1
EXHIBIT 10.17(a)
RESTRICTED STOCK AWARD AGREEMENT
UNDER THE VENATOR GROUP
1998 STOCK OPTION AND AWARD PLAN
This Restricted Stock Award Agreement (the "Agreement") made under the
Venator Group 1998 Stock Option and Award Plan (the "Plan") as of the 26th day
of April 1999 by and between Venator Group, Inc., a New York corporation with
its principal office located at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the
"Company") and ▇▇▇▇▇ ▇. ▇▇▇▇▇ (the "Executive").
The Compensation Committee of the Board of Directors of the Company granted
the Executive an award of 275,000 shares of Restricted Stock under the Plan,
subject to the terms of the Plan and the restrictions set forth in this
Agreement, effective as of the date hereof (the "Date of Grant").
1. Grant of Shares
The Company is transferring to the Executive 275,000 shares of validly
issued Common Stock of the Company, par value $.01 per share. Such shares are
fully paid and nonassessable and upon transfer shall be validly issued and
outstanding. The shares are subject to certain restrictions pursuant to Section
3 hereof, which restrictions shall expire as provided in Section 3.3 hereof.
2. Restrictions on Transfer
The Employee shall not sell, transfer, pledge, hypothecate, assign or
otherwise dispose of the Restricted Stock, except as set forth in this
Agreement. Any attempted sale, transfer, pledge, hypothecation, assignment or
other disposition of the shares in violation of this Agreement shall be void and
of no effect and the Company shall have the right to disregard the same on its
books and records and to issue "stop transfer" instructions to its transfer
agent.
3. Restricted Stock
3.1 Deposit of Certificates. The Executive will deposit with and deliver to
the Company the stock certificate or certificates representing the Restricted
Stock, each duly endorsed in blank or accompanied by stock powers duly executed
in blank. In the event the Executive receives a stock dividend on the Restricted
Stock or the Restricted Stock is split or the Executive receives any other
shares, securities, monies, or property representing a dividend on the
Restricted Stock (other than regular cash dividends on and after the date of
this Agreement) or representing a distribution or return of capital upon or in
respect of the Restricted Stock or any part thereof, or resulting from a
split-up, reclassification or other like changes of the Restricted Stock, or
otherwise received in exchange therefor, and any warrants, rights or options
issued to the Executive in respect of the Restricted Stock (collectively the "RS
Property"), the Executive will also immediately deposit with and deliver to the
1
2
Company any of such RS Property, including any certificates representing shares
duly endorsed in blank or accompanied by stock powers duly executed in blank,
and such RS Property shall be subject to the same restrictions, including that
of this Section 3.1, as the Restricted Stock with regard to which they are
issued and shall herein be encompassed within the term "Restricted Stock."
3.2 Rights with Regard to the Restricted Stock. The Restricted Stock has
been transferred from either the Company's treasury or newly issued stock and,
therefore, upon delivery to the Executive will constitute issued and outstanding
shares of Common Stock for all corporate purposes. From and after the date of
transfer, the Executive will have the right to vote the Restricted Stock, to
receive and retain all regular cash dividends payable to record holders of
Common Stock on and after the transfer of the Restricted Stock (although such
dividends shall be treated, to the extent required by law, as additional
compensation for tax purposes if paid on Restricted Stock), and to exercise all
other rights, powers and privileges of a holder of Common Stock with respect to
the Restricted Stock, with the exceptions that (i) the Executive will not be
entitled to delivery of the stock certificate or certificates representing the
Restricted Stock until the restriction period shall have expired and unless all
other vesting requirements with respect thereto shall have been fulfilled, (ii)
the Company will retain custody of the stock certificate or certificates
representing the Restricted Stock and the other RS Property during the
restriction period, (iii) no RS Property shall bear interest or be segregated in
separate accounts during the restriction period and (iv) the Executive may not
sell, assign, transfer, pledge, exchange, encumber or dispose of the Restricted
Stock during the restriction period.
