Exhibit 10.3
RESTRICTED STOCK AWARD AGREEMENT
Issued Pursuant to the Syms Corp
2005 Stock Option Plan
THIS RESTRICTED STOCK AWARD AGREEMENT ("Agreement"), effective as of the
Grant Date (the "Effective Date") set forth in the attached Restricted Stock
Award Certificate (the "Certificate"), represents the grant of such number of
Shares of Restricted Stock set forth in the Certificate by Syms Corp (the
"Company"), to the person named in the Certificate (the "Participant"), subject
to the terms and conditions set forth below and pursuant to the provisions of
the Syms Corp 2005 Stock Option Plan adopted by the Company's Board of Directors
on April 17, 2005 and approved by the Company's stockholders on July 14, 2005
(the "Plan").
If there is any inconsistency between the terms of this Agreement or the
Certificate (on the one hand) and the terms of the Plan (on the other hand), the
Plan's terms shall completely supersede and replace the conflicting terms of
this Agreement or the Certificate (as the case may be). All capitalized terms
shall have the meanings ascribed to them in the Plan, unless specifically set
forth otherwise herein. The parties hereto agree as follows:
1. Grant of Restricted Stock. The Company hereby grants to the Participant
the number of Shares of Restricted Stock set forth in the Certificate, subject
to the terms and conditions of the Plan and this Agreement.
2. Vesting Period. (a) In General. Except as set forth in Section 5 below,
if the Participant's employment or services as a Director terminates before the
last vesting date set forth in the Certificate, all Shares of Restricted Stock
granted hereby that are unvested as of the date of termination of employment or
Directorship shall be forfeited. Subject to the terms of this Agreement and the
Plan, Shares of Restricted Stock granted hereby shall vest as indicated in the
Certificate. For the specified vesting to occur on any vesting date set forth
therein, the Participant must be continuously employed by or serving as a
Director of the Company or any of its Affiliates from the Effective Date through
such vesting date.
(b) No Partial Vesting. Except as set forth in Section 15 hereof, in no
event shall a Participant have any rights to the Shares of Restricted Stock
granted hereunder: (i) prior to the date such Shares vest pursuant to the
Vesting Schedule set forth in the Certificate; or (ii) with respect to any
partial Share.
3. Voting Rights. All Shares of Restricted Stock issued hereunder, whether
vested or unvested, shall have full voting rights accorded to outstanding
Shares.
4. Dividend Rights. (a) Cash Dividends. The Participant shall be entitled
to receive any cash dividends paid with respect to Shares of Restricted Stock
granted hereunder.
(b) Non-Cash Dividends. Any stock dividends or other distributions or
dividends of property other than cash with respect to Shares of Restricted Stock
granted hereunder shall be subject to the same forfeiture restrictions and
restrictions on transferability as apply to the Restricted Stock with respect to
which such property was paid.
5. Nontransferability. (a) In General. Except as may be provided in Section
5(b) below, the Shares of Restricted Stock granted hereby may not be sold,
transferred, pledged, assigned, or otherwise alienated or hypothecated, other
than by will or by the laws of descent and distribution, until such Shares have
vested in accordance with Section 2 hereof and except as provided in the Plan.
No assignment or transfer of any Shares of Restricted Stock in violation of this
Section 5, whether voluntary or involuntary, by operation of law or otherwise,
except by will or the laws of descent and distribution or as otherwise required
by applicable law, shall vest in the assignee or transferee any interest
whatsoever.
(b) Transfers With The Consent of the Committee. With the prior written
consent of the Committee, a beneficial interest in the unvested Shares of
Restricted Stock awarded hereby may be transferred by the Participant to any
person or entity specified in such prior written consent (each, a "Permitted
Assignee"); provided, however, that if such consent is granted, the Permitted
Assignee shall be subject to the terms of this Agreement and the Plan unless an
exception is granted in writing by the Committee.
