Exhibit 10.1
THIS FORM OF AWARD AGREEMENT IS PART OF A PROSPECTUS COVERING
SECURITIES THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
DSW INC.
2005 EQUITY INCENTIVE PLAN
FORM OF RESTRICTED STOCK UNITS
AWARD AGREEMENT
GRANTED TO ____________________ ON ____________________
DSW Inc. ("Company") and its shareholders believe that their business interests
are best served by extending to you an opportunity to earn additional
compensation based on the growth of the Company's business. To this end, the
Company and its shareholders adopted the DSW Inc. 2005 Equity Incentive Plan
("Plan") as a means through which you may share in the Company's success. If you
satisfy the conditions described in this Agreement (and the Plan), your Award
will mature into common shares of the Company.
This Award Agreement describes many features of your Award and the conditions
you must meet before you may receive the value associated with your Award. To
ensure you fully understand these terms and conditions, you should:
- Read the Plan and the Plan's Prospectus carefully to ensure you
understand how the Plan works;
- Read this Award Agreement carefully to ensure you understand the
nature of your Award and what you must do to earn it; and
- Contact DSW's Vice President, Human Resources at (▇▇▇) ▇▇▇-▇▇▇▇ if you
have any questions about your Award.
Also, NO LATER THAN _______________, you must return a signed copy of the Award
Agreement to:
▇▇▇▇▇ ▇▇▇▇▇▇
Vice President, Human Resources
DSW
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▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
If you do not do this, your Award will be revoked automatically as of the Grant
Date and you will not be entitled to receive anything on account of the
retroactively revoked Award.
Section 409A of the Internal Revenue Code ("Section 409A") imposes substantial
penalties on persons who receive some forms of deferred compensation (see the
Plan's Prospectus for more information about these penalties). Your Award has
been designed to avoid these penalties. However, because the Internal Revenue
Service has not yet issued rules fully defining the effect of Section 409A, it
may be necessary to revise your Award Agreement if you are to avoid these
penalties. As a condition of accepting this Award, you must agree to accept
those revisions, without any further consideration, even if those revisions
change the terms of your Award and reduce its value or potential value.
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NATURE OF YOUR AWARD
You have been granted Restricted Stock Units ("RSUs"). If you satisfy the
conditions described in this Award Agreement, your RSUs will be converted to an
equal number of shares of Company stock. Federal income tax rules apply to RSUs.
These and other conditions affecting your RSUs are described in this Award
Agreement, the Plan and the Plan's Prospectus, all of which you should read
carefully.
NO LATER THAN _______________ you must return a signed copy of this Award
Agreement to:
▇▇▇▇▇ ▇▇▇▇▇▇
Vice President, Human Resources
DSW
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▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
If you do not do this, your Award will be revoked automatically as of the Grant
Date and you will not be entitled to receive anything on account of the
retroactively revoked Award.
GRANT DATE: Your RSUs were issued on _______________.
This is the date you begin to earn your Award.
NUMBER OF RSUS: You have been granted _____ RSUs. The conditions that you must
meet before the Award matures into shares of Company stock are discussed below
in the section titled "When Your Award Will Be Settled."
WHEN YOUR AWARD WILL BE SETTLED
NORMAL SETTLEMENT DATE: Normally, your RSUs will be converted automatically and
_____ shares of Company stock will be distributed to you if you are actively
employed on _______________. However, your RSUs may be settled earlier in the
circumstances described in the next section.
HOW YOUR RSUS MIGHT BE SETTLED EARLIER THAN THE NORMAL SETTLEMENT DATE: Your
RSUs will be settled automatically and _____ shares of Company stock will be
distributed to you if, before the Normal Settlement Date:
- Your employment terminates because of death, disability (as defined in
the Plan) or retirement (i.e., you terminate after reaching age 65 and
completing at least five years of employment); or
- There is a Change in Control (as defined in the Plan).
HOW YOUR RSUS MAY BE FORFEITED: You will forfeit any RSUs if, before the Normal
Settlement Date and before a Change in Control, you terminate employment
voluntarily (for reasons other than death, disability or retirement) or if you
are involuntarily terminated by the Company for any reason before the Normal
Settlement Date (and you are not disabled or eligible for retirement).