3.3 Vesting. The Restricted Stock shall become vested and cease to be
Restricted Stock (but still subject to the other terms of the Plan and this
Agreement) as follows if the Executive has been continuously employed by the
Company or its subsidiaries within the meaning of Section 424 of the Internal
Revenue Code of 1986, as amended (the "Control Group") until such date:
January 31, 2000 91,666 shares
January 31, 2001 91,667 shares
January 31, 2002 91,667 shares
Other than as may be provided for under Section 3.4 hereof, there shall be
no proportionate or partial vesting in the periods prior to the appropriate
vesting date and all vesting shall occur only on the appropriate vesting date.
When any Restricted Stock becomes vested, the Company shall promptly issue
and deliver to the Executive a new stock certificate registered in the name of
the Executive for such shares without the legend set forth in Section 4 hereof
and deliver to the Executive any related other RS Property.
In addition, as provided under the terms of the Plan, all shares of
Restricted Stock shall become immediately vested and cease to be Restricted
Stock upon any Change in Control as defined in Appendix A hereto.
2
3
3.4 Forfeiture. In the event of the Executive's death, disability, or
resignation, the Executive shall forfeit to the Company, without compensation,
all unvested shares of Restricted Stock; provided that (i) in the event of the
death or disability of the Executive, (ii) in the event that the Executive
ceases to be employed by the Company or any subsidiary or affiliate of the
Company as a result of the closing, sale, spin-off or other divestiture of any
operation of the Company, or (iii) in the event of the Executive's resignation
from the Company prior to the next applicable vesting date, the Compensation
Committee of the Board of Directors of the Company may, in its sole discretion,
but shall not be obligated to, fully vest and not forfeit all or any portion of
the Executive's Restricted Stock.
3.5 Adjustments. In the event of any stock dividend, split up, split-off,
spin-off, distribution, recapitalization, combination or exchange of shares,
merger, consolidation, reorganization or liquidation or the like, the Restricted
Stock shall, where appropriate in the sole discretion of the Compensation
Committee of the Board of Directors of the Company, receive the same
distributions as other shares of Common Stock or on some other basis as
determined by the Compensation Committee of the Board of Directors. In any such
event, the Compensation Committee of the Board of Directors may, in its sole
discretion, determine to award additional Restricted Stock in lieu of the
distribution or adjustment being made with respect to other shares of Common
Stock. In any such event, the determination made by the Compensation Committee
of the Board of Directors shall be conclusive. The Compensation Committee of the
Board of Directors may, in its sole discretion, at any time fully vest and not
forfeit all or any portion of the Executive's Restricted Stock.
3.6 Withholding. The Employee agrees that, subject to subsection 3.7 below,
(a) No later than the date on which any Restricted Stock shall have become
vested, the Executive will pay to the Company, or make arrangements satisfactory
to the Company regarding payment of, any federal, state or local taxes of any
kind required by law to be withheld with respect to any Restricted Stock which
shall have become so vested;
(b) The Company shall, to the extent permitted by law, have the right to
deduct from any payment of any kind otherwise due to the Executive any federal,
state or local taxes of any kind required by law to be withheld with respect to
any Restricted Stock which shall have become so vested; and
(c) In the event the Executive does not satisfy (a) above on a timely
basis, the Company may, but shall not be required to, pay such required
withholding and treat such amount as a demand loan to the Employee at the
maximum rate permitted by law, with such loan, at the Company's sole discretion
and provided the Company so notifies the Employee within thirty (30) days of the
making of the loan, secured by the shares of Common Stock and any failure by the
Executive to pay the loan upon demand shall entitle the Company to all of the
rights at law of a creditor secured by the shares of Common Stock. The Company
may hold as security any certificates representing any shares of Common Stock
and, upon demand of the Company, the Executive shall deliver to the Company any
certificates in his possession representing shares of Common Stock together with
a stock power duly endorsed in blank.
