EXHIBIT 10.22
RESTRICTED STOCK AWARD AGREEMENT
This Restricted Stock Award Agreement (the "Agreement") made as of
February 2, 2003 by and between Foot Locker, Inc., a New York corporation with
its principal office located at 112 West 34th Street, New York, New York 10120
(the "Company") and Matthew D. Serra (the "Executive").
On November 20, 2002, the Compensation and Management Resources
Committee of the Board of Directors of the Company approved the grant to the
Executive effective February 2, 2003 (the "Date of Grant") of an award of
240,000 shares of Restricted Stock, 140,000 shares granted under the 1995 Stock
Option and Award Plan (the "1995 Plan") and 100,000 shares granted under the
1998 Stock Option and Award Plan (the "1998 Plan"; the 1995 Plan and the 1998
Plan being hereinafter referred to as the "Plans") , subject to the terms of the
Plans and the restrictions set forth in this Agreement.
1. Grant of Shares
The Company is transferring to the Executive 240,000 shares of validly
issued Common Stock of the Company, par value $.01 per share (the "Restricted
Stock"). Such shares are fully paid and nonassessable and upon transfer shall be
validly issued and outstanding. The shares are subject to certain restrictions
pursuant to Section 3 hereof, which restrictions shall expire as provided in
Section 3.3 hereof.
2. Restrictions on Transfer
The Employee shall not sell, transfer, pledge, hypothecate, assign or
otherwise dispose of the Restricted Stock, except as set forth in this
Agreement. Any attempted sale, transfer, pledge, hypothecation, assignment or
other disposition of the shares in violation of this Agreement shall be void and
of no effect and the Company shall have the right to disregard the same on its
books and records and to issue "stop transfer" instructions to its transfer
agent.
3. Restricted Stock
3.1 Deposit of Certificates. The Executive will deposit with and
deliver to the Company the stock certificate or certificates representing the
Restricted Stock, each duly endorsed in blank or accompanied by stock powers
duly executed in blank. In the event the Executive receives a stock dividend on
the Restricted Stock or the Restricted Stock is split or the Executive receives
any other shares, securities, monies, or property representing a dividend on the
Restricted Stock (other than regular cash dividends on and after the date of
this Agreement) or representing a distribution or return of capital upon or in
respect of the Restricted Stock or any part thereof, or resulting from a
split-up, reclassification or other like changes of the Restricted Stock, or
otherwise received in exchange therefor, and any warrants, rights or options
issued to the Executive in respect of the Restricted Stock (collectively the "RS
Property"), the Executive will also immediately deposit with and deliver to the
Company any of such RS Property, including any certificates representing shares
duly endorsed in blank or accompanied by stock powers duly executed in blank,
and such RS Property shall be subject to the same restrictions, including that
of this Section 3.1, as the Restricted Stock with regard to which they are
issued and shall herein be encompassed within the term "Restricted Stock."
3.2 Rights with Regard to the Restricted Stock. The Restricted
Stock has been transferred from either the Company's treasury or newly issued
stock and, therefore, upon delivery to the Executive will constitute issued and
outstanding shares of Common Stock for all corporate purposes. From and after
the date of transfer, the Executive will have the right to vote the Restricted
Stock, to receive and retain all regular cash dividends payable to record
holders of Common Stock on and after the transfer of the Restricted Stock
(although such dividends shall be treated, to the extent required by law, as
additional compensation for tax purposes if paid on Restricted Stock), and to
exercise all other rights, powers and privileges of a holder of Common Stock
with respect to the Restricted Stock, with the exceptions that (i) the Executive
will not be entitled to delivery of the stock certificate or certificates
representing the Restricted Stock until the restriction period shall have
expired and unless all other vesting requirements with respect thereto shall
have been
fulfilled, (ii) the Company will retain custody of the stock certificate or
certificates representing the Restricted Stock and the other RS Property during
the restriction period, (iii) no RS Property shall bear interest or be
segregated in separate accounts during the restriction period and (iv) the
Executive may not sell, assign, transfer, pledge, exchange, encumber or dispose
of the Restricted Stock during the restriction period.