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Also, you will forfeit your RSUs if:
- You materially fail to substantially perform your position or duties;
- You engage in illegal or grossly negligent conduct that is materially
injurious to the Company or any Related Entity (as defined in the
Plan);
- You materially violate any law or regulation governing the Company or
any Related Entity;
- You commit a material act of fraud or dishonesty which has had or is
likely to have a material adverse effect upon the Company's (or any
Related Entity's) operations or financial conditions;
- You materially breach the terms of any other agreement (including any
employment agreement) with the Company or any Related Entity; or
- You breach any term of the Plan or this Award Agreement.
Also, if you terminate your employment (or your employment is terminated) for
any reason other than those just listed (including death, disability and
retirement) and the Company subsequently discovers that you actively concealed
an act, event or failure that is within those just listed and the Company could
not have discovered that act, event or failure through reasonable diligence
before your termination, you will be required to repay to the Company the full
value you received under this Award.
SETTLING YOUR AWARD
If all applicable conditions have been met, your RSUs will be settled
automatically. At that time, you will receive one share of Company stock for
each RSU you have earned.
OTHER RULES AFFECTING YOUR AWARD
RIGHTS BEFORE YOUR RSUS ARE SETTLED: Until your RSUs are settled, you may not
exercise any voting rights associated with the shares underlying your RSUs. Nor
will you be entitled to receive any dividends with respect to those shares.
BENEFICIARY DESIGNATION: You may name a Beneficiary or Beneficiaries to receive
any RSUs to be settled after you die. This may be done only on the attached
Beneficiary Designation Form and by following the rules described in that form.
If you die without making an effective Beneficiary designation, the RSUs subject
to this Award will be converted to shares and distributed to your surviving
spouse or, if you do not have a surviving spouse, to your estate.
TAX WITHHOLDING: Income taxes must be withheld when your Award is settled and
before your shares actually are distributed to you (see the Plan's Prospectus
for a discussion of the tax treatment of your Award). These taxes may be paid in
one of several ways. They are:
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- The Company may withhold this amount from other amounts owed to you
(e.g., from your salary).
- You may pay these taxes by giving the Company a check (payable to "DSW
Inc.") in an amount equal to the taxes that must be withheld.
- By having the Company withhold a portion of the shares that otherwise
would be distributed as of the Settlement Date. The number of shares
withheld will have a fair market value equal to the taxes that must be
withheld.
- You may give the Company other shares of Company stock (that you have
owned for at least six months) with a value equal to the taxes that
must be withheld.
You may choose the approach you prefer, although the Company may reject your
preferred method for any reason (or for no reason). If this happens, the Company
will specify (from among the alternatives just listed) how these taxes are to be
paid.
If you do not choose a method of paying these taxes within 30 days of the
Settlement Date, the Company will withhold a portion of the shares that
otherwise would be distributed. The number of shares withheld will have a fair
market value equal to the taxes that must be withheld and the balance of the
shares will be distributed to you.
TRANSFERRING YOUR RSUS: Normally, your RSUs may not be transferred to another
person. However, you may complete a Beneficiary Designation Form to name the
person to receive any RSUs settled after you die. Also, the Committee may allow
you to place your RSUs into a trust established for your benefit or the benefit
of your family. Contact DSW's Vice President, Human Resources at (▇▇▇) ▇▇▇-▇▇▇▇
or at the address given below if you are interested in doing this.
GOVERNING LAW: This Award Agreement will be construed in accordance with and
governed by the laws of the United States and the laws of the State of Ohio
(other than laws governing conflicts of laws).
NON COMPETITION: In consideration of receiving this Award, you agree for one
year after terminating employment with the Company or any Related Entity not,
directly or indirectly, to accept employment with, act as a consultant to, or
otherwise perform services that are substantially the same or similar to those
for which you were compensated by the Company or any Related Entity (this
comparison will be based on job-related functions and responsibilities and not
on job title) for any business that directly competes with the Company's
business, which is understood to be the sale of off-price and discount
merchandise, including discount and off-price shoes and accessories.
