Exhibit 10.2.8
CHARMING SHOPPES, INC.
1993 EMPLOYEES' STOCK INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT
Agreement dated as of February 11, 2002, between CHARMING SHOPPES, INC.
(the "Company") and [first] [last] (the "Employee").
It is agreed as follows:
1. Grant of Restricted Stock; Consideration.
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The Company hereby confirms the grant, under the Company's 1993 Employees'
Stock Incentive Plan (the "Plan"), to Employee on the date of this Restricted
Stock Agreement (the "Date of Grant") of [shares] shares of the Company's
common stock, par value $0.10 per share ("Shares"), pursuant to Section 6(d) of
the Plan, and subject to restrictions as set forth herein and in the Plan
("Restricted Stock"). Employee shall be required to pay no cash consideration
for the grant of the Restricted Stock, but Employee's prior services to the
Company, performance of services to the Company prior to the expiration of
applicable restrictions relating to the Restricted Stock and otherwise during
the term of his or her employment, and his or her agreement to abide by the
terms set forth in the Plan, this Restricted Stock Agreement (the "Agreement"),
and any Rules and Regulations under the Plan, shall be deemed to be
consideration for this grant of Restricted Stock.
2. Incorporation of Plan by Reference.
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The Restricted Stock has been granted to Employee under the Plan, a copy of
which (excluding exhibits) is attached hereto. All of the terms, conditions and
other provisions of the Plan are hereby incorporated by reference into this
Agreement. Capitalized terms used in this Agreement but not defined herein shall
have the same meanings as in the Plan. If there is any conflict between the
provisions of this Agreement and the provisions of the Plan, the provisions of
the Plan shall govern. Employee hereby accepts the grant of Restricted Stock,
acknowledges receipt of the attached copy of the Plan, and agrees to be bound by
all the terms and provisions hereof and thereof (as presently in effect or
hereafter amended), and by all decisions and determinations of the Board or
Committee under the Plan.
3. Restrictions on Restricted Stock.
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(a) Restrictions Generally. Until they lapse in accordance with Section
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3(b), 3(c), or 5(a), the following restrictions (the "Restrictions") shall apply
to the Restricted Stock: (1) Employee shall have no right to sell, transfer,
assign, pledge, or otherwise encumber or dispose of the Restricted Stock (except
for transfers and forfeitures to the Company); and (2) the Restricted Stock
shall be subject to the risk of forfeiture as set forth in Section 3(b).
Employee shall be entitled to receive dividends and distributions on the
Restricted Stock when, as, and if declared and paid on Shares, provided that,
unless otherwise determined by the Committee, dividends and distributions shall
be deemed reinvested in additional Restricted Stock at the Fair Market Value of
Shares on the payment date, which additional Restricted Stock shall be subject
to the same Restrictions as apply to the original Restricted Stock; Employee
shall be entitled to vote Restricted Stock on any matter submitted to a vote of
holders of Common Stock; and Employee shall have all other rights of a
shareholder of the Company except as otherwise expressly limited or provided
under this Section 3.
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THE DATE OF GRANT OF THIS OPTION IS: [grantdate]
GRANT NUMBER: [grantnumber]
(b) Forfeiture. Unless otherwise determined by the Committee, if Employee's
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employment terminates and he or she thereafter is not an employee of the Company
or any of its subsidiaries (a "Termination"), and such Termination is for any
reason other than due to death, permanent disability, or involuntary termination
by the Company for reasons other than "Cause," the Restricted Stock as to which
Restrictions have not lapsed at or before such Termination shall be forfeited at
the time of such Termination. Accordingly, Employee's voluntary Termination or
Termination by the Company for Cause will result in all shares of Restricted
Stock which remain subject to Restrictions being immediately forfeited. In the
event of Employee's Termination due to death or permanent disability, all
Restrictions on the Restricted Stock shall lapse at the time of such Termination
(i.e., none of the Restricted Stock will be forfeited). In the event of
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Employee's Termination due to involuntary termination by the Company for reasons
other than "Cause," the Restrictions on those shares of Restricted Stock as to
which Restrictions would have lapsed at the next anniversary of the Date of
Grant will lapse on an accelerated basis at the time of such Termination (i.e.,
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if Termination is more than two (2) years after the Date of Grant, one
additional tranche of the Restricted Stock will become non-forfeitable), and
those shares of Restricted Stock as to which Restrictions have not lapsed at or
before such Termination (i.e., any tranche as to which Restrictions would have
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lapsed at an anniversary of the Date of Grant after the next anniversary date)
shall be forfeited at the time of such Termination. For purposes of this
Agreement, "Cause" shall mean Employee's chronic neglect, refusal or failure to
fulfill his or her employment duties and responsibilities, other than for
reasons of sickness, accident or other similar causes beyond Employee's control.