6. Termination. (a) Death. In the event the Participant dies while employed
by or serving as a Director of the Company or any of its Affiliates, all
restrictions set forth herein shall lapse and any unvested Shares of Restricted
Stock held by the Participant (or his or her Permitted Assignee) shall vest in
the estate of the Participant or in any person who acquired such Shares of
Restricted Stock by bequest or inheritance, or in the Permitted Assignee.
(b) Disability. In the event the Participant ceases to perform services of
any kind (whether as an employee or Director) for the Company or any of its
Affiliates due to permanent and total disability, all restrictions set forth
herein shall lapse and all unvested Shares of Restricted Stock shall immediately
vest in the Participant, or his guardian or legal representative, or a Permitted
Assignee, as of the first date of permanent and total disability (as determined
in the sole discretion of the Committee). For purposes of this Agreement, the
term "permanent and total disability" means the Participant is unable to engage
in any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than
12 months, and the permanence and degree of which shall be supported by medical
evidence satisfactory to the Committee. Notwithstanding anything to the contrary
set forth herein, the Committee shall determine, in its sole and absolute
discretion, (1) whether the Participant has ceased to perform services of any
kind due to a permanent and total disability and, if so, (2) the first date of
such permanent and total disability.
7. Issuance of Restricted Stock. As soon as practicable after the date of
this Agreement, the Company shall cause to be transferred on the books of the
Company, Shares registered in the name of the Company, as nominee for the
Participant, evidencing the Restricted Stock covered by this Agreement, but
subject to forfeiture to the Company retroactive to the date of grant, if the
Certificate is not duly executed by the Participant and timely returned to the
Company. Until the lapse or release of all restrictions applicable to an Award
of Restricted Stock, the share certificates representing such Restricted Stock
shall be held in custody by the Company or its designee.
8. Administration. This Agreement and the rights of the Participant
hereunder and under the Certificate are subject to all the terms and conditions
of the Plan, as the same may be amended from time to time, as well as to such
rules and regulations as the Committee may adopt for administration of the Plan.
It is expressly understood that the Committee is authorized to administer,
construe, and make all determinations necessary or appropriate to the
administration of the Plan, this Agreement and the Certificate, all of which
shall be binding upon the Participant. Any inconsistency between the Agreement
or the Certificate (on the one hand) and the Plan (on the other hand) shall be
resolved in favor of the Plan.
9. Adjustments. The number of Shares of Restricted Stock granted hereby
shall be subject to adjustment in accordance with Section 4.4 of the Plan.
10. Exclusion from Pension Computations. By acceptance of the Shares of
Restricted Stock granted hereunder, the Participant hereby agrees that any
income or gain realized upon the receipt or disposition of the Shares is special
incentive compensation and shall not be taken into account, to the extent
permissible under applicable law, as "wages", "salary" or "compensation" in
determining the amount of any payment under any pension, retirement, incentive,
profit sharing, bonus or deferred compensation plan of the Company or any of its
Affiliates.
11. Amendment. Except to the extent necessary to avoid the imposition of
additional tax and/or interest under Section 409A of the Code with respect to
Awards that are treated as nonqualified deferred compensation, no termination,
amendment, suspension, or modification of the Plan or this Agreement shall
adversely affect in any material way the Restricted Stock granted under this
Agreement without the written consent of the Participant holding such Restricted
Stock. Notwithstanding the foregoing, the Committee may make adjustments to the
Restricted Stock granted pursuant to this Agreement to take account of certain
nonrecurring events as contemplated by Sections 4.4 and 17.2 of the Plan.
12. Notices. Any notice which either party hereto may be required or
permitted to give to the other shall be in writing, and may be delivered
personally or by mail, postage prepaid, or overnight courier, addressed as
follows: if to the Company, at its office at ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, or at such other address as the Company by
notice to the Participant may designate in writing from time to time; and if to
the Participant, at the address shown below his or her signature on the
Certificate, or at such other address as the Participant by notice to the
Company may designate in writing from time to time. Notices shall be effective
upon receipt.