Illustrations of business that compete with the Company's business include: The
TJX Companies, Inc. (T.J. Maxx; Marshall's; HomeGoods; ▇.▇.▇▇▇▇▇▇; Marmaxx;
Winners); Shoe Carnival; MJM Designer Shoes; ▇▇▇▇ Stores, Inc.; Payless
ShoeSource; Off-Broadway Shoes; Famous Footwear; Footstar; Big Lots Stores,
Inc.; and Burlington Coat Factory Warehouse Corporation and any of its
affiliates. This restriction applies to any parent, division, affiliate, newly
formed or purchased business(es) and/or successor of a business that competes
with the Company's business.
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SOLICITATION OF EMPLOYEES: In consideration of receiving this Award, you agree
that during your employment, and for two years after terminating employment with
the Company or any Related Entity [1] not, directly or indirectly, to solicit
any employee of the Company or any Related Entity to leave employment with the
Company or any Related Entity, [2] not, directly or indirectly, to employ or
seek to employ any employee of the Company or any Related Entity and [3] not to
cause or induce the Company's or any Related Entity's competitors to solicit or
employ any employee of the Company or any Related Entity.
SOLICITATION OF THIRD PARTIES: In consideration of receiving this Award, you
agree that during your employment, and for two years after terminating
employment with the Company or any Related Entity not, directly or indirectly,
to recruit, solicit or otherwise induce or influence any customer, supplier,
sales representative, lender, lessor, lessee or any other person having a
business relationship with the Company or any Related Entity to discontinue or
reduce the extent of that relationship except in the course of discharging your
duties to the Company or any Related Entity and with the good faith objective of
advancing the Company's or any Related Entity's business interests.
NON-DISPARAGEMENT: In consideration of receiving this Award, you and the Company
(on its behalf and on behalf of each Related Entity) agree that neither will
make any disparaging remarks about the other and you will not make any
disparaging remarks about the Company's Chairman, Chief Executive Officer or any
of the Related Entities' senior executives. However, this section will not
preclude [1] any remarks that may be made by you pursuant to a lawfully-served
subpoena or court order or that are required to discharge your duties to the
Company or any Related Entity or [2] the Company from making (or eliciting from
any person) disparaging remarks about you concerning any conduct that may lead
to a termination for Cause (as defined in the Plan) (including initiating an
inquiry or investigation that may result in a termination for Cause), but only
to the extent reasonably necessary to investigate your conduct and to protect
the Company's and the Related Entities' interests.
OTHER AGREEMENTS: Also, your RSUs will be subject to the terms of any other
written agreements between you and the Company.
ADJUSTMENTS TO YOUR RSUS: Your RSUs will be adjusted, if appropriate, to reflect
any change to the Company's capital structure (e.g., the number of your RSUs
will be adjusted to reflect a stock split).
OTHER RULES: Your RSUs also are subject to more rules described in the Plan and
in the Plan's Prospectus. You should read both these documents carefully to
ensure you fully understand all the conditions of this Award.
TAX TREATMENT OF YOUR AWARD
The federal income tax treatment of your RSUs is discussed in the Plan's
Prospectus which you should read carefully.
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You may contact DSW's Vice President, Human Resources at (▇▇▇) ▇▇▇-▇▇▇▇ or at
the address given below if you have any questions about your Award or this Award
Agreement.
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YOUR ACKNOWLEDGMENT OF AWARD CONDITIONS
NOTE: You must sign and return a copy of this Award Agreement to DSW's Vice
President, Human Resources at the address given below NO LATER THAN ___________.
By signing below, I acknowledge and agree that:
- A copy of the Plan has been made available to me;
- I have received a copy of the Plan's Prospectus;
- I understand and accept the conditions placed on my Award and
understand what I must do to earn my Award;
- I will consent (in my own behalf and in behalf of my Beneficiaries and
without any further consideration) to any change to my Award or this
Award Agreement to avoid paying penalties under Section 409A of the
Internal Revenue Code, even if those changes affect the terms of my
Award and reduce its value or potential value; and
- If I do not return a signed copy of this Award Agreement to the
address shown below before _______________, my Award will be revoked
automatically as of the date it was granted and I will not be entitled
to receive anything on account of the retroactively revoked Award.
