Form of DILLARD’S, INC. restricted stock award agreement (2005 Non-Employee Director Restricted Stock Plan)
Form
of
XXXXXXX’X,
INC.
(2005
Non-Employee Director Restricted Stock Plan)
THIS
RESTRICTED STOCK AWARD AGREEMENT (this
“Agreement”), made as of the day
of ,
(the
“Grant Date”), between XXXXXXX’X
INC., a
Delaware corporation (“Dillard’s”), and (the
“Grantee”);
W I T N E S S E T H :
WHEREAS,
Dillard’s has adopted the 2005 Non-Employee Director Restricted Stock Plan (the
“Plan”) (except as otherwise expressly set forth herein, the capitalized terms
used in this Agreement shall have the same definitions set forth in the Plan);
and
WHEREAS,
pursuant to the Plan, the Committee has determined to grant an Award to the
Grantee in the form of shares of Class A Common Stock subject to the terms,
conditions and limitations provided herein and in the Plan (“Restricted
Shares”);
NOW,
THEREFORE, the parties hereto agree as follows:
ARTICLE
I
GRANT
OF RESTRICTED SHARES
Section
1.01.
Dillard’s hereby grants to Grantee, on the terms and conditions set forth in
this Agreement, the number of shares of Restricted Shares set forth under the
Grantee’s name on the signature page hereto. The Restricted Shares are granted
without requirement of payment. However, if the Restricted Shares have not been
previously issued, the Grantee agrees to pay the par value ($0.01) per
Restricted Share no later than 10 business days after the Grant Date. Grantee
will be advised if this is the case and be given payment instructions at that
time.
Section
1.02. The
Grantee’s rights with respect to all the Restricted Shares shall remain
forfeitable at all times prior to the Lapse Date (as defined
below).
Section
1.03. This
Agreement shall be construed in accordance with, and subject to, the terms of
the Plan (the provisions of which are incorporated herein by reference). By
signing this Agreement, the Grantee accepts this Award, acknowledges receipt of
a copy of the Plan and the prospectus for the Plan and acknowledges that the
award is subject to all the terms and provisions of the Plan and this Agreement.
Grantee further agrees to accept as binding, conclusive and final all decisions
and interpretations by the Committee of the Plan upon any questions arising
under the Plan.
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ARTICLE
II
RIGHTS
OF GRANTEE
Except as
otherwise provided in this Agreement and other than with respect to those
Restricted Shares which have been forfeited pursuant to Section 3.02
hereof, the Grantee shall be entitled, at all times on and after the Grant Date,
to exercise all rights of a shareholder with respect to the Restricted Shares
(whether or not the restrictions thereon shall have lapsed), including the right
to vote the Restricted Shares and the right to receive dividends thereon.
Notwithstanding the foregoing, prior to the Lapse Date, the Grantee shall not be
entitled to transfer, sell, pledge, hypothecate or assign any Restricted Shares
(collectively, the “Transfer Restrictions”).
ARTICLE
III
VESTING;
FORFEITURES; LAPSE OF RESTRICTIONS
Section
3.01. The
Transfer Restrictions with respect to all the Restricted Shares granted under
this Agreement shall lapse on the _____________ anniversary of the Grant Date
(the “Lapse Date”), provided the Grantee continues to serve as a member of the
board of directors of Dillard’s until such Lapse Date; provided, however, that
the Transfer Restrictions with respect to all the Restricted Shares shall lapse,
if sooner, on the date of the Grantee’s termination as a member of the board of
directors as a result of the Grantee’s Retirement, death or Disability (also, a
“Lapse Date”). Notwithstanding anything in the vesting acceleration provision
contained in the provision of the preceding sentence to the contrary, in no
event shall the Grantee be vested or otherwise entitled to more than 100% of the
Restricted Shares granted pursuant to Section 1.01 above.
Section
3.02.
