BIG LOTS 2005 LONG-TERM INCENTIVE PLAN RESTRICTED STOCK AWARD AGREEMENT
Exhibit
10.7
BIG
LOTS 2005 LONG-TERM INCENTIVE PLAN
Grantee:
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Grant
Date:
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Restricted
Stock1
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In
accordance with the terms of the Big Lots 2005 Long-Term Incentive Plan, as
may
be amended (“Plan”), this Restricted Stock Award Agreement (“Agreement”) is
entered into as of the Grant Date by and between you, the Grantee, and Big
Lots,
Inc., an Ohio corporation (“Company”), in connection with the Company’s grant of
the Restricted Stock to you. The Restricted Stock is subject to the terms and
conditions of this Agreement and the Plan.
This
Agreement describes the Restricted Stock you have been granted and the
conditions that must be met before you may receive the Restricted Stock. To
ensure that you fully understand these terms and conditions, you should
carefully read the Plan and this Agreement.
Description
of the Restricted Stock
The
Restricted Stock is the Company’s common shares that you will own after the
Restricted Stock vests (i.e., all restrictions lapse) and you comply with the
terms of this Agreement and the Plan. However, you will forfeit any rights
to
the Restricted Stock (i.e., they will not be transferred to you) to the extent
you do not comply with the terms of this Agreement and the Plan.
No
portion of the Restricted Stock that has not vested may be sold, transferred,
assigned, pledged, encumbered or otherwise disposed of by you in any way
(including a transfer by operation of law); and any attempt by you to make
any
such sale, transfer, assignment, pledge, encumbrance or other disposition shall
be null and void and of no effect.
Vesting
of the Restricted Stock
If
(i)
you are continuously employed by the Company from the Grant Date, (ii) the
First
Trigger, as defined in Exhibit A, is met during your continuous employment,
and
(iii) one of the events described below occurs after the First Trigger is met
and during your continuous employment, then your Restricted Stock will vest
and
will be transferred to you without restriction to the extent and upon the
earlier occurrence of the following:
A.
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If
the Second Trigger, as defined in Exhibit A, is met, all of your
Restricted Stock will vest on the first trading
day2
after the Company files its Annual Report on Form 10-K (“Form 10-K”) with
the United States Securities and Exchange Commission for the fiscal
year
in which the Second Trigger was met. Note that the First Trigger
and
Second Trigger may be met in the same fiscal
year.
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B.
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If
you die or become disabled, a fraction of your Restricted Stock will
vest
for each consecutive year of employment that you have completed with
the
Company, with such service period beginning with the Grant Date.
Such
fraction shall be the reciprocal of the Outside Date, as defined
in
Exhibit A (i.e., 1/(Outside Date)). Note that if a portion of your
Restricted Stock vests upon your death or disability, the later occurrence
of any of other event will not cause the vesting of the remaining
Restricted Stock.
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1 |
Denotes
the number of Big Lots, Inc. common shares , par value $0.01 per
share,
underlying the Restricted Stock
Award.
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2
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As
determined by the New York Stock Exchange or other national securities
exchange or market that regulates Big Lots, Inc. common
shares.
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C.
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If
events A or B above do not occur before the Outside Date, all of
your
Restricted Stock will vest on the first day of the Company’s first trading
window following the Outside Date.
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Subject
to the terms of the Plan, if the First Trigger is not met before the Outside
Date occurs, this Agreement will expire and all of your rights in the Restricted
Stock will be forfeited.
Notwithstanding
anything to the contrary, your Restricted Stock shall not vest before the first
anniversary of the Grant Date. If the First Trigger is met and either event
A or
B above is also met before the first anniversary of the Grant Date, your
Restricted Stock will vest on the first day of the Company’s trading window
first following the first anniversary of the Grant Date.
Your
Rights in the Restricted Stock
Until
the
restrictions and conditions described in this Agreement have been met or this
Agreement expires, whichever occurs earlier, your Restricted Stock will be
held
in escrow. The Company will defer distribution of any dividends that are
declared on your Restricted Stock until the Restricted Stock vests. These
dividends will be distributed at the same time your Restricted Stock vests
or
will be forfeited if your Restricted Stock does not vest.
You
may
vote your Restricted Stock before all the terms and conditions described in
this
Agreement are met or until this Agreement expires, whichever occurs earlier.
This is the case even though your Restricted Stock will not be distributed
to
you until the Restricted Stock vests.
Subject
to the Company’s trading policies and applicable laws and regulations, after you
become vested in any portion of your Restricted Stock, you shall be free to
deal
with and dispose of the vested Restricted Stock, and you may request the
Company’s transfer agent to issue a certificate for such vested Restricted Stock
in your name and free of any restrictions.
Tax
Treatment of the Restricted Stock
You
should consult with a tax or financial adviser to ensure you fully understand
the tax ramifications of your Restricted Stock.
This
brief discussion of the federal tax rules that affect your Restricted Stock
is
provided as general information (not as personal tax advice) and is based on
the
Company’s understanding of federal tax laws and regulations in effect as of the
Grant Date. Section 13.4 of the Plan further describes the manner in which
withholding may occur.
You
are
not required to pay income taxes on your Restricted Stock on the Grant Date.
However, you will be required to pay income taxes (at ordinary income tax rates)
when, if and to the extent your Restricted Stock vests. The amount of ordinary
income you will recognize is the value of your Restricted Stock when it vests.