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(signature)
Date signed:
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A signed copy of this form must be sent to the following address NO LATER THAN
_____________:
▇▇▇▇▇ ▇▇▇▇▇▇
Vice President, Human Resources
DSW
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▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
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COMMITTEE'S ACKNOWLEDGMENT OF RECEIPT
A signed copy of this Award Agreement was received on ______________.
By:
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:
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_____ Has complied with the conditions imposed on the grant and the Award
and the Award Agreement remains in effect; or
_____ Has not complied with the conditions imposed on the grant and the
Award and the Award Agreement are revoked as of the Grant Date because
________________________________________________________________
describe deficiency
DSW Inc. 2005 Equity Incentive Plan Committee
By:
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Date:
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NOTE: Send a copy of this completed form to ____________________ and keep a copy
as part of the Plan's permanent records.
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DSW INC.
2005 EQUITY INCENTIVE PLAN
BENEFICIARY DESIGNATION FORM
RELATING TO RESTRICTED STOCK UNITS ISSUED TO ________________ ON _____________
INSTRUCTIONS FOR COMPLETING THIS FORM
You may use this form to [1] name the person you want to receive any amount due
under the DSW Inc. 2005 Equity Incentive Plan after your death or [2] change the
person who will receive these benefits.
There are several things you should know before you complete this form.
FIRST, if you do not elect another Beneficiary, any amount due to you under the
Plan when you die will be paid to your surviving spouse or, if you have no
surviving spouse, to your estate.
SECOND, your election will not be effective (and will not be implemented) unless
you sign this form.
THIRD, your election will be effective only if and when this form is completed
properly and returned to DSW's Vice President, Human Resources at the address
given below.
FOURTH, all elections will remain in effect until they are changed (or until all
death benefits are paid).
FIFTH, if you designate your spouse as your Beneficiary but are subsequently
divorced from that person (or your marriage is annulled), your Beneficiary
designation will be revoked automatically.
SIXTH, if you have any questions about this form or if you need additional
copies of this form, please contact DSW's Vice President, Human Resources at
(▇▇▇) ▇▇▇-▇▇▇▇ or at the address given below.
1.00 DESIGNATION OF BENEFICIARY
1.01 PRIMARY BENEFICIARY:
I designate the following persons as my Primary Beneficiary or Beneficiaries to
receive any shares of DSW stock due after my death under the terms of the Award
Agreement described at the top of this form. These shares will be allocated, in
the proportion specified, to:
______% to ________________________________________________________________
(Name) (Relationship)
Address: __________________________________________________________________
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______% to ________________________________________________________________
(Name) (Relationship)
Address: __________________________________________________________________
______% to ________________________________________________________________
(Name) (Relationship)
Address: __________________________________________________________________
______% to ________________________________________________________________
(Name) (Relationship)
Address: __________________________________________________________________
1.02 CONTINGENT BENEFICIARY
IF ONE OR MORE OF MY PRIMARY BENEFICIARIES DIES BEFORE I DIE, I DIRECT THAT any
shares of DSW stock due after my death under the terms of the Award Agreement
described at the top of this form:
_____ Be allocated to my other named Primary Beneficiaries in proportion to
the allocation given above (ignoring the interest allocated to the deceased
Primary Beneficiary); or
_____ Be distributed among the following Contingent Beneficiaries.
______% to ________________________________________________________________
(Name) (Relationship)
Address: __________________________________________________________________
______% to ________________________________________________________________
(Name) (Relationship)
Address: __________________________________________________________________
______% to ________________________________________________________________
(Name) (Relationship)
Address: __________________________________________________________________
______% to ________________________________________________________________
(Name) (Relationship)
Address: __________________________________________________________________
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ELECTIONS MADE ON THIS FORM WILL BE EFFECTIVE ONLY AFTER THIS FORM IS RECEIVED
BY DSW'S VICE PRESIDENT, HUMAN RESOURCES AND ONLY IF IT IS FULLY AND PROPERLY
COMPLETED AND SIGNED.
Name:
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Soc. Sec. No.:
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Date of Birth:
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Address:
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Sign and return this form to DSW's Vice President, Human Resources at the
address given below.
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Date Signature
Return this signed form to DSW's Vice President, Human Resources at the
following address:
▇▇▇▇▇ ▇▇▇▇▇▇
Vice President, Human Resources
DSW
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Received on:
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By:
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