Exhibit 10.1
FORM OF NONQUALIFIED OPTION AGREEMENT
OPTION AWARD AGREEMENT
Issued Pursuant to the
2005 Stock Option Plan
of Syms Corp
THIS OPTION AWARD AGREEMENT ("Agreement"), effective as of the date, (the
"Effective Date") set forth in the attached Certificate (the "Certificate"),
represents the grant of a nonqualified option ("Option") 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"). The Option granted hereby is intended to be an "NQSO" as such term
is defined in the Plan and is not intended to be an "Incentive Option" as such
term is defined in 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. General Option Grant Information. The individual named above has been
selected to be a Participant in the Plan and receive a nonqualified option
grant, as specified in the Certificate.
2. Grant of Option. The Company hereby grants to the Participant an Option
to purchase the number of Shares set forth in the Certificate, at the stated
Option Price per share, which is one hundred percent (100%) of the Fair Market
Value of a Share on the Date of Grant, as determined in the manner and subject
to the terms and conditions of the Plan and this Agreement.
3. Option Term. The term of this Option begins as of the Effective Date and
continues through the Date of Expiration as specified in the Certificate, unless
sooner terminated in accordance with the terms of this Agreement.
4. Vesting Period. (a) In General. Except as set forth in Section 7 below,
if the Participant's employment or service as a Director terminates before the
last vesting date set forth in the Certificate, the portion of the Option
granted hereby that is unvested as of the date of termination of employment or
Directorship shall be forfeited. Subject to the terms of this Agreement and the
Plan, this Option shall vest and be exercisable 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. (b) Except as set forth in Section 17 hereof, in no
event shall the Participant have any rights to exercise any portion of the
Option granted hereunder: (i) prior to the date such portion vests pursuant to
the Vesting Schedule set forth in the Certificate; or (ii) with respect to any
partial Share.
5. Exercise. The Participant, or the Participant's representative upon the
Participant's death or disability, may exercise this Option at any time prior to
the termination of the Option, subject to and as provided in Sections 3 and 8.
6. How to Exercise. Once vested, the Options hereby granted shall be
exercised by written notice to the Committee or such other administrator
appointed by the Committee, specifying the number of Shares subject to this
Option Participant desires to exercise. The Option Price of the Options shall be
payable to the Company in full either: (a) in cash or its equivalent; (b) by
tendering (either by actual delivery or attestation) previously acquired Shares
having an aggregate Fair Market Value at the time of exercise equal to the
Option Price (provided that except as otherwise determined by the Committee, the
Shares that are tendered must have been held by the Participant for at least six
months prior to their tender to satisfy the Option Price or have been purchased
on the open market); (c) by a combination of (a) and (b); or (d) any other
method approved or accepted by the Committee in its sole discretion, including,
without limitation, if the Committee so determines, a cashless (broker-assisted)
exercise. In no event may the Option be exercised for a fraction of a share.
Unless otherwise determined by the Committee, all cash payments under all
of the methods indicated above shall be paid in United States dollars.
7. Nontransferability. (a) In General. Except as may be provided in Section
7(b) below, this Option may not be sold, transferred, pledged, assigned, or
otherwise alienated or hypothecated, other than by will or by the laws of
descent and distribution, except as provided in the Plan. No assignment or
transfer of the Option in violation of this Section 7, 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, the Option granted 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.
8. Termination of Option. (a) Termination for Cause. In the event of the
termination of the Participant's employment or service as a Director for cause,
this Option and all rights granted hereunder shall be forfeited and deemed
cancelled and no longer exercisable on the date of such termination, unless the
Committee determines otherwise. For purposes of this Agreement, the term "cause"
shall be defined as actions by the Participant which constitute malfeasance.
Malfeasance includes, but is not limited to, the Participant engaging in fraud,
dishonest conduct or other criminal conduct. A determination of cause shall be
made in the sole discretion of the Committee.
(b) Termination Without Cause. Unless otherwise determined by the
Committee, in the event of the termination of the Participant's employment or
service as a Director other than for cause or other than as a result of the
Participant's death or disability, this Option and all rights granted hereunder
shall be forfeited and deemed cancelled and no longer exercisable on the 90th
day after the date of such termination, provided, however, that (i) in no
instance may the term of this Option, as so extended, exceed the Expiration
Date, and (ii) only Option(s) not previously expired or exercised, to the extent
vested and exercisable on the date of termination, shall be exercisable (i.e. no
vesting shall occur during the aforementioned 90-day post-termination period).
(c) Death. In the event the Participant dies while employed by or serving
as a Director of the Company or any of its Subsidiaries or Affiliates, the
Option to the extent not previously expired or exercised shall, to the extent
vested and exercisable on the date of death, be exercisable by the estate of
such Participant or by any person who acquired such Option by bequest or
inheritance, or by the Permitted Assignee, at any time within one year after the
death of the Participant, unless earlier terminated pursuant to its terms,
provided, however, that in no instance may the term of the Option, as so
extended, exceed the date of expiration set forth in Section 1(d) above.