Notwithstanding anything in this Agreement to the contrary, upon the termination
of the Grantee’s service as a member of the board of directors of Dillard’s for
any reason other than as a result of the Grantee’s Retirement, death or
Disability, all of the Restricted Shares in which the Transfer Restrictions have
not previously lapsed in accordance with Section 3.01 hereof shall be
forfeited and automatically transferred to and reacquired by Dillard’s at no
cost to Dillard’s, and neither the Grantee nor any beneficiaries, heirs,
executors, administrators or successors of such Grantee shall thereafter have
any right or interest in the Restricted Shares.
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ARTICLE
IV
ESCROW
AND DELIVERY OF SHARES
Section
4.01.
Certificates (or an electronic “book entry” on the books of Dillard’s or its
designee) representing the Restricted Shares shall be issued and held by
Dillard’s (or its designee) in escrow (together with any stock transfer powers
which Dillard’s may request of Grantee) and shall remain in the custody of
Dillard’s (or its designee) until (a) their delivery to the Grantee or
his/her estate as set forth in Section 4.02 hereof, or (b) their
forfeiture and transfer to Dillard’s as set forth in Section 3.02 hereof.
Section
4.02.
(a) Subject to paragraph (b) of this Section 4.02, certificates
(or an electronic “book entry”) representing those Restricted Shares in respect
of which the Transfer Restrictions have lapsed pursuant to Section 3.01
hereof shall be delivered to the Grantee or a broker designated by Dillard’s for
the purpose of receiving such Restricted Shares as soon as practicable following
the Lapse Date, subject to the application of Article VIII
below.
(b) Certificates
(or an electronic “book entry”) representing those Restricted Shares in respect
of which the Transfer Restrictions have lapsed pursuant to Section 3.01
upon the Grantee’s death shall be delivered to a broker designated by Dillard’s
for the purpose of receiving such Restricted Shares or to the Grantee’s
beneficiary if one is designated, or the executors or administrators of the
Grantee’s estate as soon as practicable following the Lapse Date and Dillard’s
receipt of notification of the Grantee’s death, accompanied by an official death
certificate.
(c) The
Grantee, beneficiary, the executors or administrators of the Grantee’s estate,
as the case may be, may receive, hold, sell or otherwise dispose of those
Restricted Shares delivered to him or her pursuant to paragraph (a) or (b)
of this Section 4.02 free and clear of the Transfer Restrictions, but
subject to compliance with all federal and state securities laws.
Section
4.03.
(a) Any stock certificate issued pursuant to Section 4.01 shall bear a
legend in substantially the following form:
This
certificate and the shares of stock represented hereby are subject to the terms
and conditions applicable to the Restricted Shares contained in the 2005
Non-Employee Director Restricted Stock Plan (the “Plan”) and a Restricted Stock
Award Agreement (the “Agreement”) between Dillard’s and the registered owner of
the shares represented hereby. Release from such terms and conditions shall be
made only in accordance with the provisions of the Plan and the Agreement,
copies of which are on file in the office of the Secretary of
Dillard’s.
(b) As soon
as practicable following a Lapse Date, Dillard’s shall issue a new certificate
(or electronic “book entry”) for the Restricted Shares which have become
nonforfeitable in relation to such Lapse Date, which new certificate (or
electronic “book entry”) shall not bear the legend set forth in
paragraph (a) of this Section 4.03 and shall be delivered in
accordance with Section 4.02 hereof.
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ARTICLE
V
NO
RIGHT TO CONTINUED SERVICE AS A DIRECTOR
Nothing
in this Agreement or the Plan shall be interpreted or construed to confer upon
the Grantee any right with respect to continued service or election to the board
of directors of Dillard’s, nor shall this Agreement or the Plan interfere in any
way with any right of stockholders or the board of directors of Dillard’s to
nominate, elect or remove a director on the board of directors.
ARTICLE
VI
ADJUSTMENTS
UPON CHANGE IN CAPITALIZATION
If, by
operation of Section 4.03 of the Plan, the Grantee shall be entitled to
new, additional or different shares of stock or securities of Dillard’s or any
successor corporation or entity or other property, such new, additional or
different shares or other property shall thereupon be subject to all of the
conditions and restrictions which were applicable to the Restricted Shares
immediately prior to the event and/or transaction that gave rise to the
operation of Section 4.03 of the Plan.