Also, the Company is required to withhold taxes on this same amount. You may
elect to allow the Company to withhold, upon the vesting of your Restricted
Stock, from
the
common shares to be issued pursuant to your vested Restricted Stock a number
of
common shares with an aggregate Fair Market Value, as defined in the Plan,
as of
the date the withholding is effected, that would satisfy the required statutory
minimum (but no more than such required minimum) with respect to the Company’s
tax withholding obligation.
If you
are at the Grant Date, or subsequently become, subject to the Company’s trading
windows, you may only make this election during an open trading window. If
you
wish to make the withholding election permitted by this paragraph, you must
give
notice to the Company in the manner then prescribed by the Company.
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Any
appreciation of your Restricted Stock after it vests could be eligible to be
taxed at capital gains rates when you sell the common shares. If your Restricted
Stock does not vest, your Restricted Stock will expire and no taxes will be
due.
Section
83(b) Election
Subject
to Section 13.17 of the Plan, you shall have the right to make an election
under
Section 83(b) of the Internal Revenue Code with respect to your Restricted
Stock.
General
Terms and Conditions
Nothing
contained in this Agreement obligates the Company or a subsidiary to continue
to
employ you in any capacity whatsoever or prohibits or restricts the Company
or a
subsidiary from terminating your employment at any time or for any reason
whatsoever; and this Agreement does not in any way affect any employment
agreement that you may have with the Company.
This
Agreement shall be governed by and construed in accordance with the internal
laws, and not the laws of conflicts of laws, of the State of Ohio.
If
any
provision of this Agreement is adjudged to be unenforceable or invalid, then
such unenforceable or invalid provision shall not effect the enforceability
or
validity of the remaining provisions of this Agreement, and the Company and
you
agree to replace such unenforceable or invalid provision with an enforceable
and
valid arrangement which in its economic effect shall be as close as possible
to
the unenforceable or invalid provision.
You
represent and warrant to the Company that you have the full legal power,
authority and capacity to enter into this Agreement and to perform your
obligations under this Agreement and that this Agreement is a valid and binding
obligation, enforceable in accordance with its terms, except that the
enforcement of this Agreement may be subject to bankruptcy, insolvency,
reorganization, moratorium, or other similar laws now or hereinafter in effect
relating to creditors’ rights generally and to general principles of equity. You
also represent and warrant to the Company that you are aware of and agree to
be
bound by the Company’s trading policies and the applicable laws and regulations
relating to the receipt, ownership and transfer of the Company’s securities. The
Company represents and warrants to you that it has the full legal power,
authority and capacity to enter into this Agreement and to perform its
obligations under this Agreement and that this Agreement is a valid and binding
obligation, enforceable in accordance with its terms, except that the
enforcement of this Agreement may be subject to bankruptcy, insolvency,
reorganization, moratorium, or other similar laws now or hereinafter in effect
relating to creditors’ rights generally and to general principles of
equity.
Acceptance
By
accepting your Restricted Stock, you agree that your Restricted Stock is granted
under and is subject to the terms and conditions described in this Agreement
and
in the Plan, and
you
agree to accept as binding, conclusive and final all decisions and
interpretations of the Committee upon any questions arising under this Agreement
or the Plan.
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EXHIBIT
A
As
used
in this Agreement, the following terms shall have the meanings set forth
below:
Applicable
Performance Criteria
shall
mean the greater
of
Performance Criteria Item (A) or (B) below; provided, however, that if none
of
performance criteria (A) or (B) appear on the consolidated statements of
operations included in the Form 10-K for the applicable fiscal year, then the
greater
of
Performance Criteria Item (C) or (D), as its appears in the Form 10-K for the
applicable fiscal year, shall be the Applicable Performance
Criteria.
First
Trigger
shall
mean the Company has earned at least $____ under the Applicable Performance
Criteria for any fiscal year during the Restriction Period.
Performance
Criteria Item
shall
mean the greater
of
performance criteria (A), or (B), or under circumstances described above, the
greater of (C) or (D) below, with each of (A) through (D) (as the case may
be)
adjusted to remove the effect of any Unusual or Non-recurring Event,
Transaction, or Accrual Items:
(A)
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Income
(loss) per Common Share - diluted from continuing
operations.
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(B)
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Income
(loss) per Common Share - diluted from continuing operations before
extraordinary item and/or cumulative effect of a change in accounting
principle (as the case may be).
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If
neither (A) nor (B) appear:
(C)
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Income
(loss) per Common Share - diluted.
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(D)
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Income
(loss) per Common Share - diluted before extraordinary item and/or
cumulative effect of a change in accounting principle (as the case
may
be).
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Outside
Date
shall
mean the ____ anniversary of the date upon which the Restricted Stock Award
was
granted to the Participant.
Restriction
Period
shall
mean the period commencing on Grant Date and continuing until the Outside
Date.
Second
Trigger
shall
mean the Company has earned at least $____ under the Applicable Performance
Criteria for any fiscal year during the Restriction Period.
Unusual
or Non-recurring Event, Transaction or Accrual Item(s)
shall
mean:
Any
gain
or loss as a result of litigation or lawsuit settlement (including class action
lawsuits) that is specifically disclosed, reported or otherwise appears in
the
Company’s periodic filings with the Securities Exchange Commission or the
Company’s annual report to shareholders.
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