RESTRICTED STOCK AGREEMENT PURSUANT TO THE MAIDENFORM BRANDS, INC. 2005 STOCK INCENTIVE PLAN
PURSUANT
TO THE
MAIDENFORM
BRANDS, INC. 2005 STOCK INCENTIVE PLAN
THIS
AGREEMENT (the
“Agreement”), made as of
the __ day of __________, 2009, by and between Maidenform Brands, Inc.(the
“Company”) and ___________ (the “Participant”).
WITNESSETH:
WHEREAS, the Company has
adopted the Maidenform Brands, Inc. 2005 Stock Incentive Plan (the “Plan”), a
copy of which has been delivered to the Participant, which is administered by a
committee appointed by the Company’s Board of Directors (the
“Committee”);
WHEREAS, pursuant to Section
8.1 of the Plan, the Committee may grant to Non-Employee Directors shares of
common stock of the Company, par value $0.01 per share (“Common Stock” or the
“Shares”) in the amount set forth below;
WHEREAS, the Participant is a
Non-Employee Director under the Plan; and
WHEREAS, such Shares are to be
subject to certain restrictions.
NOW, THEREFORE, for and in
consideration of the mutual promises herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1.
Grant of
Shares. Subject to the
restrictions, terms and conditions of this Agreement, effective as of
___________, 2009 (the “Grant Date”) the Company hereby awards to the
Participant [_________] shares of validly issued Common Stock. If the
Participant is a new director, to the extent required by law, the Participant
shall pay the Company the par value ($0.01) for each Share awarded to the
Participant simultaneously with the execution of this Agreement. If
the Participant is a continuing director, the grant of this Award shall be
deemed a bonus in consideration of past services to the extent of the aggregate
par value of the Shares so awarded. Pursuant to Section 2
hereof, the Shares are subject to certain restrictions, which restrictions
relate to the passage of time as a service provider of the Company or its
Affiliates. While such restrictions are in effect, the Shares subject
to such restrictions shall be referred to herein as “Restricted
Stock.”
2. Restrictions
on Transfer. The Participant
shall not sell, transfer, pledge, hypothecate, assign or otherwise dispose of
the Shares, except as set forth in the Plan or Agreement. Any
attempted sale, transfer, pledge, hypothecation, assignment or other disposition
of the Shares in violation of the Plan or 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.
(a) Retention
of Certificates. Promptly after
the date of this Agreement, the Company shall issue stock certificates
representing the Restricted Stock unless it elects to recognize such ownership
through uncertificated book entry or another similar method pursuant to Section
8 herein. The stock certificates shall be registered in the
Participant’s name and shall bear any legend required under the Plan or Section
4 of this Agreement. Such stock certificates shall be held in custody
by the Company (or its designated agent) until the restrictions thereon shall
have lapsed. Upon the Company’s request, the Participant shall
deliver to the Company a duly signed stock power, endorsed in blank, relating to
the Restricted Stock.
(b) Rights
with Regard to Restricted Stock. The Participant
will have the right to vote the Restricted Stock, to receive and retain any
dividends payable to holders of Shares of record on and after the transfer of
the Restricted Stock (although such dividends shall be treated, to the extent
required by applicable 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 set forth in the
Plan, with the exceptions that: (i) the Participant will not be
entitled to delivery of the stock certificate or certificates representing the
Restricted Stock until the Restriction Period shall have expired; (ii) the
Company (or its designated agent) will retain custody of the stock certificate
or certificates representing the Restricted Stock and the other RS Property (as
defined below) during the Restriction Period; (iii) no RS Property shall
bear interest or be segregated in separate accounts during the Restriction
Period; (iv) any RS Property will be subject to the restrictions provided
in Sections 3(c), 3(d) and 3(e); and (v) the Participant may not sell,
assign, transfer, pledge, exchange, encumber or dispose of the Restricted Stock
during the Restriction Period.
(c) Treatment
of Dividends and Other RS Property. In the event the Participant
receives a dividend on the Restricted Stock or the Shares of Restricted Stock
are split or the Participant receives any other shares, securities, moneys or
property representing a dividend on the Restricted Stock 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 Participant in respect of the
Restricted Stock (collectively “RS Property”), the Participant will also
immediately deposit with and deliver to the 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 those of Sections 3(d) and 3(e),
as the Restricted Stock with regard to which they are issued and shall herein be
encompassed within the term “Restricted Stock.” Unless otherwise
determined by the Committee, any RS Property issued in the form of cash will not
be reinvested in Shares and will be held uninvested and without interest until
delivered to the Participant within 30 days of the end of the Restriction Period
as determined by the Committee, if the related Restricted Stock becomes
vested.
(d) Vesting.
(i) The
Restricted Stock granted pursuant to Section 1 above shall vest and cease to be
Restricted Stock (but shall remain subject to Section 5 of this Agreement) in
equal annual installments on each of the first three anniversaries of the Grant
Date (i.e., one third per year), provided that the Participant has not incurred
a Termination prior to the applicable vesting date.
