RUBIO’S RESTAURANTS,
INC.
CHANGE IN CONTROL
AGREEMENT
This CHANGE IN CONTROL AGREEMENT (the “
Agreement ”) is entered into by and between
Rubio’s Restaurants, Inc., a Delaware corporation (the
“ Company ”), and [insert Executive’s
name] , an individual (the “ Executive ”),
dated as of December ___ , 2008.
WHEREAS, the Board of Directors of the Company
(the “ Board ”), has determined that it is in
the best interests of the Company and its stockholders to assure
that the Company will have the continued dedication of the
Executive, notwithstanding the possibility, threat or occurrence of
a Change in Control (as defined in Section 1(a) of this
Agreement).
WHEREAS, the Board believes it is imperative to
diminish the inevitable distraction of the Executive by virtue of
the personal uncertainties and risks created by a pending or
threatened Change in Control and to encourage the Executive’s
full attention and dedication to the Company currently and in the
event of any threatened or pending Change in Control, and to
provide the Executive with certain benefits upon Executive’s
Involuntary Termination within the twelve (12) month period
immediately following a Change in Control.
NOW, THEREFORE, in consideration of the mutual
promises and agreements contained in this Agreement and other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Executive and the Company hereby agree
as follows:
(a) “
Change of Control ” shall mean the occurrence
of any of the following: (i) the sale, lease, conveyance or other
disposition of all or substantially all of the Company’s
assets to any “person” (as such term is used in Section
13(d) of the Exchange Act of 1934, as amended), entity or group of
persons acting in concert; (ii) any person or group of persons
becoming the “beneficial owner” (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 50% or more of the total
voting power represented by the Company’s then outstanding
voting securities; (iii) a merger, consolidation or other
transaction of the Company with or into any other corporation,
entity or person, other than a transaction in which the holders of
at least 50% of the shares of capital stock of the Company
outstanding immediately prior thereto continue to hold (either by
voting securities remaining outstanding or by their being converted
into voting securities of the surviving entity or its controlling
entity) at least 50% of the total voting power represented by the
voting securities of the Company or such surviving entity (or its
controlling entity) outstanding immediately after such transaction;
or (iv) a contest for the election or removal of members of the
Board of Directors of the Company that results in the removal from
the Board of at least 50% of the incumbent members of the
Board.
(b) “
Involuntary Termination ” shall mean (i) the
termination of Executive’s employment by the Company (or the
surviving entity following a Change of Control) for reasons other
than for Cause or (ii) Executive’s resignation for Good
Reason, as those terms are defined below.
(c) “
Good Reason” shall mean Executive’s
resignation within sixty (60) days after the occurrence of any of
the following events without Executive’s consent: (i) a
material reduction in the aggregate level of Executive’s base
salary and incentive compensation opportunity (other than
Company-wide reductions or reductions generally applicable to
positions of comparable management authority within the surviving
entity following a Change of Control); (ii) a material reduction of
Executive’s duties, responsibilities and requirements so that
Executive’s duties are no longer consistent with
Executive’s position immediately prior to a Change of
Control; or (iii) relocation of Executive’s primary place of
employment by the Company (or the surviving entity following a
Change of Control) to a facility or location more than fifty (50)
miles from Executive’s primary place of employment
immediately prior to the Change in Control.
(d) “
Cause ” shall mean Executive’s: (i) acts
of theft, embezzlement, fraud, material dishonesty or
misappropriation of any of the Company’s (or a surviving
entity’s following a Change of Control) property, or
conviction for, or the entry of a plea of guilty or nolo contendere
to, any felony, or to any other crime involving dishonesty, moral
turpitude, fraud or embezzlement; (ii) breach of Company’s
[insert title of Nondisclosure
or Confidentiality Agreement ] , which shall not be
subject to any cure; (iii) breach of any material provision of any
written agreement between the Executive and the Company (or the
surviving entity following a Change of Control), other than a
breach as described in subsection (ii) above, and the failure of
Executive to cure such beach, if susceptible to cure, within ten
(10) days following Executive’s receipt of written notice of
such breach; (iv) failure or refusal to perform, or material
negligence in the performance of, Executive’s duties to the
Company (or the surviving entity following a Change of Control), or
refusal or failure to follow or carry out any reasonable direction
of the board of directors of the Compan