13. Withholding Taxes. The Company shall have the right to withhold from
wages or other amounts otherwise payable to the Participant (or a Permitted
Assignee thereof), or otherwise require the Participant or Permitted Assignee to
pay, any federal, state, local or foreign income taxes, withholding taxes, or
employment taxes required to be withheld by law or regulations ("Withholding
Taxes") arising as a result of the grant of any Award, the vesting of Shares of
Restricted Stock, the transfer of any Shares of Restricted Stock, the making of
an election under Section 83(b) (or any similar provision) of the Internal
Revenue Code of 1986 (the "Code"), or any other taxable event occurring pursuant
to the Plan, this Agreement or the Certificate. If, notwithstanding the
foregoing, the Participant (or Permitted Assignee) shall fail to actually or
constructively make such tax payments as are required, the Company (or its
Affiliates) shall, to the extent permitted by law, have the right to deduct any
such Withholding Taxes from any payment of any kind otherwise due to such
Participant or to take such other action as may be necessary to satisfy such
Withholding Taxes. In satisfaction of the requirement to pay Withholding Taxes
(but only if the Section 83(b) Election defined below has not been made with
respect to the Restricted Stock awarded hereunder), the Company, in its sole
discretion, may elect to satisfy the obligation for Withholding Taxes by
retaining a sufficient number of Shares of Restricted Stock that it would
otherwise deliver on a particular vesting date equal to the amount of any
Withholding Taxes due on such vesting date. Notwithstanding the foregoing
discretion, the Company shall satisfy the obligation for Withholding Taxes by
retaining a sufficient number of Shares of Restricted Stock that it would
otherwise deliver on a particular vesting date equal to the amount of any
Withholding Taxes due on such vesting date, unless the Participant has either
(a) made the Section 83(b) Election defined below or (b) provided the Company
with written notice at least 30 days (or such lesser period as may be permitted
by the Company in its sole discretion) in advance of such vesting date that the
Participant will pay the Withholding Taxes in cash. For purposes of the
preceding two sentences, where the Company is to retain Shares to satisfy the
obligation for Withholding Taxes, the net amount of Shares to be delivered to
the Participant on a vesting date shall equal the total number of Shares
otherwise deliverable to the Participant on such vesting date (pursuant to
Section 7 hereof and the Certificate), less such number of Shares equal to the
Fair Market Value of such Withholding Taxes (as determined in the Committee's
sole discretion).
14. Registration; Legend. The Company may postpone the issuance and
delivery of the Shares of Restricted Stock granted hereby until (a) the
admission of such Shares to listing on any stock exchange or exchanges on which
Shares of the Company of the same class are then listed and (b) the completion
of such registration or other qualification of such Shares under any state or
federal law, rule or regulation as the Company shall determine to be necessary
or advisable. The Participant shall make such representations and furnish such
information as may, in the opinion of counsel for the Company, be appropriate to
permit the Company, in light of the then existence or non-existence with respect
to such Shares of an effective Registration Statement under the Securities Act
of 1933, as amended, to issue the Shares in compliance with the provisions of
that or any comparable act.
The Company may cause the following or a similar legend to be set forth on
each certificate representing Shares of Restricted Stock granted hereby unless
counsel for the Company is of the opinion as to any such certificate that such
legend is unnecessary:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE SUBJECT TO FORFEITURE
AND OTHER LIMITATIONS AND RESTRICTIONS AS SET FORTH IN A RESTRICTED STOCK AWARD
AGREEMENT ON FILE WITH THE COMPANY. IN ADDITION, THE SECURITIES REPRESENTED BY
THIS CERTIFICATE MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"), OR PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE ACT, THE AVAILABILITY OF WHICH IS ESTABLISHED BY AN OPINION FROM
COUNSEL TO THE COMPANY.