Such neglect, refusal or failure shall be determined in the sole and reasonable
judgment of the Committee. For purposes of this Agreement, the existence of a
"permanent disability" shall be determined by, or in accordance with criteria
and standards adopted by, the Committee.
(c) Expiration of Restrictions. Unless the Restrictions on Restricted Stock
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lapse earlier under Section 3(b) or 5(a), the Restrictions shall lapse as to
thirty (30%) percent of the total number of shares of Restricted Stock on the
third anniversary of the Date of Grant, an additional thirty (30%) percent of
the total number of shares of Restricted Stock on the fourth anniversary of the
Date of Grant and the remaining forty (40%) percent of the total number of
shares of Restricted Stock on the fifth anniversary of the Date of Grant. Upon
expiration of the Restrictions on any Restricted Stock, the Company shall
promptly deliver to Employee one or more certificates representing such Shares
(which shall no longer be deemed to be Restricted Stock), with any legend
referring to the Restrictions removed from such certificate(s), or shall cause
such Shares to be delivered to a broker or bank which maintains an account for
Employee or Employee's designee, for deposit to such account.
(d) Certificates Representing Restricted Stock. Restricted Stock shall be
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evidenced by issuance of one or more certificates in the name of Employee,
bearing an appropriate legend referring to the terms, conditions, and
Restrictions applicable hereunder. Unless otherwise determined by the Committee,
such certificates shall remain in the physical custody of the General Counsel of
the Company or his designee until such time as the Restrictions on such shares
have lapsed. In addition, Restricted Stock shall be subject to such
stop-transfer orders and other restrictive measures as the General Counsel of
the Company shall deem advisable under federal or state securities laws, rules
and regulations thereunder, and the rules of the Nasdaq National Market System
or any national securities exchange on which Common Stock is then quoted or
listed, or to implement the Restrictions, and the General Counsel may cause a
legend or legends to be placed on any such certificates to make appropriate
reference to the Restrictions.
(e) Stock Powers. Employee agrees to execute and deliver to the Company one
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or more stock powers, in such form as may be specified by the General Counsel,
authorizing the transfer of the Restricted Stock to the Company, at the Date of
Grant of the Restricted Stock or upon request at any time thereafter.
4. Tax Withholding.
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Employee agrees to remit to the Company and any subsidiary, and authorizes
the Company and any subsidiary to deduct from any payment to be made to Employee
hereunder if such remittance has not been made, any amount that federal, state,
local, or foreign tax law requires to be withheld with respect to the Restricted
Stock or lapse of restrictions thereon. If and to the extent permitted by the
Board or Committee at the time such tax withholding may be required, Employee
will be entitled to elect to have the Company withhold from the number of Shares
as to which the risks of forfeiture are then to lapse, or to elect to deliver to
the Company from shares of the Company's common stock owned separately by
Employee, a number of whole shares up to but not exceeding that
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number which has a Fair Market Value nearest to but not exceeding the amount of
federal, state and local taxes required to be withheld as a result of the lapse
of such risks of forfeiture, to the extent, if any, permitted under rules and
regulations adopted by the Committee and in effect at the time of the lapse of
such risks of forfeiture. In such case, the Shares withheld or the shares
surrendered will be valued at the Fair Market Value determined in accordance
with procedures for valuing shares as set forth in rules and regulations adopted
by the Committee and otherwise in effect at the time of lapse of such risks of
forfeiture.
5. Change of Control Provisions.
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(a) Acceleration of Expiration of Restrictions. In the event of a Change of
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Control at a time that Employee is employed by the Company or any of its
subsidiaries and after the date of grant of the Restricted Stock, the
Restrictions on the Restricted Stock shall lapse immediately prior to the Change
of Control.
(b) Definitions of Certain Terms. For purposes of this Agreement, the
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following definitions shall apply:
(1) "Beneficial Owner," "Beneficially Owns," and "Beneficial
Ownership" shall have the meanings ascribed to such terms for purposes of
Section 13(d) of the Exchange Act and the rules thereunder, except that,
for purposes of this Section 5, "Beneficial Ownership" (and the related
terms) shall include Voting Securities that a Person has the right to
acquire pursuant to any agreement, or upon exercise of conversion rights,
warrants, options, or otherwise, regardless of whether any such right is
exercisable within 60 days of the date as of which Beneficial Ownership is
to be determined.
