Exhibit 10.2


 


RED
ROBIN GOURMET BURGERS, INC.


AMENDED
AND RESTATED


2007
PERFORMANCE INCENTIVE PLAN


PERFORMANCE-BASED
RESTRICTED STOCK UNIT GRANT AGREEMENT


 


This Performance-Based
Restricted Stock Unit Grant Agreement (this “Agreement”) between RED
ROBIN GOURMET BURGERS, INC. (the “Corporation”) and [                    ]
(“Participant”) is dated effective
[                        ]
(the “Date of Grant”).


 


RECITALS


 


A.            The Board has adopted, and
the stockholders have approved, the Red Robin Gourmet Burgers, Inc.
Amended and Restated 2007 Performance Incentive Plan (the “Plan”);


 


B.            The Plan provides for the
granting of restricted stock unit awards to eligible participants as determined
by the Administrator; and


 


C.            The Administrator has
determined that Participant is a person eligible to receive a restricted stock
unit award under the Plan and has determined that it would be in the best
interest of the Corporation to grant the restricted stock unit award provided
for herein.


 


AGREEMENT


 


1.             Definitions. 
Capitalized terms not otherwise defined herein shall have the same
meanings ascribed to them in the Plan. 
Whenever the following terms are used in this Agreement, they shall have
the meanings set forth below.


 


(a)           “Peer Group” means the companies
listed on Appendix A; provided that a company (other than the
Corporation) shall be removed from the Peer Group for a Performance Period if
during such period, (i) the common stock of such company ceases to be
publicly traded on an established securities market, (ii) such company
ceases to maintain publicly available statements of operations prepared in
accordance with United States generally accepted accounting principles,
consistently applied, (iii) such company is not the surviving entity in
any merger, consolidation, or other reorganization (or survives only as a
subsidiary of an entity other than a previously wholly owned subsidiary of such
company), (iv) such company sells, leases, or exchanges all or
substantially all of its assets to any other person or entity (other than a
previously wholly owned subsidiary of such company), or (v) such company
is dissolved and liquidated.


 


(b)           “Performance Period” means the
period commencing
[            ] and
ending on
[            ].


 


(c)           “Retirement” means the voluntary termination of employment by
Participant from the Corporation when the Participant’s age plus years of
service (in each case measured in complete, whole years) equals or exceeds 67,
provided that at the date of termination the Participant is at least 58 years
of age and has completed at least 5 years of service with the Corporation.


 

















 


(d)           “Severance Date” means the last day that Participant is
employed by or provides services to the Corporation.


 


(e)           “Total Disability” means a “permanent and total disability” (within
the meaning of Section 22(e)(3) of the Code or as otherwise
determined by the Administrator).


 


(f)            “TSR” means a company’s total
shareholder return, calculated based on the stock price appreciation during a
specified measurement period plus the value of dividends paid on such stock
during the measurement period (which shall be deemed to have been reinvested in
the underlying company’s stock on the ex-dividend date); provided that the
Administrator may make appropriate adjustments to reflect any changes in the
capital stock of any Peer Group company (e.g. stock splits, subdivision or
consolidation of shares) that occurs during the Performance Period.


 


(g)           “TSR Percentile” means the
percentile rank of the Corporation’s TSR during the Performance Period relative
to the TSR of other companies in the Peer Group during the Performance Period
as determined by the Administrator; provided that for purposes of measuring the
TSR Percentile, the beginning and ending TSR values shall be calculated based
on the average of the closing prices of the applicable company’s stock for the
20 trading days prior to and including the beginning or ending date, as
applicable, of the Performance Period.


 


2.             Grant of Restricted Stock Units.


 


(a)           Award.  Pursuant to
the Plan, Participant is hereby awarded (the “Award”) restricted stock
units, subject to the conditions of the Plan and this Agreement (the “Restricted
Stock Units”).  Each Restricted Stock
Unit represents the right to receive one share of the Corporation’s common
stock, $0.001 par value (the “Common Stock”).  Unless and until the Restricted Stock Units
are vested, Participant will have no right to receive shares of Common Stock
under such Restricted Stock Units.


