RESTRICTED STOCK GRANT AGREEMENT PURSUANT TO BURLINGTON COAT FACTORY HOLDINGS, INC.
Exhibit
10.4
PURSUANT
TO BURLINGTON COAT FACTORY HOLDINGS, INC.
2006
MANAGEMENT INCENTIVE PLAN
THIS
AGREEMENT (the “Agreement”) is entered into as of ________, 2009 between
Burlington Coat Factory Holdings, Inc., a Delaware corporation (the “Company”),
and [____] (the “Participant”). Capitalized terms not otherwise
defined herein shall have the meaning set forth in the Burlington Coat Factory
Holdings, Inc. 2006 Management Incentive Plan (the “Plan”).
Recitals
WHEREAS,
the Participant is an employee of Burlington Coat Factory Warehouse Corporation,
a subsidiary of the Company (the “Subsidiary”);
WHEREAS,
the Company has adopted the 2006 Management Incentive Plan (the “Plan”)
providing for the grant under certain circumstances of certain equity incentive
awards, including shares of Restricted Stock;
WHEREAS,
the Company, under the terms and conditions set forth below, desires to grant
Participant an Award of Restricted Stock (the “Award”) pursuant to the terms set
forth in the Plan; and
WHEREAS,
in consideration of the grant of the Award and other benefits, the Participant
is willing to accept the Award provided for in this Agreement and is willing to
abide by the obligations imposed on him under this Agreement and the
Plan.
Provisions
NOW,
THEREFORE, in consideration of the mutual benefits hereinafter provided, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties, the Company and the Participant, intending
to be legally bound, hereby agree as follows:
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1.
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Restricted Stock
Award. The Company hereby grants to the Participant,
subject to the terms and conditions set forth or incorporated herein, an
Award consisting of a total of [_] shares of Class A
Common and [_]
shares of Class L Common, subject to adjustment under the Plan (the
“Shares”). For the purposes hereof, each Nine (9) shares of
Class A Common Stock and One (1) share of Class L Common Stock shall
constitute a “Unit.” Upon the execution and delivery of this
Agreement, the Company will, subject to Section 6 below, issue to the Participant the
Shares granted hereunder, and such Shares shall constitute Restricted
Stock pursuant to the Plan.
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2.
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Effect of the
Plan. The Award granted under this Agreement is subject
to all of the terms and conditions of the Plan, which are incorporated by
reference and made a part of this Agreement. The Participant
will abide by, and the Award granted to the Participant will be subject
to, all of the provisions of the Plan and of this Agreement, together with
all rules and determinations from time to time issued by the Committee
established to administer the Plan.
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3.
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Restriction
Period. The restriction period applicable to the Award
granted hereunder is as follows:
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(a)
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All
Shares shall be unvested at issuance. Subject to Section 3(b)
below, (i) 50% of the Shares shall vest on the second anniversary date of
this Agreement (or the following
business day if such date is not a business day) if the Participant
remains continuously employed by the Company on such date and (ii) 50% of
the Shares shall vest on the third anniversary date of this Agreement (or the following
business day if such date is not a business day) if the Participant
remains continuously employed by the Company on such date; provided, that
100% of the Shares shall vest if Participant’s employment is earlier
terminated as a result of the Participant’s death or
Disability.
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(b)
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Following
a “Change of Control” (as defined in the Stockholders Agreement”), vesting
of unvested Shares shall not accelerate by reason of such Change of
Control; provided, however, that 100% of the Shares shall vest if,
following a Change of Control, the employment of the Participant is
terminated by the Company or by the Subsidiary without Cause, or the
Participant resigns with Good
Reason.
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(c)
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All
unvested Shares shall automatically be forfeited (and shall not vest) if
the Participant’s employment with the Company shall terminate for any
reason (other than as provided in Section 3(b) above in the case of
termination by the Company without Cause or by the Participant for Good
Reason following a Change in Control) prior to the earlier of the date on
which they otherwise would have vested pursuant to Section 3(a)
above.
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(d)
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All
vested Shares shall be subject to the call options described in Section 5
of the Stockholders Agreement.
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(e)
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Participant
shall be entitled to receipt of all dividends paid by the Company on its
Shares, as and when such dividends are declared and paid to holders of
Shares; provided, any dividends on unvested Shares shall be held and paid
to Participant within 10 days after the vesting of such Shares after
becoming vested.
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4.
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Stockholders
Agreement. As a condition to the issuance of any Shares
hereunder, Participant shall agree in writing (in form and substance
reasonably satisfactory to the Company) to become a party to, and be bound
by, the terms of the Stockholders
Agreement.
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5.