15. Change in Control. (a) In the event of the occurrence of a change in
control of the Company (a "Change in Control"), any unvested Shares of
Restricted Stock granted hereunder shall immediately vest. For purposes of this
Agreement, a "Change in Control" shall be deemed to occur if: (i) there shall
have occurred a change in control of the Company of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Securities Exchange Act of 1934, as amended, as in
effect on the date hereof, whether or not the Company is then subject to such
reporting requirement, provided, however, that the foregoing event shall not be
deemed to be a Change in Control if immediately prior to such transaction the
Participant or an entity of which the Participant is an executive officer,
director or more than five percent equity holder is, directly or indirectly, one
of the new controlling parties; or (ii) the Company has merged or consolidated
with, or sold substantially all of its assets to, another company, provided,
however, that the foregoing event shall not be deemed to be a Change in Control
if immediately prior to such transaction the Participant is an executive
officer, director or more than five percent equity holder of the other party to
the transaction or of any entity directly or indirectly controlling that party
to the transaction.
(b) Notwithstanding the foregoing, if in the event of a Change in Control,
the successor company assumes or substitutes for the Shares of Restricted Stock
granted hereunder, then the vesting of such Restricted Stock shall not be
accelerated as described in Section 15(a) hereof. For the purposes of this
Section 15(b), the Shares of Restricted Stock granted hereunder shall be
considered assumed or substituted for if following the Change in Control, such
Shares of Restricted Stock or any award substituted therefor ("Substitute
Award") confers the right to purchase or receive, immediately prior to the
Change in Control, the consideration (whether stock, cash or other securities or
property) received in the transaction constituting the Change in Control by
holders of Shares for each Share held on the effective date of such transaction
(and if holders were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the outstanding shares);
provided, however, that if such consideration received in the transaction
constituting the Change in Control is not solely common stock of the successor
company, the Committee may, with the consent of the successor company, provide
that the consideration to be received upon the vesting of the Shares of
Restricted Stock granted hereunder or the Substitute Award, for each Share
subject thereto, will be solely common stock of the successor company
substantially equal in fair market value to the per share consideration received
by holders of Shares in the transaction constituting the Change in Control. The
determination of such substantial equality of value of consideration shall be
made by the Committee in its sole discretion and its determination shall be
conclusive and binding. Notwithstanding the foregoing, in the event of a
termination of the Participant's employment or Directorship in such successor
company within twenty-four (24) months following such Change in Control, the
Shares of Restricted Stock granted hereunder or the Substitute Award held by
such Participant at the time of the Change in Control shall vest as of the day
preceding the date of termination unless the termination was made by the
successor company for cause. For purposes of this Agreement, "cause" shall mean
either (i) material failure by the Participant to perform his or her duties
(other than as a result of incapacity due to physical or mental illness) during
his or her employment or Directorship with the Company after written notice of
such breach or failure and the Participant failed to cure such breach or failure
to the Company's reasonable satisfaction within five days after receiving such
written notice; or (ii) any act of fraud, misappropriation, misuse, embezzlement
or any other material act of dishonesty in respect of the Company or its funds,
properties, assets or other employees.
16. Section 83(b) Election. If the Participant makes the election
contemplated by Section 83(b) of the Code (a "Section 83(b) Election") (or any
similar provision of federal, state or local law) with respect to the Restricted
Stock awarded hereunder, the Participant shall provide the Company with a copy
of such election within 30 days after the date of this Agreement (or such
earlier date required by law) and otherwise comply with the provisions of this
Section 16. The Participant hereby agrees, as a condition precedent to any
issuance of Restricted Stock under this Agreement, that on or prior to the date
of filing of any Section 83(b) Election with respect to such Restricted Stock,
Participant shall satisfy the Company's Withholding Tax obligations with respect
to such Section 83(b) Election by tendering payment to the Company, in readily
available funds, of an amount equal to such Withholding Tax obligation (or enter
into such other arrangement as shall be acceptable to the Company to satisfy
such Withholding Tax obligation).
17. No Tax Advice. Participant hereby acknowledges that the Company has not
provided any specific tax advice to Participant in connection with his or her
participation in the Plan. Participant understands and acknowledges that the
Section 83(b) Election is valid only if made within 30 days after the date of
this Agreement. Participant will consult with his or her own tax advisors with
respect to any tax consequences relating to an award of Restricted Stock and
participation in the Plan.