3.3 Vesting.
The Restricted Stock shall become 100% vested and cease to be
Restricted Stock (but still subject to the other terms of the Plan and this
Agreement) on February 3, 2006 if the Executive has been continuously employed
by the Company or its subsidiaries within the meaning of Section 424 of the
Internal Revenue Code of 1986, as amended (the "Control Group") until such date.
Other than as may be provided for under Section 3.4 hereof, there shall
be no proportionate or partial vesting in the periods prior to the appropriate
vesting date and all vesting shall occur only on the appropriate vesting date.
When any Restricted Stock becomes vested, the Company shall promptly
issue and deliver to the Executive a new stock certificate registered in the
name of the Executive for such shares without the legend set forth in Section 4
hereof and deliver to the Executive any related other RS Property.
In addition, all shares of Restricted Stock shall become immediately
vested and cease to be Restricted Stock upon any Change in Control as defined in
Appendix A hereto.
3.4 Forfeiture. In the event of the Executive's death, disability,
or resignation, the Executive shall forfeit to the Company, without
compensation, all unvested shares of Restricted Stock; provided that (i) in the
event of the death or disability of the Executive, or (ii) in the event that the
Executive ceases to be employed by the Company or any subsidiary or affiliate of
the Company as a result of the closing, sale, spin-off or other divestiture of
any operation of the Company, the Compensation and Management Resources
Committee of the Board of Directors of the Company may, in its sole discretion,
but shall not be obligated to, fully vest and not forfeit all or any portion of
the Executive's Restricted Stock; and provided further that (A) in the event
that the employment of the Executive by the Company is terminated in a manner
that gives rise to the payments provided for in Section 5(c)(i) of the
Employment Agreement between Executive and the Company dated January 21, 2003
(the "Employment Agreement"), the Restricted Stock shall become fully vested as
of the date of the termination of his employment, and (B) in the event that
Executive elects to terminate his employment with the Company under the
provisions of Section 5(c)(ii) of the Employment Agreement, 120,000 shares of
the Restricted Stock shall become fully vested as of the date of the termination
of his employment.
3.5 Adjustments. In the event of any stock dividend, split up,
split-off, spin-off, distribution, recapitalization, combination or exchange of
shares, merger, consolidation, reorganization or liquidation or the like, the
Restricted Stock shall, where appropriate in the sole discretion of the
Compensation and Management Resources Committee of the Board of Directors of the
Company, receive the same distributions as other shares of Common Stock or on
some other basis as determined by the Compensation and Management Resources
Committee of the Board of Directors. In any such event, the Compensation and
Management Resources Committee of the Board of Directors may, in its sole
discretion, determine to award additional Restricted Stock in lieu of the
distribution or adjustment being made with respect to other shares of Common
Stock. In any such event, the determination made by the Compensation and
Management Resources Committee of the Board of Directors shall be conclusive.
The Compensation and Management Resources Committee of the Board of Directors
may, in its sole discretion, at any time fully vest and not forfeit all or any
portion of the Executive's Restricted Stock.
3.6 Withholding. The Employee agrees that, subject to subsection
3.7 below,
(a) No later than the date on which any Restricted Stock
shall have become vested, the Executive will pay to the Company, or make
arrangements satisfactory to the Company regarding payment of, any federal,
state or local taxes of any kind required by law to be withheld with respect to
any Restricted Stock which shall have become so vested; and
(b) The Company shall, to the extent permitted by law,
have the right to deduct from any payment of any kind otherwise due to the
Executive any federal, state or local taxes of any kind required by law to be
withheld with respect to any Restricted Stock which shall have become so vested.
