escrow.   The Corporation shall
have the right to hold the Purchased Shares in escrow until those shares have
vested in accordance with the Vesting Schedule.

 

5.  Compliance
with Law.   Under no circumstances
shall shares of Common Stock or other assets be issued or delivered to
Participant pursuant to the provisions of this Agreement unless, in the opinion
of counsel for the Corporation or its successors, there shall have been
compliance with all applicable requirements of Federal and state securities
laws, all applicable listing requirements of any stock exchange (or the Nasdaq
National Market, if applicable) on which the Common Stock is at the time listed
for trading and all other requirements of law or of any regulatory bodies having
jurisdiction over such issuance and delivery.

 

 




















 

B.  TRANSFER
RESTRICTIONS

 

1.  Restriction
on Transfer.   Except for any Permitted
Transfer, Participant shall not transfer, assign, encumber or otherwise dispose
of any of the Purchased Shares which are subject to the Repurchase Right.


 

2.  Restrictive
Legend.   The stock certificate for
the Purchased Shares shall be endorsed with the following restrictive
legend:

 

“The
shares represented by this certificate are unvested and subject to certain
repurchase rights granted to the Corporation and accordingly may not be sold,
assigned, transferred, encumbered, or in any manner disposed of except in
conformity with the terms of a written agreement dated ____________, ______
between the Corporation and the registered holder of the shares (or the
predecessor in interest to the shares). A copy of such agreement is maintained
at the Corporation’s principal corporate offices.”

 

3.  Transferee
Obligations.   Each person (other than
the Corporation) to whom the Purchased Shares are transferred by means of a
Permitted Transfer must, as a condition precedent to the validity of such
transfer, acknowledge in writing to the Corporation that such person is bound by
the provisions of this Agreement and that the transferred shares are subject to
the Repurchase Right to the same extent such shares would be so subject if
retained by Participant.

 

C.  REPURCHASE
RIGHT

 

1.  Grant.   The Corporation is hereby
granted the right (the “Repurchase Right”), exercisable at any time during the
ninety (90)-day period following the date Participant ceases for any reason to
remain in Service, to repurchase at the Purchase Price all or any portion of the
Purchased Shares in which Participant is not, at the time of his or her
cessation of Service, vested in accordance with the Vesting Schedule set forth
in Paragraph C.3 of this Agreement or the special vesting acceleration
provisions of Paragraph C.5 of this Agreement (such shares to be hereinafter
referred to as the “Unvested Shares”).

 

2.  Exercise
of the Repurchase Right.   The Repurchase Right
shall be exercisable by written notice delivered to each Owner of the Unvested
Shares prior to the expiration of the ninety (90)-day exercise period. The
notice shall indicate the number of Unvested Shares to be repurchased and the
date on which the repurchase is to be effected, such date to be not more than
thirty (30) days after the date of such notice. The certificates representing
the Unvested Shares to be repurchased shall be delivered to the Corporation on
or before the close of business on the date specified for the repurchase.
Concurrently with the receipt of such stock certificates, the Corporation shall
pay to Owner, in cash or cash equivalent (including the cancellation of any
purchase-money indebtedness), an amount equal to the Purchase Price previously
paid for the Unvested Shares to be repurchased from Owner.

 

3.  Termination
of the Repurchase Right.   The Repurchase Right
shall terminate with respect to any Unvested Shares for which it is not timely
exercised under Paragraph C.2. In addition, the Repurchase Right shall terminate
and cease to be exercisable with respect to any and all Purchased Shares in
which Participant vests in accordance with the following Vesting
Schedule:

 

 







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(i)  Upon
Participant’s completion of one (1) year of Service measured from
______________, _______, Participant shall acquire a vested interest in, and the
Repurchase Right shall lapse with respect to, twenty-five percent (25%) of the
Purchased Shares.

 

(ii)  Participant
shall acquire a vested interest in, and the Repurchase Right shall lapse with
respect to, the remaining Purchased Shares in a series of thirty six (36)
successive equal monthly installments upon Participant’s completion of each
additional month of Service over the thirty-six (36)-month period measured from
the initial vesting date under subparagraph (i) above.

 

4.  Recapitalization.   Any new, substituted or
additional securities or other property (including cash paid other than as a
regular cash dividend) which is by reason of any Recapitalization distributed
with respect to the Purchased Shares shall be immediately subject to the
Repurchase Right and any escrow requirements hereunder, but only to the extent
the Purchased Shares are at the time covered by such right or escrow
requirements. Appropriate adjustments to reflect such distribution shall be made
to the number and/or class of securities subject to this Agreement and to the
price per share to be paid upon the exercise of the Repurchase Right in order to
reflect the effect of any such Recapitalization upon the Corporation’s capital
structure; provided,
however, that the aggregate purchase price shall remain the same.

