RUBIO’S RESTAURANTS,
INC.
ADDENDUM
TO
STOCK OPTION
AGREEMENT
The following provisions are hereby incorporated
into, and are hereby made a part of, that certain Stock Option
Agreement (the “ Option Agreement ”) by
and between Rubio’s Restaurants, Inc. (the “
Company ”) and
______________________________________ (“
Optionee ”) evidencing the stock option granted
on _____________ to Optionee (the “ Option
”) under the terms of the Company’s 1999 Stock
Incentive Plan (the “ Plan ”), and such
provisions shall be effective immediately. All
capitalized terms in this Addendum, to the extent not expressly
defined herein, shall have the meanings assigned to them in the
Plan. Any capitalized terms defined herein and in the
Plan or the Option Agreement, shall have the meanings assigned to
them herein.
INVOLUNTARY TERMINATION
FOLLOWING
CHANGE OF CONTROL
1. To the
extent the Option is, in connection with a Corporate Transaction
(including a Change of Control as defined herein), assumed or
replaced in accordance with Section III.A of Article Two of the
Plan, none of the Option Shares shall vest on an accelerated basis
upon the occurrence of the Corporate Transaction (including a
Change of Control as defined herein), and Optionee shall
accordingly continue, over his or her period of employment
following the Corporate Transaction (including a Change of Control
as defined herein), to vest in the Option Shares in one or more
installments in accordance with the provisions of the Option
Agreement. However, upon an Involuntary Termination of
Optionee’s employment within twelve (12) months following a
Change of Control, all of the Option Shares at the time subject to
the Option shall automatically vest in full on an accelerated basis
so that the Option shall immediately become exercisable for all the
Option Shares as fully-vested shares and may be exercised for any
or all of those Option Shares as vested shares. The
Option shall remain so exercisable until the earlier of (i)
the expiration of the Option pursuant to the terms of the Option
Agreement or (ii) the expiration of a one year period measured from
the date of the Involuntary Termination.
2. For
purposes of this Addendum, “ Cause ”
shall mean Optionee’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 Optionee and the Company (or the surviving entity
following a Change of Control), other than a breach as described in
subsection (ii) above, and failure of Optionee to cure such beach,
if susceptible to cure, within ten (10) days following O