3
4
3.7 Section 83(b). If the Executive properly elects (as required by Section
83(b) of the Internal Revenue Code of 1986, as amended) within thirty (30) days
after the issuance of the Restricted Stock to include in gross income for
federal income tax purposes in the year of issuance the fair market value of
such Restricted Stock, the Executive shall pay to the Company or make
arrangements satisfactory to the Company to pay to the Company upon such
election, any federal, state or local taxes required to be withheld with respect
to such Restricted Stock. If the Executive shall fail to make such payment, the
Company shall, to the extent permitted by law, have the right to deduct from any
payment of any kind otherwise due to the Executive any federal, state or local
taxes of any kind required by law to be withheld with respect to such Restricted
Stock, as well as the rights set forth in Section 3.6(c) hereof. The Executive
acknowledges that it is his sole responsibility, and not the Company's, to file
timely the election under Section 83(b) of the Internal Revenue Code of 1986, as
amended, and any corresponding provisions of state tax laws if he elects to
utilize such election.
3.8 Special Incentive Compensation. The Executive agrees that the award of
the Restricted Stock hereunder is special incentive compensation and that it,
any dividends paid thereon (even if treated as compensation for tax purposes)
and any other RS Property will not be taken into account as "salary" or
"compensation" or "bonus" in determining the amount of any payment under any
pension, retirement or profit-sharing plan of the Company or any life insurance,
disability or other benefit plan of the Company.
3.9 Delivery Delay. The delivery of any certificate representing Restricted
Stock or other RS Property may be postponed by the Company for such period as
may be required for it to comply with any applicable federal or state securities
law, or any national securities exchange listing requirements and the Company is
not obligated to issue or delivery any securities if, in the opinion of counsel
for the Company, the issuance of such shares shall constitute a violation by the
Executive or the Company of any provisions of any law or of any regulations of
any governmental authority or any national securities exchange.
4. Legend. All certificates representing shares of Restricted Stock shall
have endorsed thereon a legend referring to the terms conditions and
restrictions applicable to such Restricted Stock, substantially in the following
form:
"The anticipation, alienation, attachment, sale, transfer, assignment,
pledge, encumbrance or charge of the shares of stock represented hereby are
subject to the terms and conditions (including forfeiture) of the Venator Group
(the "Company") 1998 Stock Option and Award Plan and an Agreement entered into
between the registered owner and the Company dated , 1999. Copies of such Plan
and Agreement are on file at the principal office of the Company."
4
5
5. Not an Employment Agreement. The issuance of the shares of Restricted
Stock hereunder does not constitute an agreement by the Company to continue to
employ the Executive during the entire, or any portion of the, term of this
Agreement, including but not limited to any period during which the Restricted
Stock is outstanding.
6. Power of Attorney. The Company, its successors and assigns, is hereby
appointed the attorney-in-fact, with full power of substitution, of the
Executive for the purpose of carrying out the provisions of this Agreement and
taking any action and executing any instruments which such attorney-in-fact may
deem necessary or advisable to accomplish the purposes hereof, which appointment
as attorney-in-fact is irrevocable and coupled with an interest. The Company, as
attorney-in-fact for the Executive, may, in the name and stead of the Executive,
make and execute all conveyances, assignments and transfers of the Restricted
Stock, Shares and property provided for herein, and the Executive hereby
ratifies and confirms all that the Company, as said attorney-in-fact, shall do
by virtue hereof. Nevertheless, the Executive shall, if so requested by the
Company, execute and deliver to the Company all such instruments as may, in the
judgment of the Company, be advisable for the purpose.
7. Miscellaneous.
7.1 This Agreement shall inure to the benefit of and be binding upon all
parties hereto and their respective heirs, legal representatives, successors and
assigns.
7.2 This Agreement constitutes the entire agreement between the parties and
cannot be changed or terminated orally. No modification or waiver of any of the
provisions hereof shall be effective unless in writing and signed by the party
against whom it is sought to be enforced.
7.3 This Agreement may be executed in one or more counterparts, all of
which taken together shall constitute one contract.
7.4 The failure of any party hereto at any time to require performance by
another party of any provision of this Agreement shall not affect the right of
such party to require performance of that provision, and any waiver by any party
of any breach of any provision of this Agreement shall not be construed as a
waiver of any continuing or succeeding breach of such provision, a waiver of the
provision itself, or a waiver of any right under this Agreement.