(d) 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
Subsidiaries or Affiliates due to permanent and total disability, the
Participant, or his guardian or legal representative, or a Permitted Assignee,
shall have the unqualified right to exercise the vested portion of the Option,
to the extent not previously exercised or expired, as of the first date of
permanent and total disability (as determined in the sole discretion of the
Committee), at any time within one year after the first date of permanent and
total disability, unless earlier terminated pursuant to its terms, provided,
however, that in no instance may the term of the Option, as so extended, exceed
the date of expiration set forth in Section 1(d), above. 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.
9. 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.
10. Reservation of Shares. The Company hereby agrees that at all times
there shall be reserved for issuance and/or delivery upon exercise of the Option
such number of Shares as shall be required for issuance or delivery upon
exercise hereof.
11. Adjustments. The number of Shares subject to this Option, and the
exercise price, shall be subject to adjustment in accordance with Section 4.4 of
the Plan.
12. Exclusion from Pension Computations. By acceptance of the grant of this
Option, the Participant hereby agrees that any income or gain realized upon the
receipt or exercise hereof, or upon the disposition of the Shares received upon
its exercise, 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 Subsidiaries or Affiliates.
13. 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 Options granted under this Agreement
without the written consent of the Participant holding such Options.
Notwithstanding the foregoing, the Committee may make adjustments to the Options
granted pursuant to this Agreement to take account of certain nonrecurring
events as contemplated by Sections 4.4 and 17.2 of the Plan.
14. 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.
15. 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 such Participant or Permitted Assignee
to pay, any Withholding Taxes arising as a result of the grant of any Award,
exercise of an Option, or any other taxable event occurring pursuant to the
Plan, this Agreement or the Certificate. If, notwithstanding the foregoing, the
Participant (or a Permitted Assignee thereof) shall fail to actually or
constructively make such tax payments as are required, the Company (or its
Affiliates or Subsidiaries) 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, the Participant (or Permitted Assignee) may make a
written election, which may be accepted or rejected in the discretion of the
Committee, (i) to have withheld a portion of any Shares or other payments then
issuable to the Participant (or Permitted Assignee) pursuant to any Award, or
(ii) to tender other Shares to the Company (either by actual delivery or
attestation, in the sole discretion of the Committee, provided that, except as
otherwise determined by the Committee, the Shares that are tendered must have
been held by the Participant for at least six (6) months prior to their tender
to satisfy the Option Price or have been purchased on the open market), in
either case having an aggregate Fair Market Value equal to the Withholding
Taxes.
16. Registration; Legend. The Company may postpone the issuance and
delivery of Shares upon any exercise of this Option 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 or any other security issued or issuable
upon exercise of this Option 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 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.
17. Change in Control. (a) In the event of the occurrence of a change in
control of the Company (a "Change in Control"), this Option and all rights
granted hereunder shall immediately vest and be exercisable in accordance with
its terms with respect to those Shares not already vested and exercisable
pursuant to the terms of this Option. For purposes of this Option, 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 this Option, then this Option
shall not be accelerated as described in Section 17(a) hereof. For the purposes
of this Section 17(b), this Option shall be considered assumed or substituted
for if following the Change in Control, this Option or any award substituted
therefor ("Substitute Award") confers the right to purchase or receive, for each
Share subject to this Option, 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 exercise or vesting of this Option 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, this Option or the Substitute Award held by such Participant at the
time of the Change in Control shall be accelerated as described in Section 17(a)
hereof.
18. Miscellaneous. (a) Neither this Agreement nor the Certificate shall
confer upon the Participant any right to continuation of employment by the
Company, nor shall this Agreement interfere in any way with the Company's right
to terminate the Participant's employment at any time.
(b) The Participant shall have no rights as a stockholder of the Company
with respect to the Shares subject to this Agreement until such time as the
purchase price has been paid, and the Shares have been issued and delivered to
the Participant.
(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 Option 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. This Option 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
Directors, officers or stockholders of the Company nor the directors, officers
or stockholders of any subsidiary or affiliate of the Company shall be bound or
have any personal liability hereunder. Each party hereto shall look solely to
the assets of the Company for satisfaction of any liability of the Company in
respect of this Option 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 subsidiary or affiliate of the
Company, 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.
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
Optionee Certificate
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Granted To: [Name]
[Address]
[Address]
Social Security # xxx-xx-xxxx
Effective [________________], you have been granted a Non-Qualified Stock
Option to buy the following shares of Syms Corp (the "Company") common stock at
$[________] per share.
Grant Date: ________ Options Granted: [___________]
Expiration Date: ___/___/___ Option Price per share: [_______]
Vesting Schedule:
Vesting Date Percentage of Grant that Vests
___/___/___ [__]%
___/___/___ [__]%
___/___/___ [__]%
___/___/___ [__]%
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By your signature below, you agree that these options are granted under and
governed by the terms and conditions of the Company's 2005 Stock Option Plan and
the Option 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: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