 

5.  Corporate
Transaction.

 

(a)  Immediately
prior to the consummation of any Corporate Transaction, the Repurchase Right
shall automatically lapse in its entirety and the Purchased Shares shall vest in
full, except to the extent the Repurchase Right is to be assigned to the
successor corporation (or parent thereof) in connection with the Corporate
Transaction.

 

(b)  To the
extent the Repurchase Right remains in effect following a Corporate Transaction,
such right shall apply to the new capital stock or other property (including any
cash payments) received in exchange for the Purchased Shares in consummation of
the Corporate Transaction, but only to the extent the Purchased Shares are at
the time covered by such right. Appropriate adjustments shall be made to the
price per share payable upon exercise of the Repurchase Right to reflect the
effect of the Corporate Transaction upon the Corporation’s capital structure;
provided,
however, that the aggregate purchase price shall remain the same. The new
securities or other property (including cash payments) issued or distributed
with respect to the Purchased Shares in consummation of the Corporate
Transaction shall immediately be deposited in escrow with the Corporation (or
the successor entity) and shall not be released from escrow until Participant
vests in such securities or other property in accordance with the same Vesting
Schedule in effect for the Purchased Shares.

 

 







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D.  SPECIAL
TAX ELECTION

 

1.  Section
83(b) Election.   Under Code Section 83,
the excess of the fair market value of the Purchased Shares on the date any
forfeiture restrictions applicable to such shares lapse over the Purchase Price
paid for such shares will be reportable as ordinary income on the lapse date.
For this purpose, the term “forfeiture restrictions” includes the right of the
Corporation to repurchase the Purchased Shares pursuant to the Repurchase Right.
Participant may elect under Code Section 83(b) to be taxed at the time the
Purchased Shares are acquired, rather than when and as such Purchased Shares
cease to be subject to such forfeiture restrictions. Such election must be filed
with the Internal Revenue Service within thirty (30) days after the date of this
Agreement. Even if the fair market value of the Purchased Shares on the date of
this Agreement equals the Purchase Price paid (and thus no tax is payable), the
election must be made to avoid adverse tax consequences in the future.
THE
FORM FOR MAKING THIS ELECTION IS ATTACHED AS EXHIBIT II
HERETO. PARTICIPANT
UNDERSTANDS THAT FAILURE TO MAKE THIS FILING WITHIN THE APPLICABLE THIRTY
(30)-DAY PERIOD WILL RESULT IN THE RECOGNITION OF ORDINARY INCOME AS THE
FORFEITURE RESTRICTIONS LAPSE.

 

2.  FILING
RESPONSIBILITY.   PARTICIPANT ACKNOWLEDGES
THAT IT IS PARTICIPANT’S SOLE RESPONSIBILITY, AND NOT THE CORPORATION’S, TO FILE
A TIMELY ELECTION UNDER CODE SECTION 83(b), EVEN IF PARTICIPANT REQUESTS THE
CORPORATION OR ITS REPRESENTATIVES TO MAKE THIS FILING ON HIS OR HER
BEHALF.

 

E.  GENERAL
PROVISIONS

 

1.  Assignment.   The Corporation may
assign the Repurchase Right to any person or entity selected by the Board,
including (without limitation) one or more stockholders of the
Corporation.

 

2.  At
Will Employment.   Nothing in this Agreement
or in the Plan shall confer upon Participant any right to continue in Service
for any period of specific duration or interfere with or otherwise restrict in
any way the rights of the Corporation (or any Parent or Subsidiary employing or
retaining Participant) or of Participant, which rights are hereby expressly
reserved by each, to terminate Participant’s Service at any time for any reason,
with or without cause.

 

3.  Notices.   Any notice required to be
given under this Agreement shall be in writing and shall be deemed effective
upon personal delivery or upon deposit in the U.S. mail, registered or
certified, postage prepaid and properly addressed to the party entitled to such
notice at the address indicated below such party’s signature line on this
Agreement or at such other address as such party may designate by ten (10) days
advance written notice under this paragraph to all other parties to this
Agreement.

 

 







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4.  No
Waiver.   The failure of the
Corporation in any instance to exercise the Repurchase Right shall not
constitute a waiver of any other repurchase rights that may subsequently arise
under the provisions of this Agreement or any other agreement between the
Corporation and Participant. No waiver of any breach or condition of this
Agreement shall be deemed to be a waiver of any other or subsequent breach or
condition, whether of like or different nature.