18. Miscellaneous. (a) Neither this Agreement nor the Certificate shall
confer upon the Participant any right to continuation of employment by or
Directorship with the Company, nor shall this Agreement or the Certificate
interfere in any way with the Company's right to terminate the Participant's
employment or Directorship at any time.
(b) Except as expressly set forth herein, the Participant shall have no
rights as a stockholder of the Company with respect to the Shares of Restricted
Stock subject to this Agreement until such time as such Shares of Restricted
Stock vest in accordance with Section 2 hereof.
(c) This Agreement and the Certificate shall be subject to all applicable
laws, rules, and regulations, and to such approvals by any governmental agencies
or national securities exchanges as may be required.
(d) To the extent not preempted by federal law, this Agreement and the
Certificate shall be governed by, and construed in accordance with the laws of
the State of New Jersey, without regard to the principles of conflicts of law
which might otherwise apply.
(e) All obligations of the Company under the Plan, this Agreement and the
Certificate, with respect to the Shares of Restricted Stock granted hereunder,
shall be binding on any successor to the Company, whether the existence of such
successor is the result of a direct or indirect purchase, merger, consolidation,
or otherwise, of all or substantially all of the business and/or assets of the
Company.
(f) The provisions of this Agreement and the Certificate are severable and
if any one or more provisions are determined to be illegal or otherwise
unenforceable, in whole or in part, the remaining provisions shall nevertheless
be binding and enforceable.
(g) By accepting this Award or other benefit under the Plan, the
Participant and each person claiming under or through the Participant shall be
conclusively deemed to have indicated their acceptance and ratification of, and
consent to, any action taken under the Plan by the Company, the Board or the
Committee.
(h) The Participant, every person claiming under or through the
Participant, and the Company hereby waives to the fullest extent permitted by
applicable law any right to a trial by jury with respect to any litigation
directly or indirectly arising out of, under, or in connection with the Plan,
this Agreement or the Certificate.
19. Exculpation. The Shares of Restricted Stock granted hereunder and all
documents, agreements, understandings and arrangements relating hereto have been
issued on behalf of the Company by officers acting on its behalf and not by any
person individually. None of the officers, Directors or stockholders of the
Company nor the Directors, officers or stockholders of any Affiliate of the
Company shall have any personal liability hereunder or thereunder. Each party
hereto shall look solely to the assets of the Company for satisfaction of any
liability of the Company in respect of the Shares of Restricted Stock granted
hereunder and all documents, agreements, understanding and arrangements relating
hereto and will not seek recourse or commence any action against any of the
Directors, officers or stockholders of the Company or any of the Directors,
officers or stockholders of any Affiliate, or any of their personal assets, for
the performance or payment of any obligation hereunder or thereunder. The
foregoing shall also apply to any future documents, agreements, understandings,
arrangements and transactions between the parties hereto with respect to the
Shares of Restricted Stock granted hereunder.
20. Captions. The captions in this Agreement are for convenience of
reference only, and are not intended to narrow, limit or affect the substance or
interpretation of the provisions contained herein.
Syms Corp
Restricted Stock Award Certificate
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Granted To: [Name]
[Address]
[Address]
Social Security # xxx-xx-xxxx
You have been granted shares of Restricted Stock of Syms Corp, as described
below.
Grant Date: ________ Number of Shares Granted: ___________
Vesting Schedule:
Vesting Date Percentage of Grant that Vests
___/___/___ [__]%
___/___/___ [__]%
___/___/___ [__]%
___/___/___ [__]%
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By your signature below, you agree that these shares of Restricted Stock are
granted under and governed by the terms and conditions of the Company's 2005
Stock Option Plan and the Restricted Stock Award Agreement, all of which are
attached and made a part of this document.
Date: _____________________ Signature: ____________________________
Note: If there are any discrepancies in the name or address shown above, please
make the appropriate correction on this form.
PLEASE RETURN TO:
Syms Corp
▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