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Withholding
Taxes. The Administrator may make such provision for any
applicable federal or state the withholding obligations of the Company
pursuant to Section 6(a)(4) of the Plan. In addition, at least
sixty (60) days prior to the time of vesting of any Units granted under
this Agreement, the Company will give notice thereof to the
Participant. Participant shall deliver to the Company an amount
in cash sufficient to satisfy all United States federal, state and local
and non-United States tax of any kind (including Participant’s FICA and
SDI obligations) which the Board, in its sole discretion, deems necessary
to be withheld or remitted with respect to the Units in order to comply
with the U.S. Internal Revenue Code of 1986, as amended, and/or any other
applicable law, rule or regulation (the “Minimum Withholding
Tax”). Alternatively, at the Participant’s election,
exercisable on or before ten (10) days prior to the date of vesting of
such Units, the Company shall have the right and power to deduct or
withhold a number of Units having a fair market value (as determined by
the Board of Directors of the Company as of the date of vesting thereof)
equal to the Minimum Withholding Tax plus any additional tax due with
respect to the Units becoming vested (up to a maximum of forty percent
(40%) aggregate tax); provided, however, that such option to shall be
deemed to have been exercised in the case of accelerated vesting pursuant
to Section 3(a) in the case of Participant’s death or Disability or
pursuant to Section 3(b) in the case of termination of Participant’s
employment by the Company or the Subsidiary or by the Participant for Good
Reason following a Change of Control. Participant shall remain
responsible for the payment of any remaining taxes payable on account of
the vesting of Units.
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6.
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Delivery of
Stock. Certificates representing Shares granted pursuant
to this Agreement will be held in escrow by the Company on the
Participant’s behalf during any period of restriction thereon and will bear an
appropriate legend specifying the applicable restrictions
thereon. Whenever Shares subject to the Award are released from
restriction, the Company shall issue a
certificate to Participant for such unrestricted Shares. The
Company shall follow all requisite procedures to deliver such certificate
to Participant; provided, however, that such delivery may be postponed to
enable the Company to comply with applicable procedures, regulations or
listing requirements of any governmental agency, stock exchange or
regulatory agency.
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7.
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Transferability of
Award. This Award may only be transferred by will, and
by the laws of descent and distribution (and in connection therewith, such
transferees must agree in writing (in form and substance reasonably
satisfactory to the Company) to become a party to, and be bound by, the
Stockholders Agreement). The terms of this Award, including the
restriction and vesting provisions set forth in Section 3, shall be binding upon the
executors, administrators, successors and assigns of the
Participant.
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8.
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Adjustment Upon
Changes in Shares. In the event of a change in the
Company’s capital structure, the adjustments provided for in Section 7(b)
of the Plan shall be made to the number of Shares subject to the Award
hereunder.
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9.
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Section 83(b)
Election. Participant agrees to inform the Company
promptly, and provide a copy of the election filed by the Participant with
the Internal Revenue Service, if the Participant makes an election under
Section 83(b) of the Code to treat any portion of this Award as taxable
compensation prior to the time the restrictions are removed from the
Shares subject to this Award.
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10.
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Amendments;
Termination of Plan. The Administrator may amend this
Award or terminate the Plan in accordance with Section 9 of the
Plan.
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11.
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Interpretation. Any
dispute regarding the interpretation of this Award shall be submitted by
Participant or the Company to the Administrator, which shall review such
dispute at its next regular meeting. The resolution of such a dispute by
the Administrator shall be final and binding on the Company and on the
Participant.
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12.
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Notices. All
notices to the Company must be in writing, addressed and delivered or
mailed to 0000 Xxxxx 000, Xxxxxxxxxx, XX 00000, Attention: General
Counsel, with copies, which shall not constitute notice, to Xxxx Capital
Partners, LLC, 000 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000,
Attention: Jordan Hitch, and Xxxxxxxx & Xxxxx LLP, 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Xxxx Xxxxx,
Esq. All notices to the Participant must be in writing
addressed and delivered or mailed to him at the address shown on the
records of the Company.
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13.
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Governing
Law. This Agreement, and all determinations made and
actions taken pursuant thereto, shall be governed under the laws of the
State of Delaware.
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14.
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Severability. If
any part of this Agreement shall be determined to be invalid or
unenforceable, such part shall be ineffective only to the extent of such
invalidity or unenforceability, without affecting the remaining portions
hereof.
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[Remainder
of page intentionally left blank.]
[Signature
page follows.]
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
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BURLINGTON
COAT FACTORY HOLDINGS, INC.
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By:
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Name:
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Title:
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ACCEPTANCE
Participant
hereby acknowledges receipt of a copy of the Plan, represents that Participant
has read and understands the terms and provisions thereof, and accepts this
Award subject to all the terms and conditions of the Plan and this
Agreement. Participant acknowledges that there may be adverse tax
consequences associated with this Award or disposition of the Shares associated
with this Award and that Participant should consult a tax adviser.
__________________________________
Participant
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