BOOKS-A-MILLION, INC. RESTRICTED STOCK AGREEMENT
THIS AGREEMENT, dated June 29, 2005 (the "Award Date"), is
made between Books-A-Million, Inc., a Delaware corporation hereinafter referred
to as the "Company," and ______________, an employee of the Company or a
Subsidiary 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 remain in
the employ of the Company, and for other good and valuable consideration which
the 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 100% of
the Shares subject to the Award (rounded down to the next whole number of
shares) on January 30, 2010, provided in each case that the Participant remains
continuously employed in active service by the Company 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: __________
