Exhibit 10.1
Books-A-Million, Inc.
Outside Director Restricted Stock Agreement
THIS AGREEMENT, dated ____________, 200__ (the "Award Date"), is made
between Books-A-Million, Inc., a Delaware corporation hereinafter referred to as
the "Company," and ______________, an Outside Director of the Company,
hereinafter referred to as the "Participant."
1. Definitions. All capitalized terms used in this Agreement without
definition shall have the meanings ascribed in the Company's 2005 Incentive
Award Plan, as amended from time to time (the "Plan").
2. Award of Restricted Stock.
(a) Award. In consideration of the Participant's agreement to provide
services to the Company as an Outside Director, and for other good and valuable
consideration which the Compensation Committee has determined exceeds the
aggregate par value of the shares of the common stock of the Company (the
"Common Stock") subject to the Award (as defined below), as of the Award Date,
the Company issues to the Participant the Award described in this Agreement (the
"Award"). The number of shares of Restricted Stock (the "Shares") subject to the
Award (which shall be subject to adjustment in accordance with Section 11 of the
Plan) is set forth on the signature page hereof.
(b) Purchase Price; Book Entry Form. The purchase price of the Shares is
zero dollars ($0.00) per share. The Shares will be issued in uncertificated
form. The Shares will be recorded in the name of the Participant in the books
and records of the Company's transfer agent. Upon vesting and the satisfaction
of all conditions set forth in Section 3(d), the Company shall cause
certificates representing the Shares to be issued to the Participant.
(c) Plan. The Award granted hereunder is subject to the terms and
provisions of the Plan, including without limitation, Article 11 thereof.
3. Restrictions.
(a) Forfeiture. Any Award which is not vested upon the Participant's
termination of employment shall thereupon be forfeited immediately and without
any further action by the Company. For purposes of this Agreement,
"Restrictions" shall mean the restrictions on sale or other transfer set forth
in Section 4 and the exposure to forfeiture set forth in this Section 3(a).
(b) Vesting and Lapse of Restrictions. Subject to Sections 3(a) and 3(c),
the Award shall vest and Restrictions shall lapse with respect to 1/3 of the
Shares subject to the Award (rounded down to the next whole number of shares) on
each of the first three anniversaries of the Award Date, provided in each case
that the Participant remains continuously in the service of the Company as an
Outside Director from the Award Date through such date.
(c) Acceleration of Vesting. Notwithstanding Sections 3(a) and 3(b): (i)
the Award shall become fully vested and all Restrictions applicable to such
award shall lapse in the event of a termination of employment resulting from a
Participant's disability or death; and (ii) the Award may, in the Committee's
sole and absolute discretion, become vested and all Restrictions on such award
shall lapse in accordance with Section 11.2 of the Plan. In connection with the
foregoing, the Committee may make such determinations and adopt such rules and
conditions as it, in its sole discretion, deems appropriate in connection with
such acceleration of vesting and lapse of applicable Restrictions, including,
but not limited to, provisions to ensure that any such acceleration of vesting
and lapse of Restrictions shall be conditioned upon the consummation of any
corporate transaction described in Sections 11.1 and 11.2 of the Plan.
(d) Tax Withholding; Conditions to Issuance of Certificates.
(i) Notwithstanding Section 2(b), no such new certificate shall be
delivered to the Participant or his legal representative unless and until the
Participant or his legal representative shall have paid to the Company the full
amount of all federal and state withholding or other taxes applicable to the
taxable income of Participant resulting from the grant of Restricted Stock or
the lapse or removal of the Restrictions.
(ii) Notwithstanding Section 2(b), the Company shall not be required to
issue or deliver any certificate or certificates for any Shares prior to the
fulfillment of all of the following conditions: (A) the admission of the Shares
to listing on all stock exchanges on which such Common Stock is then listed, (B)
the completion of any registration or other qualification of the Shares under
any state or federal law or under rulings or regulations of the SEC or other
governmental regulatory body, which the Committee shall, in its sole and
absolute discretion, deem necessary and advisable, (C) the obtaining of any
approval or other clearance from any state or federal governmental agency that
the Committee shall, in its absolute discretion, determine to be necessary or
advisable and (D) the lapse of any such reasonable period of time following the
date the Restrictions lapse as the Committee may from time to time establish for
reasons of administrative convenience.