 


(b)           Target Number of Restricted Stock Units. 
The target number of Restricted Stock Units subject to the Award is
[            ]
Restricted Stock Units (the “Target Restricted Stock Units”).  The actual number of Restricted Stock Units
subject to the Award will be determined based on the performance goals set forth
in Section 3 below.


 


(c)           Plan Incorporated. 
Participant acknowledges receipt of a copy of the Plan, and agrees that,
except as contemplated by Section 13 below, this award of Restricted Stock
Units shall be subject to all of the terms and conditions set forth in the
Plan, including future amendments thereto, if any, pursuant to the terms
thereof, which Plan is incorporated herein by reference as a part of this
Agreement.


 


3.             Vesting Conditions and Award Opportunity.


 


(a)           Determination of Earned Restricted Stock
Units.  Subject to Section 4 below and Section 7.1
of the Plan, upon expiration of the Performance Period, Participant shall vest
in a number of Restricted Stock Units equal to the product of the number of
Target Restricted Stock Units multiplied by the percentage corresponding to the
Corporation’s TSR Percentile during the


 


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Performance Period in accordance with the following
table (such units, the “Earned Restricted Stock Units”):


 


	
  Corporation’s
  TSR Percentile

  	
   

  	
  % of Target Restricted

  Stock Units

  	
   

  
	
  25th TSR
  Percentile and Below:

  	
   

  	
  0%

  	
   

  
	
  37.5th TSR
  Percentile:

  	
   

  	
  50%

  	
   

  
	
  50th TSR
  Percentile:

  	
   

  	
  100%

  	
   

  
	
  60th TSR
  Percentile:

  	
   

  	
  140%

  	
   

  
	
  70th TSR
  Percentile:

  	
   

  	
  180%

  	
   

  
	
  75th TSR
  Percentile:

  	
   

  	
  200%

  	
   

  
	
  90th TSR and Above:

  	
   

  	
  225%

  	
   

  



 


If the
Corporation’s TSR Percentile during the Performance Period is between two of
the TSR Percentiles in the above table, the corresponding percentage of Target
Restricted Stock Units shall be calculated using linear interpolation (e.g.,
65th TSR Percentile would result in a percentage of Target Restricted Stock
Units of 160%).  Except as set forth in Section 4
below, any Target Restricted Stock Units that do not become Earned Restricted
Stock Units shall be forfeited and cancelled upon expiration of the Performance
Period.  The Administrator will provide
Participant with written notice of the number of Earned Restricted Stock Units
promptly following the end of the Performance Period.


 


(b)           Notwithstanding the foregoing and subject
to Section 4 below, Participant shall vest in the Earned Restricted Stock
Units only if Participant remains employed by or provides services to the
Corporation from the Date of Grant through the last day of the Performance
Period.  If Participant ceases to be
employed by or ceases to provide services to the Corporation at any time prior
to the last day of the Performance Period, then, except as provided in Section 4
below, all Target Restricted Stock Units shall be canceled immediately on the
Severance Date and Participant shall cease to have any right or entitlement to
receive any shares of Common Stock under such canceled Restricted Stock Units.


 


4.             Accelerated Vesting of Restricted Stock
Units and Restricted Shares.


 


(a)           Accelerated Vesting upon a Change in
Control.  Notwithstanding Section 3(b) above,
if the Corporation undergoes a Change in Control Event prior to the last day of
the Performance Period, then at the date of the Change in Control Event,
Participant shall vest in a number of Earned Restricted Stock Units calculated
as follows:


 


(i)            If the Change in Control Event occurs on
or prior to the six-month anniversary of the Date of Grant, the number of
Earned Restricted Stock Units shall equal the number of Target Restricted Stock
Units and shall not be adjusted based on the Corporation’s TSR Percentile.