(ii) There
shall be no proportionate or partial vesting in the periods prior to the vesting
date and all vesting shall occur only on the vesting date; provided that no
Termination has occurred prior to such date.
(iii) In
the event of a Termination upon a failure to be re-elected (other than for
Cause) or for death or Disability in each case prior to the fourth anniversary
of the date of grant (each, an “Acceleration Event”), then any remaining
unvested Restricted Stock that would have vested if the Participant’s service
had continued for an additional twelve (12) months shall become vested on the
date of such Acceleration Event and cease to be Restricted Stock (but shall
remain subject to Section 5 of the Agreement).
(iv) The
Shares of Restricted Stock will become fully vested on a Change in
Control.
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(v) When
any Shares of Restricted Stock become vested, the Company shall promptly issue
and deliver, unless the Company is using book entry, to the Participant a new
stock certificate registered in the name of the Participant for such Shares
without the legend set forth in Section 4 hereof and deliver to the Participant
any related other RS Property, subject to applicable withholding.
(e) Forfeiture. The Participant
shall forfeit to the Company, without compensation, other than repayment of any
par value paid in cash by the Participant for such Shares, any and all unvested
Restricted Shares upon the Participant’s Termination for any reason (except as
provided in Section 3(d)(iii)). Additionally, in the event the Participant
engages in Detrimental Activity (except as set forth in (d) of such definition)
prior to, or during the one year period after, any vesting of Restricted Stock,
the Committee may direct that all unvested Restricted Stock shall be immediately
forfeited to the Company and the Participant shall pay to the Company an amount
equal to the Fair Market Value at the time of vesting of any Restricted Stock
which had vested in the period referred to above.
(f) Withholding. The Participant
shall be solely responsible for all applicable foreign, federal, state,
provincial and local taxes with respect to the Restricted Stock; provided,
however, that at any time the Company is required to withhold any such taxes,
the Participant shall pay, or make arrangements to pay, in a manner satisfactory
to the Company, an amount equal to the amount of all applicable foreign,
federal, state, provincial and local taxes that the Company is required to
withhold at any time. In the absence of such arrangements, any
statutorily required withholding obligation may, as determined at the sole
discretion of the Committee, be satisfied by delivery to the Company of Shares
of Common Stock issuable under this Agreement equal to the statutorily required
withholding obligation.
(g) Section
83(b). If the
Participant properly elects (as permitted by Section 83(b) of the Code) within
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 Shares of Restricted Stock, the Participant 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 the Restricted Stock. The Participant acknowledges that it is his
or her sole responsibility, and not the Company’s, to file timely and properly
the election under Section 83(b) of the Code and any corresponding provisions of
state tax laws if he or she elects to utilize such election.
(h) Delivery
Delay. The delivery of
any certificate representing the 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 foreign, federal, state or provincial securities law, or any
national securities exchange listing requirements and the Company is not
obligated to issue or deliver any securities if, in the opinion of counsel for
the Company, the issuance of such Shares shall constitute a violation by the
Participant or the Company of any provisions of any applicable foreign, federal,
state or provincial law or of any regulations of any governmental authority or
any national securities exchange.
4.
Legend. All certificates
representing the Restricted Stock shall have endorsed thereon the following
legends:
(a)
“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 Maidenform Brands, Inc. 2005 Stock Incentive Plan (the
“Plan”) and an Award Agreement (“Award Agreement”) entered into between the
registered owner and the Company. Copies of such Plan and Award
Agreement are on file at the principal office of the Company.”
(b)
Any legend required to be placed thereon by applicable blue
sky laws of any state.
Notwithstanding
the foregoing, in no event shall the Company be obligated to deliver a
certificate representing the Restricted Stock prior to the vesting date set
forth above.
5.
Securities
Representations. The Shares are
being issued to the Participant and this Agreement is being made by the Company
in reliance upon the following express representations and warranties of the
Participant.
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The
Participant acknowledges, represents and warrants that:
(a) He
or she has been advised that he or she may be an “affiliate” within the meaning
of Rule 144 under the Securities Act of 1933, as amended (the “Act”), currently
or at the time he or she desires to sell the Shares following the vesting of the
Restricted Stock, and in this connection the Company is relying in part on his
or her representations set forth in this section.
(b) If
he or she is deemed an affiliate within the meaning of Rule 144 of the Act, the
Shares must be held indefinitely unless an exemption from any applicable resale
restrictions is available or the Company files an additional registration
statement (or a “re-offer prospectus”) with regard to such Shares and the
Company is under no obligation to register the Shares (or to file a “re-offer
prospectus”).