(e) Section 83(b) Election. Participant understands that Section 83(a) of
the Code taxes as ordinary income the difference between the amount, if any,
paid for the shares of Common Stock and the Fair Market Value of such shares at
the time the Restrictions on such shares lapse. Participant understands that,
notwithstanding the preceding sentence, Participant may elect to be taxed at the
time of the Award Date, rather that at the time the Restrictions lapse, by
filing an election under Section 83(b) of the Code (an "83(b) Election") with
the Internal Revenue Service within 30 days of the Award Date. In the event
Participant files an 83(b) Election, Participant will recognize ordinary income
in an amount equal to the difference between the amount, if any, paid for the
shares of Common Stock and the Fair Market Value of such shares as of the Award
Date. Participant further understands that an additional copy of such 83(b)
Election form should be filed with his or her federal income tax return for the
calendar year in which the date of this Agreement falls. Participant
acknowledges that the foregoing is only a summary of the effect of United States
federal income taxation with respect to the award of Restricted Stock hereunder,
and does not purport to be complete. PARTICIPANT FURTHER ACKNOWLEDGES THAT THE
COMPANY IS NOT RESPONSIBLE FOR FILING THE PARTICIPANT'S 83(b) ELECTION, AND THE
COMPANY HAS DIRECTED PARTICIPANT TO SEEK INDEPENDENT ADVICE REGARDING THE
APPLICABLE PROVISIONS OF THE CODE, THE INCOME TAX LAWS OF ANY MUNICIPALITY,
STATE OR FOREIGN COUNTRY IN WHICH PARTICIPANT MAY RESIDE, AND THE TAX
CONSEQUENCES OF PARTICIPANT'S DEATH.
4. Restricted Stock Not Transferable. No Restricted Stock or any interest
or right therein or part thereof shall be liable for the debts, contracts or
engagements of the Participant or his successors in interest or shall be subject
to disposition by transfer, alienation, anticipation, pledge, encumbrance,
assignment or any other means whether such disposition be voluntary or
involuntary or by operation of law by judgment, levy, attachment, garnishment or
any other legal or equitable proceedings (including bankruptcy), and any
attempted disposition thereof shall be null and void and of no effect; provided,
however, that this Section 4 shall not prevent transfers by will or by
applicable laws of descent and distribution.
5. Rights as Stockholder. Except as otherwise provided herein, upon the
Award Date the Participant shall have all the rights of a stockholder with
respect to said shares, subject to the Restrictions herein, including the right
to vote the shares and to receive all dividends or other distributions paid or
made with respect to the shares of Restricted Stock; provided, however, that at
the discretion of the Company, and prior to the delivery of shares of Restricted
Stock, the Participant may be required to execute a stockholders agreement in
such form as shall be determined by the Company.
6. Not a Contract of Employment. Nothing in this Agreement or in the Plan
shall confer upon the Participant any right to continue in the employ of the
Company or any of its Subsidiaries or shall interfere with or restrict in any
way the rights of the Company or its Subsidiaries, which are hereby expressly
reserved, to discharge the Participant at any time for any reason whatsoever,
with or without cause, except as may otherwise be provided by any written
agreement entered into by and between the Company and the Participant.
7. Governing Law. The laws of the State of Delaware shall govern the
interpretation, validity, administration, enforcement and performance of the
terms of this Agreement regardless of the law that might be applied under
principles of conflicts of laws.
8. Conformity to Securities Laws. The Participant acknowledges that the
Plan and this Agreement are intended to conform to the extent necessary with all
provisions of the Securities Act of 1933, as amended, and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and any and all
regulations and rules promulgated thereunder by the Securities and Exchange
Commission, including without limitation Rule 16b-3 under the Exchange Act.
Notwithstanding anything herein to the contrary, the Plan shall be administered,
and the Awards are granted, only in such a manner as to conform to such laws,
rules and regulations. To the extent permitted by applicable law, the Plan and
this Agreement shall be deemed amended to the extent necessary to conform to
such laws, rules and regulations.
9. Amendment, Suspension and Termination. The Awards may be wholly or
partially amended or otherwise modified, suspended or terminated at any time or
from time to time by the Committee or the Board, provided, that, except as may
otherwise be provided by the Plan, neither the amendment, suspension nor
termination of this Agreement shall, without the consent of the Participant,
alter or impair any rights or obligations under any Award.
10. Notices. Notices required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery or upon
deposit in the United States mail by certified mail, with postage and fees
prepaid, addressed to the Participant to his address shown in the Company
records, and to the Company at its principal executive office.
* * * * *
The Participant represents that he has read this Agreement and the Plan and
is familiar with the terms and provisions of each. The Participant acknowledges
that the Award is issued pursuant to, and is subject to the terms and conditions
of, the Plan, and the Participant will be bound by the terms of the Plan as if
it were set forth verbatim in this Agreement. The Participant agrees to comply
with all rules the Company may establish with respect to the Plan. The
Participant agrees to accept as binding, conclusive and final all decisions or
interpretations of the Committee with respect to any questions arising under the
Plan or this Agreement. The Participant further acknowledges and agrees that
this Agreement (and the Plan) constitutes the entire agreement between the
parties with respect to the Award and that this Agreement (and the Plan)
supersedes any and all prior agreements, whether written or oral, between the
parties with respect to the Award.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by the
parties hereto as of the date first set forth above.
BOOKS-A-MILLION, INC. PARTICIPANT
By: ___________________________ _____________________
Name:
Title:
Residence Address:
XXXXXX0
XXXXXX0
XXXX, XXXXX ZIP
COUNTRY
Aggregate number of shares of
Restricted Stock subject to the
Award: __________