7.5 This Agreement is subject, in all respects, to the provisions of the
Plan, and to the extent any provision of this Agreement contravenes or is
inconsistent with any provision of the Plan, the provisions of the Plan shall
govern.
7.6 The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall in no way restrict or modify any of the
terms or provisions hereof.
5
6
7.7 All notices, consents, requests, approvals, instructions and other
communications provided for herein shall be in writing and validly given or made
when delivered, or on the second succeeding business day after being mailed by
registered or certified mail, whichever is earlier, to the persons entitled or
required to receive the same, at the address of the Company set forth at the
heading of this Agreement and at the address shown on the records of the Company
for the Executive or to such other address as either party may designate by like
notice. Notices to the Company shall be addressed to the Chairman of the
Compensation Committee with a copy similarly sent to the General Counsel.
7.8 This Agreement shall be governed and construed and the legal
relationships of the parties determined in accordance with the internal laws of
the State of New York.
7.9 To indicate your acceptance of the terms of this Restricted Stock Award
Agreement, you must sign and deliver or mail not later than June 13, 1999, a
copy of this Agreement to the General Counsel of the Company at the address
provided in the heading of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
VENATOR GROUP, INC.
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Senior Vice President
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
ROGHER ▇. ▇▇▇▇▇
Chairman of the Board
and Chief Executive Officer
6
7
ACKNOWLEDGMENT
STATE OF NEW YORK )
---------------------------------- ) s.s.:
COUNTY OF NEW YORK )
----------------------------------
On this 26th day of April 1999, before me personally appeared ▇▇▇▇▇ ▇.
▇▇▇▇▇, to me known to be the person described in and who executed the foregoing
agreement, and acknowledged that he executed the same as his free act and deed.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Notary Public
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Notary Public, State of New York
No. 01CL4739218
Qualified in New York County
Commission Expires May 31, 2001
7
8
APPENDIX A
----------
Change in Control
A Change in Control shall mean any of the following: (i) (A) the making of
a tender or exchange offer by any person or entity or group of associated
persons or entities (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934) (a "Person") (other than the Company or its
Affiliates) for shares of Common Stock pursuant to which purchases are made of
securities representing at least twenty percent (20%) of the total combined
voting power of the Company's then issued and outstanding voting securities; (B)
the merger or consolidation of the Company with, or the sale or disposition of
all or substantially all of the assets of the Company to, any Person other than
(a) a merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving or parent entity) fifty percent (50%) or more of the combined voting
power of the voting securities of the Company or such surviving or parent entity
outstanding immediately after such merger or consolidation; or (b) a merger or
capitalization effected to implement a recapitalization of the Company (or
similar transaction) in which no Person is or becomes the beneficial owner,
directly or indirectly (as determined under Rule 13d-3 promulgated under the
Securities Exchange Act of 1934), of securities representing more than the
amounts set forth in (C) below; (C) the acquisition of direct or indirect
beneficial ownership (as determined under Rule 13d-3 promulgated under the
Securities Exchange Act of 1934), in the aggregate, of securities of the Company
representing twenty percent (20%) or more of the total combined voting power of
the Company's then issued and outstanding voting securities by any Person acting
in concert as of the date of this Agreement; provided, however, that the Board
of Directors of the Company (referred to herein as the "Board") may at any time
and from time to time and in the sole discretion of the Board, as the case may
be, increase the voting security ownership percentage threshold of this item (C)
to an amount not exceeding forty percent (40%); or (D) the approval by the
shareholders of the Company of any plan or proposal for the complete liquidation
or dissolution of the Company or for the sale of all or substantially all of the
assets of the Company; or (ii) during any period of not more than two (2)
consecutive years, individuals who at the beginning of such period constitute
the Board, and any new director (other than a director designated by a person
who has entered into agreement with the Company to effect a transaction
described in clause (i)) whose election by the Board or nomination for election
by the Company's shareholders was approved by a vote of at least two-thirds
(2/3) of the directors then still in office who either were directors at the
beginning of the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute at least a majority
thereof.
8