 

5.  Cancellation
of Shares.   If the Corporation shall
make available, at the time and place and in the amount and form provided in
this Agreement, the consideration for the Purchased Shares to be repurchased in
accordance with the provisions of this Agreement, then from and after such time,
the person from whom such shares are to be repurchased shall no longer have any
rights as a holder of such shares (other than the right to receive payment of
such consideration in accordance with this Agreement). Such shares shall be
deemed purchased in accordance with the applicable provisions hereof, and the
Corporation shall be deemed the owner and holder of such shares, whether or not
the certificates therefor have been delivered as required by this
Agreement.

 

6.  Participant
Undertaking.   Participant hereby agrees
to take whatever additional action and execute whatever additional documents the
Corporation may deem necessary or advisable in order to carry out or effect one
or more of the obligations or restrictions imposed on either Participant or the
Purchased Shares pursuant to the provisions of this Agreement.

 

7.  Agreement
is Entire Contract.   This Agreement
constitutes the entire contract between the parties hereto with regard to the
subject matter hereof. This Agreement is made pursuant to the provisions of the
Plan and shall in all respects be construed in conformity with the terms of the
Plan.

 

8.  Governing
Law.   This Agreement shall be
governed by, and construed in accordance with, the laws of the State of
California without resort to that State’s conflict-of-laws rules.

 

9.  Counterparts.   This Agreement may be
executed in counterparts, each of which shall be deemed to be an original, but
all of which together shall constitute one and the same instrument.

 

10.  Successors
and Assigns.   The provisions of this
Agreement shall inure to the benefit of, and be binding upon, the Corporation
and its successors and assigns and upon Participant, Participant’s assigns and
the legal representatives, heirs and legatees of Participant’s estate, whether
or not any such person shall have become a party to this Agreement and have
agreed in writing to join herein and be bound by the terms hereof.

 








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IN
WITNESS WHEREOF, the
parties have executed this Agreement on the day and year first indicated
above.

 


	 	
      RUBIO’S
      RESTAURANTS, INC.

	 	 
	 	 
	 	
      By:______________________________________

	 	 
	 	
      Title:____________________________________

	 	 
	 	
      Address:_________________________________

	 	 
	 	
      ________________________________________

	 	 
	 	 
	 	
      PARTICIPANT

	 	 
	 	 
	 	
      __________________________________________

	 	
      Signature

	 	 
	 	 
	 	
      Address:__________________________________

	 	 
	 	
      _________________________________________

	 	 
	 	 















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SPOUSAL
ACKNOWLEDGMENT

 

The
undersigned spouse of the Participant has read and hereby approves the foregoing
Stock Issuance Agreement. In consideration of the Corporation’s granting the
Participant the right to acquire the Purchased Shares in accordance with the
terms of such Agreement, the undersigned hereby agrees to be irrevocably bound
by all the terms of such Agreement, including (without limitation) the right of
the Corporation (or its assigns) to purchase any Purchased Shares in which the
Participant is not vested at the time of his or her termination of
Service.

 





	 	
      _________________________________________

	 	
      PARTICIPANT’S
      SPOUSE

	 	 
	 	
      Address:_________________________________

	 	 
	 	
      ________________________________________

	 	 




































EXHIBIT
I

ASSIGNMENT
SEPARATE FROM CERTIFICATE




 

FOR VALUE
RECEIVED                        hereby
sell(s), assign(s) and transfer(s) unto Rubio’s Restaurants, Inc. (the
“Corporation”),  
                      
(  
     ) shares
of the Common Stock of the Corporation standing in his or her name on the books
of the Corporation represented by Certificate No.                   
herewith
and do(es) hereby irrevocably constitute and appoint
______________________________ Attorney to transfer the said stock on the books
of the Corporation with full power of substitution in the premises.

 

Dated:
_________________, _____.







            Signature
_______________________________________________ 














































Instruction: Please
do not fill in any blanks other than the signature line. Please sign exactly as
you would like your name to appear on the issued stock certificate. The purpose
of this assignment is to enable the Corporation to exercise the Repurchase Right
without requiring additional signatures on the part of Participant.

 




























EXHIBIT
II

 

SECTION
83(b)
TAX ELECTION

 

This
statement is being made under Section 83(b) of the Internal Revenue Code,
pursuant to Treas. Reg. Section 1.83-2.

 


	
      (1)
	
      The
      taxpayer who performed the services is:




 

Name:

Address:

Taxpayer
Ident. No.:

 



	
      (2)
	
      The
      property with respect to which the election is being made is            
      shares
      of the common stock of Rubio’s Restaurants,
Inc.








 


	(3) 	The property was issued on _________________,
      _________.




   


	
      (4)
	
      The
      taxable year in which the election is being made is the calendar year
      _________.




 


	
      (5)
	
      The
      property is subject to a repurchase right pursuant to which the issuer has
      the right to acquire the property at the original purchase price if for
      any reason taxpayer’s service with the issuer terminates. The issuer’s
      repurchase right lapses in a series of annual and monthly installments
      over a four (4)-year period ending on                .




