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EXHIBIT 10(l)
THE XXXXX-XXXXXXX STORES CORP.
EQUITY AND PERFORMANCE INCENTIVE PLAN
DEFERRED SHARES AGREEMENT
WHEREAS, _____________ (the "Grantee") is an employee of The
Xxxxx-Xxxxxxx Stores Corp. (the "Corporation") or a Subsidiary;
WHEREAS, the Grantee has elected to defer a portion of his
Annual Incentive Award under the Corporation's Equity and Performance Incentive
Plan (the "Plan") pursuant to a deferral election filed with the Committee
("Deferral Election"); and
WHEREAS, the execution of a deferred shares agreement in the
form hereof (the "Agreement") has been authorized by a resolution of the Board
of Directors (the "Board") of the Corporation duly adopted on ____________,
1997;
NOW, THEREFORE, pursuant to the Plan, the Corporation awards, as
of _________________, 1997 (the "Date of Award"), to the Grantee Deferred Shares
("Shares"), each Share equal to one share of the Corporation's common stock, par
value $0.01 per share, subject to the terms and conditions of the Plan and the
following terms, conditions, limitations and restrictions:
1. ESTABLISHMENT OF ACCOUNT. The Corporation will establish an account
in the name of the Grantee on its books and records (the "Account") and credit
the Account with ________ Shares which may be exercised separately or in the
aggregate in accordance with the terms and conditions hereof.
2. VESTING OF SHARES. The Shares covered by this Agreement will be fully
vested at all times.
3. FORFEITURE OF SHARES. Notwithstanding the provisions of Section 2 of
this Agreement, the Committee may, in its sole discretion, require that, to the
extent the value of any of the Shares covered by this Agreement may not be
deducted by the Corporation, such Shares will be forfeited.
4. EXERCISE OF SHARES. Shares may be exercised by the Grantee on the
following basis:
(a) Upon the earliest of (i) the third anniversary of the Date
of Award, (ii) the termination of employment of the Grantee with the Corporation
and its Subsidiaries, for reasons other than death, or (iii) the death of the
Grantee, as designated by the Grantee in his Deferral
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Election, the Grantee, or his legal representative, if applicable, may exercise
all Shares then credited to his Account.
(b) In the event that the Committee, upon written petition of
the Grantee, determines, in its sole discretion, that the Grantee has suffered
an unforeseeable financial emergency, the Grantee will be permitted to exercise
the number of Shares in his Account necessary to meet the emergency. For
purposes of this Subsection, an "unforeseeable financial emergency" means an
unexpected need for cash arising from an illness, disability, casualty loss,
sudden financial reversal or other such unforeseeable occurrence. Cash needs
arising from foreseeable events such as the purchase of a house or education
expenses for children will not be considered to be the result of an
unforeseeable financial emergency.
5. PAYMENT UPON EXERCISE. The amount payable to the Grantee will be
equal to the Market Value per Share on the day of payment. Payment may be made
wholly in cash or wholly in Common Shares or partly in cash and partly in Common
Shares at the discretion of the Committee. Common Shares delivered pursuant to
this Section may be either treasury shares or authorized and unissued shares or
both.
6. DIVIDEND, VOTING AND OTHER RIGHTS. Prior to the delivery of the
Shares as described in Section 4, the Grantee will not have any voting rights or
the right to receive any dividends with respect to any Shares.
7. TRANSFERABILITY. The Shares may not be transferred except by will or
the laws of descent and distribution and may not be exercised during the
lifetime of the Grantee except by the Grantee or the Grantee's guardian or legal
representative acting on behalf of the Grantee in a fiduciary capacity under
state law and court supervision.
8. COMPLIANCE WITH LAW. The Corporation will make reasonable efforts to
comply with all applicable federal and state securities laws; provided, however,
notwithstanding any other provision of this Agreement, the Corporation will not
be obligated to issue any Common Shares pursuant to this Agreement if the
issuance thereof would result in a violation of any such law.
9. ADJUSTMENTS. The Committee may make any adjustments in the number of
Shares covered by this Agreement that the Committee, in its discretion exercised
in good faith, may determine is equitably required to prevent dilution or
enlargement of the Grantee's rights under this Agreement that otherwise would
result from (a) any stock dividend, stock split, combination of shares,
recapitalization or other change in the capital structure of the Corporation, or
(b) any merger, consolidation, spin-off, split-off, spin-out, split-up,
reorganization, partial or complete liquidation or other distribution of assets,
issuance of rights or warrants to purchase securities, or (c) any other
corporate transaction or event having an effect similar to any of the foregoing.
