STAGE STORES, INC. STOCK APPRECIATION RIGHTS AGREEMENT
EXHIBIT
10.4
STAGE
STORES, INC.
THIS STOCK APPRECIATION RIGHTS
AGREEMENT (the “Agreement”) is made effective as of the __________ day of
___________, 20___ (the “Effective Date”), by and between STAGE STORES, INC., a Nevada
corporation (hereinafter called the “Company”), and ___________________, an
employee of the Company, its subsidiaries or its affiliates (hereinafter called
the “Employee”).
WHEREAS, the Board of
Directors of the Company (the “Board”) has adopted the Stage Stores, Inc.
Amended and Restated 2001 Equity Incentive Plan (the “Plan”); and
WHEREAS, the Company considers
it desirable and in the Company’s best interests that the Employee be given an
opportunity to acquire Common Shares in furtherance of the Plan to provide
incentive for the Employee to remain an employee of the Company, its
subsidiaries or its affiliates and to promote the growth, earnings and success
of the Company.
NOW, THEREFORE, in
consideration of the premises, it is agreed as follows:
1. GRANT
OF SARS. The Company hereby grants to the Employee
stock appreciation rights with respect to a total of _____________ (_____)
Common Shares (the “SARs”), in the manner and subject to the conditions as
hereinafter provided. For purposes of this Agreement, “Common Shares”
shall mean the Company’s presently authorized voting common stock, par value
$0.01.
2. XXXXX XXXXX. The
Xxxxx Xxxxx for the SARs shall be $_______ per Common Share (the
“Xxxxx Xxxxx”), which is the Fair Market Value (as defined below) of a
Common Share on the date of grant. For purposes of this Agreement,
Fair Market Value means the closing price on that date, or on the next business
day if that date is not a business day, of a Common Share as the price is
reported on the applicable exchange or market on which the Common Shares are
traded; provided that, if the Common Shares shall not be reported on an exchange
or market, the fair market value of Common Shares shall be as determined in good
faith by the Board in such reasonable manner as it may deem appropriate in
accordance with applicable law.
3. TERM,
VESTING AND LIMITATION
ON EXERCISE. The SARs may be exercised during a period
of seven (7) years from the Effective Date of this Agreement (the
“Term”). The SARs may not be exercised after the expiration of the
Term. The SARs shall vest and become exercisable by the Employee
according to the following schedule:
|
Period from Date of
Grant
|
Cumulative
Percentage of SARs Which
May Be
Exercised
|
|
1
year
|
25%
|
|
2
years
|
50%
|
|
3
years
|
75%
|
|
4
years
|
100%
|
Notwithstanding
the above, in the event of a Change of Control (as defined in Section 23 of
this Agreement), all SARs granted under this Agreement shall immediately vest
and be exercisable by Employee.
4. EXERCISE
OF SARS. To exercise the SARs, the Employee or his or
her successor shall give written notice to the Company’s Treasurer at the
Company’s principal office of the number of SARs to be exercised and the date of
such exercise (the “Exercise Date”). If the SARs are exercised by the
successor of the Employee following the Employee’s death, proof shall be
submitted, satisfactory to the Company, of the right of the successor to
exercise the SARs. The SARs may only be exercised to the extent such
SARs are vested under this Agreement.
Upon
exercise of SARs, the Employee shall be entitled to that number of Common Shares
having an aggregate Fair Market Value, as of the Exercise Date, equal to the
excess of (a) the Fair Market Value, as of the Exercise Date, of a Common
Share over (b) the Xxxxx Xxxxx, multiplied by the total number of SARs
being exercised. SARs may be exercised only with respect to full
Common Shares, and no fractional Common Shares shall be issued under this
Agreement. In no event may a SAR be settled under this Agreement in
cash. This Agreement does not include any features allowing the
Employee to defer recognition of income past the Exercise Date.
5. ISSUANCE
OF COMMON SHARES. Prior
to issuance of Common Shares under this Agreement, Employee must provide the
Company with a written statement that the Common Shares are being acquired for
investment and not with a view to distribution; however, this statement shall
not be required if the Common Shares subject to the SARs are registered with the
Securities and Exchange Commission. Common Shares issued pursuant to
this Agreement which have not been registered with the Securities and Exchange
Commission shall bear the following legend:
The
Securities represented by this Certificate have not been registered under the
United States Securities Act of 1933 (the “Act”) and are “restricted securities”
as that term is defined in Rule 144 under the Act. The Securities may
not be offered for sale, sold or otherwise transferred except pursuant to an
effective registration statement under the Act, or pursuant to an exemption from
registration under the Act, the availability of which is to be established to
the satisfaction of the Company.