3.7 Section 83(b). If the Executive properly elects (as required
by Section 83(b) of the Internal Revenue Code of 1986, as amended) within thirty
(30) days after the issuance of the Restricted Stock to include in gross income
for federal income tax purposes in the year of issuance the fair market value of
such Restricted Stock, the Executive shall pay to the Company or make
arrangements satisfactory to the Company to pay to the Company upon such
election, any federal, state or local taxes required to be withheld with respect
to such Restricted Stock. If the Executive shall fail to make such payment, the
Company shall, to the extent permitted by law, have the right to deduct from any
payment of any kind otherwise due to the Executive any federal, state or local
taxes of any kind required by law to be withheld with respect to such Restricted
Stock, as well as the rights set forth in Section 3.6(c) hereof. The Executive
acknowledges that it is his sole responsibility, and not the Company's, to file
timely the election under Section 83(b) of the Internal Revenue Code of 1986, as
amended, and any corresponding provisions of state tax laws if he elects to
utilize such election.
3.8 Special Incentive Compensation. The Executive agrees that the
award of the Restricted Stock hereunder is special incentive compensation and
that it, any dividends paid thereon (even if treated as compensation for tax
purposes) and any other RS Property will not be taken into account as "salary"
or "compensation" or "bonus" in determining the amount of any payment under any
pension, retirement or profit-sharing plan of the Company or any life insurance,
disability or other benefit plan of the Company.
3.9 Delivery Delay. The delivery of any certificate representing
Restricted Stock or other RS Property may be postponed by the Company for such
period as may be required for it to comply with any applicable federal or state
securities law, or any national securities exchange listing requirements and the
Company is not obligated to issue or deliver any securities if, in the opinion
of counsel for the Company, the issuance of such shares shall constitute a
violation by the Executive or the Company of any provisions of any law or of any
regulations of any governmental authority or any national securities exchange.
4. Legend. All certificates representing shares of Restricted
Stock shall have endorsed thereon a legend referring to the terms, conditions
and restrictions applicable to such Restricted Stock, substantially in the
following form:
"The anticipation, alienation, attachment, sale, transfer,
assignment, pledge, encumbrance or charge of the shares of stock represented
hereby are subject to the terms and conditions (including forfeiture) of the
Foot Locker (the "Company") [1995/1998] Stock Option and Award Plan and an
Agreement entered into between the registered owner and the Company dated as of
February 2, 2003. Copies of such Plan and Agreement are on file at the principal
office of the Company."
5. Not an Employment Agreement. The issuance of the shares of
Restricted Stock hereunder does not constitute an agreement by the Company to
continue to employ the Executive during the entire, or any portion of the, term
of this Agreement, including but not limited to any period during which the
Restricted Stock is outstanding.
6. Power of Attorney. The Company, its successors and assigns, is
hereby appointed the attorney-in-fact, with full power of substitution, of the
Executive for the purpose of carrying out the provisions of this Agreement and
taking any action and executing any instruments which such attorney-in-fact may
deem necessary or advisable to accomplish the purposes hereof, which appointment
as attorney-in-fact is irrevocable and coupled with an interest. The Company, as
attorney-in-fact for the Executive, may, in the name and stead of the Executive,
make and execute all conveyances, assignments and transfers of the Restricted
Stock, Shares and property provided for herein, and the Executive hereby
ratifies and confirms all that the Company, as said attorney-in-fact, shall do
by virtue hereof. Nevertheless, the Executive shall, if so requested by the
Company, execute and deliver to the Company all such instruments as may, in the
judgment of the Company, be advisable for the purpose.
7. Miscellaneous.
7.1 This Agreement shall inure to the benefit of and be binding
upon all parties hereto and their respective heirs, legal representatives,
successors and assigns.
7.2 This Agreement constitutes the entire agreement between the
parties and cannot be changed or terminated orally. No modification or waiver of
any of the provisions hereof shall be effective unless in writing and signed by
the party against whom it is sought to be enforced.
7.3 This Agreement may be executed in one or more counterparts,
all of which taken together shall constitute one contract.
7.4 The failure of any party hereto at any time to require
performance by another party of any provision of this Agreement shall not affect
the right of such party to require performance of that provision, and any waiver
by any party of any breach of any provision of this Agreement shall not be
construed as a waiver of any continuing or succeeding breach of such provision,
a waiver of the provision itself, or a waiver of any right under this Agreement.