Moreover, in the event of any such transaction or event, the Committee, in its
discretion, may provide in substitution for any or all of the Grantee's rights
under this Agreement such alternative consideration as it, in good faith, may
determine to be equitable under the circumstances and may require in connection
therewith the surrender of all grants so replaced.
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10. WITHHOLDING. To the extent that the Corporation is required to
withhold federal, state, local or foreign taxes in connection with any award or
exercise of Shares pursuant to this Agreement, and the amounts available to the
Corporation for such withholding are insufficient, it will be a condition to the
receipt of any distribution hereunder that the Grantee make arrangements
satisfactory to the Corporation for payment of the balance of such taxes
required to be withheld. If necessary, the Committee may require relinquishment
of a portion of any Stock to be distributed hereunder.
11. EMPLOYMENT RIGHTS. The Plan and this Agreement will not confer upon
the Grantee any right with respect to the continuance of employment or other
service with the Corporation or any Subsidiary and do not interfere in any way
with any right that the Corporation or any Subsidiary otherwise has to terminate
any employment or other service of the Grantee at any time.
12. RELATION TO OTHER BENEFITS. Any economic or other benefit to the
Grantee under this Agreement will not be taken into account in determining any
benefits to which the Grantee may be entitled under any profit-sharing,
retirement or other benefit or compensation plan maintained by the Corporation
or a Subsidiary.
13. NOTICES. Any notice necessary under this Agreement must be addressed
to the Corporation or the Committee at the principal executive office of the
Corporation and to the Grantee at the address appearing in the personnel records
of the Corporation or a Subsidiary for such Grantee, or to either party at such
other address as either party may designate in writing to the other. Any such
notice will be deemed effective upon receipt thereof by the addressee.
14. AGREEMENT SUBJECT TO THE PLAN. The Shares granted under this
Agreement and all of the terms and conditions hereof are subject to all of the
terms and conditions of the Plan. In the event of any inconsistency between this
Agreement and the Plan, the terms of the Plan will govern.
15. AMENDMENTS. Any amendment to the Plan will be deemed to be an
amendment to this Agreement to the extent that the amendment is applicable
hereto; provided, however, that no amendment will adversely affect the rights of
the Grantee under this Agreement without the Grantee's consent.
16. SEVERABILITY. In the event that one or more of the provisions of
this Agreement is invalidated for any reason by a court of competent
jurisdiction, any provision so invalidated will be deemed to be separable from
the other provisions hereof, and the remaining provisions hereof will continue
to be valid and fully enforceable.
17. DEFINITIONS. (a) Except as otherwise provided in this Section, all
terms used herein with initial capital letters have the meanings assigned to
them in the Plan or in this Agreement.
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(b) "Beneficiary" means:
(i) The person last designated as Beneficiary by the
Grantee in a writing on a form prescribed by the Committee;
(ii) If there is no designated Beneficiary or if the
person so designated does not survive the Grantee, the Grantee's spouse;
or
(iii) If no such designated Beneficiary and no spouse
is living upon the death of the Grantee, or if all such persons die
prior to the full distribution of the Grantee's Account, then the legal
representative of the last survivor of the Grantee and such persons, or,
if the Committee does not receive notice of the appointment of any such
legal representative within one year after such death, the heirs-at-law
of such survivor will be the Beneficiaries to whom the then remaining
Account will be distributed (in the proportions in which they would
inherit his intestate personal property).
Any Beneficiary designation may be changed from time to time by
the filing of a new form. No notice given under this Subsection will be
effective unless and until the Committee actually receives such notice.
18. GOVERNING LAW. This Agreement will be construed and governed in
accordance with the laws of the State of Ohio.
This Agreement is executed on _______________, _____.
THE XXXXX-XXXXXXX STORES CORP.
By:
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The undersigned Grantee hereby acknowledges receipt of an
executed original of this Deferred Shares Agreement and accepts the right to
receive a distribution of such Shares subject to the terms and conditions of the
Plan and the terms and conditions hereinabove set forth.
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Grantee
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