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The
Company shall not be required to transfer or deliver any certificate or
certificates for Common Shares acquired upon any exercise of SARs until
after compliance with all then applicable requirements of law.
6. DEATH
OF EMPLOYEE. Upon the death of the Employee, the SARs
shall vest and may be exercised by the Employee’s estate, or by a person who
acquires the right to exercise the SARs by bequest or inheritance or by reason
of the death of the Employee, provided that the exercise occurs within the
remaining Term, but in no event more than one (1) year after the date of the
Employee’s death. Any portion of the SARs not exercised within such
1-year period shall terminate. The provisions of this Section 6
shall apply notwithstanding the fact that the Employee’s employment may have
been terminated prior to his or her death, but only to the extent of the portion
of the SARs exercisable by the Employee on the date of his or her
death.
7. RETIREMENT
OR DISABILITY
OF EMPLOYEE. Upon the termination of the Employee’s
employment with the Company by reason of the retirement or Disability of the
Employee, the SARs shall vest and the Employee may, within one (1) year from the
date of the termination, exercise the SARs, provided that the exercise occurs
within the remaining Term. Any portion of the SARs not exercised
within the earlier of such 1-year period or the Term shall
terminate. For purposes of this Agreement, the determination of
whether the Employee’s termination is due to retirement shall be made by the
Committee in its sole and absolute discretion.
8. OTHER
TERMINATION OF EMPLOYMENT. Upon the termination of the
Employee’s employment with the Company other than as provided in Sections 6 and
7 above, the Employee may, within sixty (60) days from the date of the
termination, exercise the SARs to the extent the SARs was exercisable on the
date of the termination of Employee’s employment with the Company, provided that
the exercise occurs within the remaining Term. Any portion of the
SARs not exercised within such 60-day period shall terminate.
9. GENERAL
RESTRICTIONS. The SARs shall be subject to the
requirement that, if at any time the Board shall determine that (i) the
listing, registration or qualification of the shares of Common Shares subject or
related thereto upon any securities exchange or under any state or Federal law,
(ii) the consent or approval of any government regulatory body, or
(iii) an agreement by the Employee with respect to the disposition of
Common Shares is necessary or desirable as a condition of, or in connection
with, the granting of the SARs or the issue of Common Shares thereunder, the
granting of the SARs or the issue of the Common Shares may not be consummated in
whole or in part unless the listing, registration, qualification, consent,
approval or agreement shall have been effected or obtained free of any
conditions not acceptable to the Board.
10. ASSIGNMENT. The
rights under this Agreement shall not be assignable or transferable by the
Employee, except by will or by the laws of descent and
distribution. Any attempted assignment, transfer, pledge,
hypothecation, or other disposition of the rights under this Agreement contrary
to the provisions hereof shall be null and void and without
effect. During the lifetime of the Employee, any right under this
Agreement shall be exercisable only by the Employee or his or her guardian or
legal representative.
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11. WITHHOLDING
TAXES. Whenever the Company proposes or is required to
issue or transfer Common Shares under this Agreement, the Company shall have the
right to require the Employee to remit to the Company an amount sufficient to
satisfy any Federal, state and/or local withholding tax requirements prior to
the delivery of any certificate or certificates for the Common
Shares. Alternatively, the Company may issue or transfer the Common
Shares net of the number of shares sufficient to satisfy the statutory minimum
withholding tax requirements. For withholding tax purposes, the
Common Shares shall be valued on the date the withholding obligation is
incurred.
12. RIGHT
TO TERMINATE EMPLOYMENT. Nothing in this Agreement
shall confer upon the Employee the right to continue in the employment of the
Company, its subsidiaries or its affiliates or affect any right which the
Company, its subsidiaries or its affiliates may have to terminate the employment
of the Employee.
