Exhibit 10(i)(v)
FORM OF RESTRICTED GROWTH SHARE AGREEMENT
-----------------------------------------
RESTRICTED GROWTH SHARE AGREEMENT (the "Agreement"), dated as of ________,
2004 between LIZ CLAIBORNE, INC., a Delaware corporation (the "Company"), and
____________ (the "Grantee").
The Compensation Committee of the Board of Directors of the Company (the
"Committee") has determined that the objectives of the Company's ____ Stock
Incentive Plan (the "Plan") will be furthered by the grant to the Grantee of
_______ issued shares of Common Stock of the Company currently held by the
Company, subject to the terms, conditions and restrictions set out in this
Agreement (the "Restricted G-Shares").
Notwithstanding any provision hereof, this Agreement shall not become
effective until the Grantee shall have executed and delivered to the Company
this Agreement.
In consideration of the foregoing and of the mutual undertakings set forth
in this Agreement, the Company and the Grantee agree as follows:
SECTION 1. Issuance of Restricted G-Shares. As soon as practicable after
-------------------------------------------
receipt from the Grantee of this executed Agreement, the Company shall cause to
be issued under the Plan in the name of the Grantee, either represented by a
stock certificate or book entry registration at the Company's transfer agent or
other designated financial institution, that number of shares of Common Stock
set forth on the first page of this Agreement as Restricted G-Shares. Such
issuance shall be subject to this Agreement and the restrictions set forth in
Sections 2.1 and 6 hereof. No shares or certificates with respect thereto shall
be delivered to the Grantee until the Restricted G-Shares represented thereby
are free of restrictions as set forth in this Agreement. Upon the issuance of
shares, the Grantee shall have the rights of a stockholder with respect to the
Restricted G-Shares, subject to the terms,
1
conditions and restrictions set forth in this Agreement.
SECTION 2. Restrictions; Vesting.
--------------------------------
2.1 Restricted G-Shares may not be sold, assigned, transferred, pledged or
otherwise encumbered or disposed of prior to vesting. These restrictions shall
apply as well to any shares of Common Stock or other securities of the Company
which may be acquired by the Grantee in respect of the Restricted G-Shares as a
result of any stock split, stock dividend, combination of shares or other change
or any exchange, reclassification or conversion of securities.
2.2. Unless sooner terminated pursuant to the terms hereof, and subject to
accelerated termination pursuant to Section 2.3, the restrictions set forth in
Section 2.1 shall expire on January 19, 2010, provided that the Grantee is then
and has at all times since the date of grant remained an employee of the
Company. For purposes of this Agreement, "Vesting Date" means January 19, 2010
and any other date as of which Restricted G-Shares become vested pursuant to
Section 2.3 or Section 4. As soon as practicable after a Vesting Date, the
Company shall deliver to the Grantee, subject to the provisions of Section 6, a
stock certificate representing the Restricted G-Shares which became free of the
restrictions set forth in Section 2.1 on the Vesting Date and dividends thereon
as described in Section 5. Shares which become vested shall remain subject to
Sections 6 and 7.
2.3. (a) The following definitions shall apply in this Agreement:
(1) "Competitor Group" shall mean the apparel and related companies as
designated by the Committee; provided, that if any company so designated is
merged into or consolidated with, or is acquired by, another entity after
the date hereof, such company shall no longer be included in the Competitor
Group as of the date of the consummation of such merger,
2
consolidation or acquisition.
(2) The "Initial Three-Year Performance Vesting Period" shall mean the period
commencing January 4, 2004 and ending December 30, 2006; the "Quarterly
Performance Vesting Periods" shall mean each of the periods commencing
January 4, 2004 and ending as of the last day of each fiscal quarter of the
Company following the end of the 2006 fiscal year; the "Performance Period"
shall mean each of the Initial Three Year Performance Vesting Period and
each Quarterly Performance Vesting Period.
(3) The "Final Value" for any company shall mean the Market Value (as defined
below) as of the last day of each Performance Period of the number of
shares of such company's capital stock which had a market value of $100 as
of the first day of such Performance Period, assuming the reinvestment of
any dividends paid with respect to such shares during the Performance
Period on a pre-tax basis in additional shares of such company's capital
stock and taking into account any stock splits, reclassifications or any
similar events; provided, however, that if any company enters into a
bankruptcy reorganization or liquidation after the date hereof, such
company's Final Value shall be $0.00 for all purposes hereunder. The
"Market Value" of a share of a company's capital stock shall be determined
for any day as follows: (i) if the shares are then listed or admitted to
trading on a national securities exchange, the closing sales price of such
shares on such day as reported on the consolidated transaction or other
reporting system for securities listed or traded on such exchange, or in
case no such reported sales take place on such day, the average of the last
reported high bid and low asked prices for the shares on such exchange; and
(ii) if sales of the shares are then reported on the National Association
of Securities Dealers Automated Quotation System ("NASDAQ"), National
Market System, the closing sales price of the shares on such day as
reported on the NASDAQ, National Market System, or in case no such reported
sales take place on such day, the average of
3
the last reported high bid and low asked prices for the shares as reported
on the NASDAQ, National Market System; or (iii) if the shares are not then
listed or admitted to trading on a national securities exchange or if sales
of the shares are not then reported on the NASDAQ, National Market System,
the average of the last reported high bid and low asked prices for the
shares in the over the-counter market, as reported by NASDAQ or the
National Quotation Bureau (or, if such prices are not so published by
NASDAQ or the National Quotation Bureau, as furnished by any New York Stock
Exchange member firm which is a market maker for such stock). In the event
the Market Value cannot be determined as aforesaid, the Compensation
Committee shall in good faith determine such value on such basis as it
considers appropriate.