ARTICLE
VII
TAX
WITHHOLDING/SECTION 83 ELECTION
Section
7.01.
Tax Consequences and Section 83(b) Election. The
Grantee has reviewed with the Grantee’s own tax advisors the federal, state,
local and foreign tax consequences of this investment and the transactions
contemplated by this Agreement. The Grantee is relying solely on such advisors
and not on any statements or representations of Dillard’s or any of its agents.
The Grantee understands that the Grantee (and not Dillard’s) shall be
responsible for the Grantee’s own tax liability that may arise as a result of
the transactions contemplated by this Agreement.
In
connection with this Agreement, the Grantee may make an election under
Section 83(b) of the Code to include in the Grantee’s gross income in the
year of this Award the amount specified in Section 83(b) of the Code. If
the Grantee makes such an election, the Grantee shall notify Dillard’s in
writing of such election within 10 days after filing the notice of the
election with the Internal Revenue Service, in addition to any filing and
notification required pursuant to regulations issued under Section 83(b) of
the Code.
THE
GRANTEE ACKNOWLEDGES THAT IT IS THE GRANTEE’S SOLE RESPONSIBILITY AND NOT
DILLARD’S TO TIMELY FILE THE ELECTION UNDER SECTION 83(b) OF THE CODE, EVEN
IF THE GRANTEE REQUESTS DILLARD’S OR ITS REPRESENTATIVES TO MAKE THIS FILING ON
THE GRANTEE’S BEHALF.
Section
7.02.
Tax Withholding. Subject
to certain exceptions in the event the Grantee has previously made a valid
Section 83(b) election, upon the vesting of the Restricted Shares the Grantee
will have income in the amount of the value of the Restricted Shares that become
vested
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on the
Lapse Date, and the Grantee acknowledges that he or she must pay income tax on
that income. Whenever any Restricted Shares becomes vested under the terms of
this Agreement, the Grantee must remit, on or prior to the due date thereof, the
minimum amount necessary to satisfy all of the federal, state and local
withholding (including FICA) tax requirements imposed on Dillard's relating to
the Restricted Shares. The Committee may require the Grantee to satisfy these
minimum withholding tax obligations by any (or a combination) of the following
means: (i) a cash, check, or wire transfer; (ii) authorizing Dillard's to
withhold from the Restricted Shares otherwise deliverable to the Grantee as a
result of the vesting of the Restricted Shares, a number of Restricted Shares
having a Fair Market Value, as of the date the withholding tax obligation
arises, less than or equal to the amount of the withholding obligation; or (iii)
in unencumbered shares of Dillard's Class A Common Stock, which have been held
for at least six months.
ARTICLE
VIII
MODIFICATION
OF AGREEMENT
Except as
set forth in the Plan and herein, this Agreement may be modified, amended,
suspended or terminated, and any terms or conditions may be waived, but only by
a written instrument executed by the parties hereto.
ARTICLE
IX
SEVERABILITY
Should
any provision of this Agreement be held by a court of competent jurisdiction to
be unenforceable or invalid for any reason, the remaining provisions of this
Agreement shall not be affected by such holding and shall continue in full force
and effect in accordance with their terms.
ARTICLE
X
GOVERNING
LAW
The
validity, interpretation, construction and performance of this Agreement shall
be governed by the laws of the State of Delaware without giving effect to the
conflicts of laws principles thereof.
ARTICLE
XI
SUCCESSORS
IN INTEREST
This
Agreement shall inure to the benefit of and be binding upon any successor to
Dillard’s. This Agreement shall inure to the benefit of the Grantee’s
beneficiaries, heirs, executors, administrators and successors. All obligations
imposed upon the Grantee and all rights granted to Dillard’s under this
Agreement shall be binding upon the Grantee’s beneficiaries, heirs, executors,
administrators and successors.
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XXXXXXX’X
INC.
By
Name
Title
[GRANTEE]
By
Name
Title
Number of
Restricted Shares Awarded: ___________________________
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