 


(ii)           If the Change in Control Event occurs
after the six-month anniversary of the Date of Grant, the number of Earned
Restricted Stock Units will be calculated in the manner set forth in Section 3(a) above
except that (i) the Corporation’s TSR shall be calculated based on the
price per share of Common Stock paid to the Corporation’s holders of Common
Stock in the


 


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Change in Control Event and (ii) for purposes of
calculating the TSR Percentile, the Performance Period shall be deemed to have
ended on the effective date of the Change in Control Event.


 


(b)           Accelerated Vesting upon Participant’s
Death or Total Disability.  Notwithstanding Section 3(b) above,
if Participant’s employment with or provision of services to the Corporation is
terminated prior to the last day of the Performance Period as a result of
Participant’s death or Total Disability, then at the Severance Date,
Participant shall vest in a number of Earned Restricted Stock Units calculated
in the manner set forth in Section 3(a) above except that (i) the
number of Target Restricted Stock Units will be pro-rated based on the number
of days that Participant was employed or provided services to the Corporation
between the Date of Grant and the Severance Date as a percentage of the number
of days in the Performance Period, and (ii) for purposes of calculating
the TSR Percentile, the Performance Period shall be deemed to have ended on the
Severance Date.


 


(c)           Accelerated Vesting upon Participant’s
Retirement.  Notwithstanding Section 3(b) above,
if Participant’s employment with or provision of services to the Corporation is
terminated prior to the last day of the Performance Period as a result of
Participant’s Retirement, then the Restricted Stock Units shall not be
forfeited and Participant shall continue to hold the Award through the end of
the Performance Period.  At the
expiration of the Performance Period, Participant shall vest in a number of
Earned Restricted Stock Units calculated in the manner set forth in Section 3(a) above
except that the number of Earned Restricted Stock Units will be pro-rated based
on the number of days that Participant was employed or provided services to the
Corporation between the Date of Grant and the Severance Date as a percentage of
the number of days in the Performance Period.


 


5.             Limits on Transferability. 
Restricted Stock Units shall not be transferable except by will or the
laws of descent and distribution or pursuant to a beneficiary designation, or
as otherwise permitted by Section 5.7 of the Plan.  No right or benefit hereunder shall in any
manner be liable for or subject to any debts, contracts, liabilities, or torts
of Participant.  Participant agrees that
the Restricted Stock Units will not be sold or otherwise disposed of in any
manner that would constitute a violation of any applicable federal or state
securities laws.  Any purported
assignment, alienation, pledge, attachment, sale, transfer or other encumbrance
of shares of unvested Restricted Stock Units that does not satisfy the
requirements of this Agreement and the Plan shall, prior to the Vesting Date
(as defined below), be void and unenforceable against the Corporation.


 


6.             Issuance and Certificates.


 


(a)           Unless the Restricted Stock Units are
forfeited prior to the expiration of the Performance Period as provided in Section 3
above, the shares of Common Stock issuable upon vesting of the Restricted Stock
Units shall be deemed issued as of the last day of the Performance Period, or
if the Award vests earlier under Section 4 above, as of the date of such
vesting (the last day of the Performance Period or the earlier vesting date, as
applicable, the “Vesting Date”). 
As soon as administratively practicable following the Vesting Date, but
no later than the 15th day of the third month following the end of
the taxable year in which the Vesting Date falls, the Corporation shall cause (i) a
stock certificate or certificates (which may be in electronic form) to be
delivered to or on behalf of Participant for such number of shares of


 


4

















 


Common Stock equal to the number of Earned Restricted
Stock Units, subject to the Corporation’s collection of applicable withholding
taxes in accordance with Section 8 below.


 


(b)           Notwithstanding any other provisions of
this Agreement, the issuance or delivery of any shares of Common Stock may be
postponed for such period as may be required to comply with any requirements
under any law or regulation applicable to the issuance or delivery of such
shares, but in no event shall such shares of Common Stock be delivered any
later than the 15th day of the third month following the end of
the taxable year in which the Vesting Date falls.  The Corporation shall not be obligated to
issue or deliver any shares of Common Stock if the issuance or delivery thereof
shall constitute a violation of any provision of any law or of any regulation
of any governmental authority or any national securities exchange.