(b) Vesting of the Restricted G-Shares shall be accelerated in full if
the Company's Average Final Value for any Performance Period ranks at or above
the 50th percentile of the Average Final Values for all companies then in the
Competitor Group. Such vesting shall occur as of the last day of such
Performance Period.
(c) For purposes of this Section 2.3, the company representing the
50th percentile of the Average Final Values for all companies in the Competitor
Group (the "50th Percentile Company") shall be determined as follows:
(i) list all companies in order of Average Final Values;
(ii) multiply the number of companies in the Competitor Group by 0.50,
round any fractional result down to the next whole number, and designate
the result as "n";
(iii) the nth company, counting up from the bottom of the list,
represents the 50th percentile.
SECTION 3. Termination of Employment.
------------------------------------
4
3.1 Except as provided in Section 3.2, effective upon termination of the
Grantee's employment with the Company for any reason, the Company shall cancel
the stock certificate or book-entry registration representing any unvested
Restricted G-Shares, and the Dividend Escrow Account (as defined in Section 5)
shall thereupon be terminated; it being understood and agreed that Grantee shall
not be entitled to any payment whatsoever under this Agreement or provisions of
the Plan relating to this Agreement in connection with such cancellation and
termination.
3.2 (a) For purposes of this Agreement, "Retirement" means Grantee's
ceasing to be employed by the Company and any of its affiliates on or after the
Grantee's 65th birthday, on or after the date on which Grantee has attained age
60 and completed at least six years of Vesting Service (as defined in and
determined under the Liz Claiborne 401(k) Savings and Profit Sharing Plan, as
the same has been and may from time to time be amended) or, if approved by the
Compensation Committee of the Company's Board of Directors, on or after the date
Grantee has completed at least 20 years of Vesting Service.
(b) For purposes of this Agreement, "Disability" shall mean Grantee's
total physical or mental inability to perform the usual duties of employment
with the Company or any affiliate, which inability continues for at least six
months.
(c) In the event that Grantee's employment with the Company terminates
during the course of the Initial Three-Year Performance Vesting Period on
account of Retirement, Disability or death, Restricted G-Shares that are then
unvested shall be subject to vesting, if any, as of the last day of the Initial
Three-Year Performance Vesting Period subject to and in accordance with the
provisions of Section 2.3(b); provided, however, that the number of Restricted
G-Shares that become vested in such circumstances shall be equal to the number
that would otherwise vest pursuant to Section 2.3(b) multiplied by a fraction,
(x) the numerator of
5
which is the number of months (including any fractional month) elapsed in the
Initial Three-Year Performance Vesting Period prior to the Grantee's employment
termination and the (y) denominator of which is 36.
SECTION 4. Change in Control.
----------------------------
4.1 (a) For purposes of this Agreement, a "Change in Control" shall be
defined as provided for in the Plan. 4.2 Upon a Change in Control, all
Restricted G-Shares granted hereunder shall become fully vested as of the
effective date of such Change in Control.
SECTION 5. Dividends. Dividends that become payable on Restricted G-Shares
--------------------
shall be held by the Company in escrow in accordance with the provisions of this
Agreement. In this connection, on each Common Stock dividend payment date while
any Restricted G-Shares remain outstanding and restricted hereunder (each, a "RS
Dividend Date"), the Company shall be deemed to have reinvested any cash
dividend otherwise then payable on the Restricted G-Shares in a number of
phantom shares of Common Stock (including any fractional share) equal to the
quotient of such dividend divided by the Market Value of a share of Common Stock
on such RS Dividend Date and to have credited such shares to an unfunded book
account in the Grantee's name (the "Dividend Escrow Account"). As of each
subsequent RS Dividend Date, the phantom shares then credited to the Dividend
Escrow Account shall be deemed to receive a dividend at the then applicable
dividend rate, which shall be reinvested in the same manner in such account in
the form of additional phantom shares. If any dividend payable on any RS
Dividend Date is paid in the form of Common Stock, then any such stock dividend
shall be treated as additional Restricted G-Shares under this Agreement, with
such additional Restricted G-Shares being subject to the same vesting and other
restrictions as the
6
Restricted G-Shares with respect to which dividends became payable, and with any
fractional share being treated as a cash dividend that is subject to the escrow
and reinvestment procedures in this Section 5. Any other non-cash dividends
credited with respect to Restricted G-Shares shall be subject to the escrow and
reinvestment procedures in this Section 5, and shall be valued for purposes of
this Section 5 at the fair market value thereof as of the relevant RS Dividend
Date, as determined by the Committee in its sole discretion. At any Vesting
Date, the Company shall deliver out of escrow to the Grantee that whole number
of shares of Common Stock equal to the whole number of phantom shares then
credited to the Dividend Escrow Account as the result of the deemed investment
and reinvestment in phantom shares of the dividends attributable to the
Restricted G-Shares on which restrictions lapse at such Vesting Date. The value
of any fractional share shall be paid in cash.