(2) "Change of Control" means and shall be deemed to have
occurred if
(i) any Person, other than the Company or a Related Party,
acquires directly or indirectly the Beneficial Ownership of any Voting
Security of the Company and immediately after such acquisition such
Person has, directly or indirectly, the Beneficial Ownership of Voting
Securities representing 20 percent or more of the total voting power
of all the then-outstanding Voting Securities; or
(ii) those individuals who as of the Date of Grant
constitute the Board or who thereafter are elected to the Board and
whose election, or nomination for election, to the Board was approved
by a vote of at least two-thirds (2/3) of the directors then still in
office who either were directors as of the Date of Grant or whose
election or nomination for election was previously so approved, cease
for any reason to constitute a majority of the members of the Board;
or
(iii) there is consummated a merger, consolidation,
recapitalization, or reorganization of the Company, a reverse stock
split of outstanding Voting Securities, or an acquisition of
securities or assets by the Company (a "Transaction"), other than a
Transaction which would result in the holders of Voting Securities
having at least 80 percent of the total voting power represented by
the Voting Securities outstanding immediately prior thereto continuing
to hold Voting Securities or voting securities of the surviving entity
having at least 60 percent of the total voting power represented by
the Voting Securities or the voting securities of such surviving
entity outstanding immediately after such Transaction and in or as a
result of which the voting rights of each Voting Security relative to
the voting rights of all other Voting Securities are not altered; or
(iv) there is implemented or consummated a plan of complete
liquidation of the Company or sale or disposition by the Company of
all or substantially all of the Company's assets other than any such
transaction which would result in Related Parties owning or acquiring
more than 50 percent of the assets owned by the Company immediately
prior to the transaction.
(3) "Person" shall have the meaning ascribed for purposes of
Section 13(d) of the Exchange Act and the rules thereunder.
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(4) "Related Party" means (i) a majority-owned subsidiary of the
Company; or (ii) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any majority-owned subsidiary of
the Company; or (iii) a corporation owned directly or indirectly by the
shareholders of the Company in substantially the same proportion as their
ownership of Voting Securities; or (iv) if, prior to any acquisition of a
Voting Security which would result in any Person Beneficially Owning more
than ten percent of any outstanding class of Voting Security and which
would be required to be reported on a Schedule 13D or an amendment thereto,
the Board approved the initial transaction giving rise to an increase in
Beneficial Ownership in excess of ten percent and any subsequent
transaction giving rise to any further increase in Beneficial Ownership;
provided, however, that such Person has not, prior to obtaining Board
approval of any such transaction, publicly announced an intention to take
actions which, if consummated or successful (at a time such Person has not
been deemed a "Related Party"), would constitute a Change of Control.
(5) "Voting Securities" means any securities of the Company which
carry the right to vote generally in the election of directors.
6. Miscellaneous.
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This Agreement shall be binding upon the heirs, executors, administrators,
and successors of the parties. This Agreement constitutes the entire agreement
between the parties with respect to the Restricted Stock granted hereby, and
supersedes any prior agreements or documents with respect to such Restricted
Stock. No amendment, alteration, suspension, discontinuation, or termination of
this Agreement which may impose any additional obligation upon the Company or
materially and adversely affect the rights of Employee with respect to the
Restricted Stock shall be valid unless in each instance such amendment,
alteration, suspension, discontinuation, or termination is expressed in a
written instrument duly executed in the name and on behalf of the Company and by
Employee.
CHARMING SHOPPES, INC.
BY:
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(Authorized Officer)
EMPLOYEE:
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[first][last]
Attachments: 1993 Employees' Stock Incentive Plan
Form of Stock Power
STOCK POWER
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FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto Charming Shoppes, Inc. [shares] shares of Common Stock, $0.10 par value per
share, of Charming Shoppes, Inc., a Pennsylvania corporation (the
"Corporation"), registered in the name of the undersigned on the books and
records of the Corporation, and does hereby irrevocably constitute and appoint
▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, and each of them, attorneys, to transfer
the Common Stock on the books of the Corporation, with full power of
substitution in the premises.
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[first][last]
Date:
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