13. RIGHTS
AS A SHAREHOLDER. Neither the Employee, his or her
legal representative, nor other persons entitled to exercise the SARs under this
Agreement shall have any rights of a shareholder in the Company with respect to
the shares issuable upon exercise of the SARs unless and until a certificate or
certificates representing the Common Shares shall have been issued to him or her
pursuant to the terms hereof.
14. ADJUSTMENTS. In
the event of any change in the outstanding common stock of the Company by reason
of stock splits, reverse stock splits, stock dividends or distributions,
recapitalization, reorganization, merger, consolidation, split-up, combination,
exchange of shares or the like, the Board shall make an equitable adjustment to
the number of Common Shares issued under this Agreement and the
Xxxxx Xxxxx.
15. STOCK
RESERVED. The Company shall at all times during the
term of this Agreement reserve and keep available the number of Common Shares as
will be sufficient to satisfy the terms of this Agreement.
16. SEVERABILITY. Every
part, term or provision of this Agreement is severable from the
others. Notwithstanding any possible future finding by a duly
constituted authority that a particular part, term or provision is invalid, void
or unenforceable, this Agreement has been made with the clear intention that the
validity and enforceability of the remaining parts, terms and provisions shall
not be affected thereby.
17. NOTICE. Any
notice to be delivered under this Agreement shall be given in writing and
delivered, personally or by certified mail, postage prepaid, addressed to the
Company or the Employee at their last known address.
18. GOVERNING
LAW. This Agreement shall be construed in accordance
with and governed by the applicable Federal law and, to the extent otherwise
applicable, the laws of the State of Nevada.
19. HEADINGS. The
headings in this Agreement are for convenience only and shall not be used to
interpret or construe the provisions.
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20. BINDING
EFFECT. This Agreement shall be binding upon and inure
to the benefit of any successor or successors of the Company.
21. INCORPORATION
OF PLAN. The SARs are granted pursuant to the terms of
the Plan, which is incorporated herein by reference, and the SARs shall in all
respects be interpreted in accordance with the Plan. Any capitalized
term not otherwise defined in this Agreement shall have the meaning as defined
in the Plan.
22. CHANGE
OF CONTROL. In the event of a Change of Control, all
SARs granted under this Agreement shall immediately vest and be exercisable by
Employee. For purposes of this Agreement, a “Change of Control” shall
be deemed to have occurred if (i) any “person” or “group” (as such terms
are used in Section 13(b) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”)) is or becomes the “beneficial owner” (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 50% or more of the combined voting power
of the Company’s then outstanding securities and within one (1) year after such
“person” or “group” acquires 50% or more of the combined voting power of the
Company (the “Trigger Date”) the members of the Board immediately prior to the
Trigger Date cease to constitute a majority of the Board, (ii) there shall
be consummated any consolidation or merger of the Company in which the Company
is not the surviving or continuing corporation or pursuant to which shares of
the Company’s Common Shares would be converted into cash, securities or other
property, other than a merger of the Company in which the holders of the
Company’s Common Shares immediately prior to the merger have (directly or
indirectly) at least a 51% ownership interest in the outstanding Common Shares
of the surviving corporation immediately after the merger, or (iii) any
sale, lease, exchange or other transfer (in one transaction or a series of
related transactions) of all, or substantially all, of the assets of the
Company, except for any sale, lease exchange or transfer resulting from any
action taken by any creditor of the Company in enforcing its rights or remedies
against any assets of the Company in which such creditor holds a security
interest.
23. MODIFICATION. This
Agreement is intended to comply with the provisions of Section 409A of the
Internal Revenue Code, as amended (the “Code”). The Company may
change or modify the terms of this Agreement, including, without limitation, the
Xxxxx Xxxxx, without the Employee’s consent or signature if the Company
determines, in its sole discretion, that such change or modification is
necessary for purposes of compliance with or exemption from the requirements of
Section 409A of the Code or any regulations or other guidance issued
thereunder. Notwithstanding the previous sentence, the Company may
also amend the Plan or this Agreement or revoke the SARs to the extent permitted
by the Plan.
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IN
WITNESS WHEREOF, the parties hereto have caused this Stock Appreciation Rights
Agreement to be executed as of the Effective
Date.
|
“COMPANY”
|
STAGE
STORES, INC.
|
|
By:
|
_________________________________
|
|
|
__________________,
______________
|
|
“EMPLOYEE”
|
____________________________________
|
|
____________________,
an individual
|
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