 


7.             Stockholder Rights. 
The Participant shall not have any stockholder rights, including voting
or dividend rights, with respect to the shares of Common Stock subject to the
Restricted Stock Units until such shares are issued on the Vesting Date.


 


8.             Withholding.  In order to
comply with all applicable federal or state income tax laws or regulations, the
Corporation may take such action as it deems appropriate to ensure that all
applicable federal or state payroll, withholding, income or other taxes, which
are the sole and absolute responsibility of Participant, are withheld or
collected from Participant.  In
accordance with the terms of the Plan, and such rules as may be adopted by
the Administrator under the Plan, to satisfy Participant’s federal and state tax
withholding obligations arising from the vesting of the Restricted Stock Units,
the Corporation will withhold shares of Common Stock otherwise to be delivered
to Participant having a Fair Market Value equal to the amount of such taxes.  The Corporation will not deliver any fractional shares
of Common Stock.  Any additional withholding amounts owed by Participant
due to the inability to deliver fractional shares will be deducted from such
Participant’s next paycheck.


 


9.             Tax Consideration.  The Corporation
has advised Participant to seek Participant’s own tax and financial advice with
regard to the federal and state tax considerations resulting from Participant’s
receipt of Restricted Stock Units pursuant to this Agreement.  Participant understands that the Corporation
will report to appropriate taxing authorities the payment to Participant of
compensation income upon the vesting of the Restricted Stock Units.  Participant understands that he or she is
solely responsible for the payment of all federal and state taxes resulting
from this grant of Restricted Stock Units. 
With respect to tax withholding amounts, the Corporation has all of the
rights specified in Section 8 of this Agreement and has no obligations to
Participant except as expressly stated in Section 8 of this Agreement.


 


10.           Binding Effect.  This
Agreement shall bind Participant and the Corporation and their beneficiaries,
survivors, executors, administrators and transferees.


 


11.           No Guarantee of Continued Position. 
This Agreement is not a contract for employment and nothing herein shall
supersede or amend the terms of any employment agreement between the
Corporation and Participant or imply that Participant has a right to continued
employment with the Corporation.


 


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12.           Applicable Law.  This
Agreement shall be governed by and construed and enforced in accordance with
the laws of the State of Delaware without regard to conflict of law principles
thereunder.


 


13.           Conflicts and Interpretation. 
In the event of any conflict between this Agreement and the Plan, this
Agreement shall control.  In the event of
any ambiguity in this Agreement, or any matters as to which this Agreement is
silent, the Plan shall govern including, without limitation, the provisions
thereof pursuant to which the Administrator has the power, among others, to (i) interpret
the Plan, (ii) prescribe, amend and rescind rules and regulations
relating to the Plan and (iii) make all other determinations deemed
necessary or advisable for the administration of the Plan.


 


14.           Amendment.  The
Corporation may modify, amend or waive the terms of the Restricted Stock Unit
award, prospectively or retroactively, but no such modification, amendment or
waiver shall impair the rights of Participant without his or her consent,
except as required by applicable law, NASDAQ or stock exchange rules, tax rules or
accounting rules.  Prior to the
effectiveness of any modification, amendment or waiver required by tax or
accounting rules, the Corporation will provide notice to Participant and the
opportunity for Participant to consult with the Corporation regarding such
modification, amendment or waiver.  The
waiver by either party of compliance with any provision of this Agreement shall
not operate or be construed as a waiver of any other provision of this
Agreement, or of any subsequent breach by such party of a provision of this
Agreement.


 


15.           Compliance with Code section 409A. 
The Restricted Stock Units granted under this Agreement are intended to
fit within the “short-term deferral” exemption from section 409A of the
Internal Revenue Code.  In administering
this Agreement, the Corporation shall interpret this Agreement in a manner
consistent with such exemption.


 


[Signature Page Follows.]


 


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IN WITNESS WHEREOF, the parties have executed this
Performance-Based Restricted Stock Unit Grant Agreement as of the date first
written above.


 


	
   

  	
  RED ROBIN GOURMET
  BURGERS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  PARTICIPANT:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [NAME]