 


	
      (6)
	
      The
      fair market value at the time of transfer (determined without regard to
      any restriction other than a restriction which by its terms will never
      lapse) is $             per
      share.




 


	
      (7)
	
      The
      amount paid for such property is $           
      per
      share.




 



	
      (8)
	
      A
      copy of this statement was furnished to Rubio’s Restaurants, Inc. for whom
      taxpayer rendered the services underlying the transfer of
      property.








 


	(9) 	This statement is executed on ________________________,
      _______.




 

 




____________________________________________________________________________________________________________________

Spouse
(if any)    Taxpayer

 

This
election must be filed with the Internal Revenue Service Center with which
taxpayer files his or her Federal income tax returns and must be made within
thirty (30) days after the execution date of the Stock Issuance Agreement. This
filing should be made by registered or certified mail, return receipt requested.
Participant must retain two (2) copies of the completed form for filing with his
or her Federal and state tax returns for the current tax year and an additional
copy for his or her records.

 




























APPENDIX







The
following definitions shall be in effect under the Agreement:

 

A.   Agreement shall
mean this Stock Issuance Agreement.

 

B.   Board shall
mean the Corporation’s Board of Directors.

 

C.   Common
Stock shall
mean shares of the Corporation’s common stock.

 

D.   Code shall
mean the Internal Revenue Code of 1986, as amended.

 

E.   Corporate
Transaction shall
mean either of the following stockholder-approved transactions:

 

(i) a merger
or consolidation in which securities possessing more than fifty percent (50%) of
the total combined voting power of the Corporation’s outstanding securities are
transferred to a person or persons different from the persons holding those
securities immediately prior to such transaction, or

 

(ii) the sale,
transfer or other disposition of all or substantially all of the Corporation’s
assets in complete liquidation or dissolution of the Corporation.

 

F.   Corporation shall
mean Rubio’s Restaurants, Inc., a Delaware corporation, and any successor
corporation to all or substantially all of the assets or voting stock of Rubio’s
Restaurants, Inc. 

 

G.   Owner shall
mean Participant and all subsequent holders of the Purchased Shares who derive
their chain of ownership through a Permitted Transfer from
Participant.

 

H.   Parent shall
mean any corporation (other than the Corporation) in an unbroken chain of
corporations ending with the Corporation, provided each corporation in the
unbroken chain (other than the Corporation) owns, at the time of the
determination, stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.

 

I.   Participant shall
mean the person to whom the Purchased Shares are issued under the Stock Issuance
Program.

 








A-1













J.   Permitted
Transfer shall
mean (i) a gratuitous transfer of the Purchased Shares, provided
and only if
Participant obtains the Corporation’s prior written consent to such transfer,
(ii) a transfer of title to the Purchased Shares effected pursuant to
Participant’s will or the laws of intestate succession following Participant’s
death or (iii) a transfer to the Corporation in pledge as security for any
purchase-money indebtedness incurred by Participant in connection with the
acquisition of the Purchased Shares.

 

K.   Plan shall
mean the Corporation’s 1999 Stock Incentive Plan.

 

L.   Plan
Administrator shall
mean either the Board or a committee of the Board acting in its administrative
capacity under the Plan. 

 

M.   Purchase
Price shall
have the meaning assigned to such term in Paragraph A.1.

 

N.   Purchased
Shares shall
have the meaning assigned to such term in Paragraph A.1.

 

O.   Recapitalization shall
mean any stock split, stock dividend, recapitalization, combination of shares,
exchange of shares or other change affecting the Corporation’s outstanding
Common Stock as a class without the Corporation’s receipt of
consideration.

 

P.   Repurchase
Right shall
mean the right granted to the Corporation in accordance with Article
C.

 

Q.   Service shall
mean the Participant’s performance of services for the Corporation (or any
Parent or Subsidiary) in the capacity of an employee, subject to the control and
direction of the employer entity as to both the work to be performed and the
manner and method of performance, a non-employee member of the board of
directors or a consultant.

 

R.   Stock
Issuance Program shall
mean the Stock Issuance Program under the Plan.

 

S.   Subsidiary shall
mean any corporation (other than the Corporation) in an unbroken chain of
corporations beginning with the Corporation, provided each corporation (other
than the last corporation) in the unbroken chain owns, at the time of the
determination, stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.

 

T.   Vesting
Schedule shall
mean the vesting schedule specified in Paragraph C.3, pursuant to which the
Purchased Shares are to vest in a series of installments over Participant’s
period of Service. 

 

U.   Unvested
Shares shall
have the meaning assigned to such term in Paragraph C.1.

 









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