7.5 This Agreement is subject, in all respects, to the provisions
of the Plan, and to the extent any provision of this Agreement contravenes or is
inconsistent with any provision of the Plan, the provisions of the Plan shall
govern.
7.6 The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall in no way restrict or
modify any of the terms or provisions hereof.
7.7 All notices, consents, requests, approvals, instructions and
other communications provided for herein shall be in writing and validly given
or made when delivered, or on the second succeeding business day after being
mailed by registered or certified mail, whichever is earlier, to the persons
entitled or required to receive the same, at, in the case of the Company, the
address set forth at the heading of this Agreement and, in the case of the
Executive, his principal residence address as shown in the records of the
Company, or to such other address as either party may designate by like notice.
Notices to the Company shall be addressed to the Chairman of the Compensation
and Management Resources Committee with a copy similarly sent to the General
Counsel.
7.8 This Agreement shall be governed and construed and the legal
relationships of the parties determined in accordance with the internal laws of
the State of New York.
7.9 To indicate your acceptance of the terms of this Restricted
Stock Award Agreement, you must sign and deliver or mail not later than 30 days
from the date hereof, a copy of this Agreement to the General Counsel of the
Company at the address provided in the heading of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
FOOT LOCKER, INC.
By:/s/ Laurie Petrucci
----------------------------
Senior Vice President
/s/ Matthew D. Serra
----------------------------
Matthew D. Serra
ACKNOWLEDGMENT
STATE OF NEW YORK )
) s.s.:
COUNTY OF NEW YORK )
On this 10th day of February 2003, before me personally appeared
Matthew D. Serra, to me known to be the person described in and who executed
the foregoing agreement, and acknowledged that he executed the same as his free
act and deed.
/s/ Gary M. Bahler
-------------------------------
Notary Public
APPENDIX A
CHANGE IN CONTROL
A Change in Control shall mean any of the following: (i) (A) the making
of a tender or exchange offer by any person or entity or group of associated
persons or entities (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934) (a "Person") (other than the Company or its
Affiliates) for shares of Common Stock pursuant to which purchases are made of
securities representing at least twenty percent (20%) of the total combined
voting power of the Company's then issued and outstanding voting securities; (B)
the merger or consolidation of the Company with, or the sale or disposition of
all or substantially all of the assets of the Company to, any Person other than
(a) a merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving or parent entity) fifty percent (50%) or more of the combined voting
power of the voting securities of the Company or such surviving or parent entity
outstanding immediately after such merger or consolidation; or (b) a merger or
capitalization effected to implement a recapitalization of the Company (or
similar transaction) in which no Person is or becomes the beneficial owner,
directly or indirectly (as determined under Rule 13d-3 promulgated under the
Securities Exchange Act of 1934), of securities representing more than the
amounts set forth in (C) below; (C) the acquisition of direct or indirect
beneficial ownership (as determined under Rule 13d-3 promulgated under the
Securities Exchange Act of 1934), in the aggregate, of securities of the Company
representing twenty percent (20%) or more of the total combined voting power of
the Company's then issued and outstanding voting securities by any Person acting
in concert as of the date of this Agreement; provided, however, that the Board
of Directors of the Company (referred to herein as the "Board") may at any time
and from time to time and in the sole discretion of the Board, as the case may
be, increase the voting security ownership percentage threshold of this item (C)
to an amount not exceeding forty percent (40%); or (D) the approval by the
shareholders of the Company of any plan or proposal for the complete liquidation
or dissolution of the Company or for the sale of all or substantially all of the
assets of the Company; or (ii) during any period of not more than two (2)
consecutive years, individuals who at the beginning of such period constitute
the Board, and any new director (other than a director designated by a person
who has entered into agreement with the Company to effect a transaction
described in clause (i)) whose election by the Board or nomination for election
by the Company's shareholders was approved by a vote of at least two-thirds (")
of the directors then still in office who either were directors at the beginning
of the period or whose election or nomination for election was previously so
approved, cease for any reason to constitute at least a majority thereof.