(c) If
he or she is deemed an affiliate within the meaning of Rule 144 of the Act, he
or she understands that the exemption from registration under Rule 144 will not
be available unless (i) a public trading market then exists for the Common Stock
of the Company, (ii) adequate information concerning the Company is then
available to the public, and (iii) other terms and conditions of Rule 144 or any
exemption therefrom are complied with; and that any sale of the Shares may be
made only in limited amounts in accordance with such terms and
conditions.
6.
No
Obligation to Continue Service. This Agreement is
not an agreement of employment or consulting services. This Agreement
does not guarantee that the Company or its Affiliates will retain, or continue
to retain the Participant as a director or in any other capacity 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, nor does it
modify in any respect the Company or its Affiliate’s right to terminate or
modify the Participant’s service or compensation.
7.
Power of
Attorney. The Company, its
successors and assigns, is hereby appointed the attorney-in-fact, with full
power of substitution, of the Participant 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
Participant, may in the name and stead of the Participant, make and execute all
conveyances, assignments and transfers of the Restricted Stock, Shares and
property provided for herein, and the Participant hereby ratifies and confirms
all that the Company, as said attorney-in-fact, shall do by virtue
hereof. Nevertheless, the Participant 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.
8.
Uncertificated
Shares. Notwithstanding
anything else herein, to the extent permitted under applicable foreign, federal,
state or provincial law, the Committee may, issue the Shares in the form of
uncertificated shares. Such uncertificated shares of Restricted Stock
shall be credited to a book entry account maintained by the Company (or its
designee) on behalf of the Participant. If thereafter certificates
are issued with respect to the uncertificated shares of Restricted Stock, such
issuance and delivery of certificates shall be in accordance with the applicable
terms of this Agreement.
9.
Rights as
a Stockholder. The Participant
shall have all rights of a stockholder with respect to any Shares covered by the
Restricted Stock, except with respect to the right to Transfer any Shares
covered by the Restricted Stock during the Restriction Period or except as
otherwise specifically provided for in this Agreement or the Plan.
10. Provisions
of Plan Control. This Agreement is
subject to all the terms, conditions and provisions of the Plan, including,
without limitation, the amendment provisions thereof, and to such rules,
regulations and interpretations relating to the Plan as may be adopted by the
Committee and as may be in effect from time to time. The Plan is
incorporated herein by reference. By signing and returning this
Agreement, the Participant acknowledges having received and read a copy of the
Plan and agrees to comply with it, this Agreement and all applicable laws and
regulations. Capitalized terms in this Agreement that are not
otherwise defined shall have the same meaning as set forth in the
Plan. If and to the extent that this Agreement conflicts or is
inconsistent with the terms, conditions and provisions of the Plan, the
Plan shall control, and this Agreement shall be deemed to be modified
accordingly. This Agreement contains the entire understanding of the
parties with respect to the subject matter hereof and supersedes any prior
agreements between the Company and the Participant with respect to the subject
matter hereof.
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11. Amendment. To the extent
applicable, the Board or the Committee may at any time and from time to time
amend, in whole or in part, any or all of the provisions of this Agreement to
comply with Section 409A of the Code and the regulations thereunder or any other
applicable law and may also amend, suspend or terminate this Agreement subject
to the terms of the Plan. Except as otherwise provided in the Plan, no
modification or waiver of any of the provisions of this Agreement shall be
effective unless in writing by the party against whom it is sought to be
enforced. The award of Restricted Stock pursuant to this Agreement is not
intended to be considered “deferred compensation” for purposes of Section 409A
of the Code. With respect to any dividends and other RS Property, however,
this Agreement is intended to comply with the applicable requirements of Section
409A of the Code relating to “short-term deferrals” thereunder, and shall be
limited, construed and interpreted in a manner so as to comply
therewith.
12. Notices. Any notice or
communication given hereunder shall be in writing and shall be deemed to have
been duly given when delivered in person, or by regular United States mail,
first class and prepaid, to the appropriate party at the address set forth below
(or such other address as the party shall from time to time
specify):
If to the
Company, to:
000X XX
Xxx 0 Xxxxx
Xxxxxx,
XX 00000
Attention: General
Counsel
If to the
Participant, to the address on file with the Company.
13. Acceptance. As required by
Section 8.2(a) of the Plan, the Participant must accept this award of Restricted
Stock by executing this Agreement within a period of 60 days from the date the
Participant receives this Agreement (or such other period as the Committee shall
provide). In the event that the Restricted Stock is not accepted
within such time period, this Agreement shall be null and void ab initio and
this award of Restricted Stock shall not be valid.
14. Miscellaneous.
(a) This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective heirs, legal representatives, successors and
assigns.
(b) This
Agreement shall be governed and construed in accordance with the laws of
Delaware (regardless of the law that might otherwise govern under applicable
Delaware principles of conflict of laws).
(c) This
Agreement may be executed in one or more counterparts, all of which taken
together shall constitute one contract.
(d) 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.
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IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed as of the day and
year first above written.
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