SECTION 6. Transferability; Stock Ownership Requirement.
-------------------------------------------------------
6.1 Grantee and the Company acknowledge that as a common goal Grantee will
accumulate a significant personal holding of unrestricted, unencumbered shares
of Common Stock (either directly, or indirectly through the Company's 401(k)
Savings and Profit Sharing Plan or Supplemental Executive Retirement Plan or any
similar plan hereafter adopted).
6.2 If Grantee is at the time a member of the Company's Executive Council,
Grantee shall not (except for the withholding of shares to pay taxes in
accordance with Section 7) sell, transfer, give, pledge, deposit, alienate or
otherwise encumber or dispose of (as used in this Section 6, collectively
"transfer") any shares of Common Stock (or any securities issued as a dividend
or distribution on such shares, or in respect of such shares in connection with
a recombination or reclassification of the Common Stock) issued to Grantee
pursuant hereto if, following such transfer, Grantee would not be the beneficial
owner of unrestricted, unencumbered shares of Common Stock with a
7
value not less than the Grantee's then annual base salary. The Committee may in
appropriate circumstances waive the operation of the foregoing sentence;
provided that if Grantee is not an executive officer of the Company under the
applicable regulations of the Securities and Exchange Commission, such waiver
may be granted by the Company's Chief Executive Officer.
SECTION 7. Withholding Taxes. Whenever Restricted G-Shares that have vested
----------------------------
in accordance with the terms hereof is to be delivered to the Grantee pursuant
to Section 2.2, the Company shall be entitled to require as a condition of such
delivery that the Grantee remit to the Company an amount sufficient in the
opinion of the Company to satisfy all federal, state and other governmental tax
withholding requirements related to the expiration of restrictions on such
shares. The Company shall, upon the written request of the Grantee,
automatically withhold from delivery shares having a Fair Market Value as of the
Vesting Date equal to the amount of tax to be withheld. Fractional share amounts
shall be settled in cash.
SECTION 8. Nature of Payments. The grant of the Restricted G-Shares
---------------------------------
hereunder is in consideration of services to be performed by the Grantee for the
Company and constitutes a special incentive payment and the parties agree that
it is not to be taken into account in computing the amount of salary or
compensation of the Grantee for the purposes of determining (i) any pension,
retirement, profit-sharing, bonus, life insurance or other benefits under any
pension, retirement, profit-sharing, bonus, life insurance or other benefit plan
of the Company, or (ii) any severance or other amounts payable under any other
agreement between the Company and the Grantee.
SECTION 9. Plan Provisions to Prevail. This Agreement is subject to all of
-------------------------------------
the terms and provisions of the Plan. Without limiting the generality of the
foregoing, by entering into this Agreement the Grantee agrees that no member of
the Committee shall be liable for any action or determination
8
made in good faith with respect to the Plan or any award thereunder or this
Agreement. In the event that there is any inconsistency between the provisions
of this Agreement and of the Plan, the provisions of the Plan shall govern.
SECTION 10. Miscellaneous.
-------------------------
10.1 Section Headings. The Section headings contained herein are for
-----------------
purposes of convenience only and are not intended to define or limit the
contents of the Sections.
10.2 Notices. Any notice given to the Company hereunder shall be in writing
-------
and shall be addressed to each of the Company's Senior Vice President, Human
Resources and the Company's Chief Financial Officer, at One Claiborne Avenue,
North Bergen, NJ 07047, or at such other address as the Company may hereafter
designate to the Grantee by notice as provided in this Section 10.2. Any notice
given to the Grantee hereunder shall be addressed to the Grantee at the address
set forth beneath his or her signature hereto, or at such other address as (s)he
may hereafter designate to the Company by notice as provided herein. A notice
hereunder shall be deemed to have been duly given when personally delivered or
mailed by registered or certified mail to the party entitled to receive it.
10.3 Successors and Assigns. This agreement shall be binding upon and inure
----------------------
to the benefit of the parties hereto and the successors and assigns of the
Company and, to the extent consistent with Section 3.2 of this Agreement, the
heirs and personal representatives of the Grantee.
10.4 Governing Law. This Agreement shall be interpreted, construed and
--------------
administered in accordance with the laws of the State of Delaware as they apply
to contracts made, delivered and to be wholly performed in the State of
Delaware.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
LIZ CLAIBORNE, INC.
9
ATTEST:_______________________ By:__________________________
Title:_________________________
GRANTEE
Name:_________________________
Date: ___________________________