Exhibit 10.17
LINENS 'N THINGS
July 6, 2004
Restricted Stock Units Agreement
To: Jack E. Moore, Jr.,
On July 6, 2004, you have been awarded 25,000 restricted stock units
("Restricted Stock Units"), each unit representing the right to receive one
share of common stock, par value $0.01 per share, of Linens 'n Things, Inc. (the
"Company") pursuant to the Company's New Hire Authorization (the
"Authorization"), subject in all respect to the terms of this Restricted Stock
Units Agreement (this "Agreement").
By signing a copy of this Agreement, you hereby agree to the following
terms and conditions:
1. INCORPORATION BY REFERENCE OF PLAN. The provisions of the
Authorization are incorporated by reference in this Agreement and shall govern
as to all matters not expressly provided for in this Agreement. Terms not
defined in this Agreement have the meanings set forth in the Authorization. In
the event of any actual conflict between the terms of this Agreement and the
Authorization, the terms of the Authorization shall govern.
2. VESTING. Except as expressly provided elsewhere in this
Agreement, the Restricted Stock Units shall vest according to the dates shown
below (each a "Vesting Date"):
PERCENTAGE OF SHARES FIRST DATE ON WHICH
WHICH VEST HEREUNDER SUCH SHARES VEST
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20% June 14, 2005
20% June 14, 2006
20% June 14, 2007
20% June 14, 2008
20% June 14, 2009
3. PAYMENT OR CONVERSION OF RESTRICTED STOCK UNITS.
(a) On the Vesting Date, the Company shall deliver to you
the number of shares of stock corresponding to such
vested Restricted Stock Units, except to the extent you
have otherwise elected to defer receipt in accordance
with terms and conditions determined by the Company. On
or before each vesting date set forth in Section 2 of
this Agreement, you shall pay to the Company and amount
equal to $0.01 multiplied by the number of common shares
underlying the Restricted Stock Units which have vested
on such date.
(b) For so long as you hold Restricted Stock Units, at the
time any dividend is paid with respect to a share of
Company common stock, the Company shall pay to you in
respect of each Restricted Stock Unit an amount in cash,
in Company common stock, in other property or in a
combination thereof, in each case having a value equal
to the fair market value of such dividend on the
dividend payment date (hereinafter "Dividend
Equivalents") subject to any deferral election you may
have made in accordance with the Company's
authorization; provided, however, that unless otherwise
determined by the Company, any such Dividend Equivalent
payment in respect of stock dividends, dividends in kind
or extraordinary dividends will be subject to the
vesting provisions applicable to such Restricted Stock
Unit.
4. CHANGE IN CONTROL. The Restricted Stock Units granted hereunder
shall become fully vested upon a Change in Control (as such term is defined in
the Authorization) without regard to the vesting schedule contained in Section 2
of this Agreement.
5. VESTING ON DEATH. Upon your death during your active employment
at the Company, all then outstanding and unvested Restricted Stock Units granted
hereunder shall become immediately vested without regard to the vesting schedule
contained in Section 2 of this Agreement.
6. VESTING ON TERMINATION OF EMPLOYMENT. Upon the termination of
your employment with the Company for any reason other than your death, you will
be entitled only to the percentage of the Restricted Stock Units which had
vested under this Agreement as of your termination date except as may be
otherwise set forth in your written employment agreement executed by you and the
Company, if applicable.
7. COMPLIANCE WITH SECURITIES LAWS. You understand and acknowledge
that the Restricted Stock Units issued to you pursuant to this Agreement may not
be offered, sold, transferred or otherwise disposed of except in accordance with
the Securities Act of 1933, as amended, the rules and regulations thereunder and
all applicable state securities laws. In addition, the Restricted Stock Units,
like any stock of the Company which you may own directly or indirectly, may not
be traded during a period when the Company has advised you that trading in the
Company's stock is prohibited.
8. RESTRICTIONS ON RESALE. You understand that the Restricted Stock
Units are subject to restrictions set forth in this Agreement and are only
transferable on the books and records of the Company and its transfer agent and
registrar and that the Company and such transfer agent and registrar will not
register any transfer of the Restricted Stock Units which the Company in good
faith believes violates the restrictions set forth herein.
9. DESIGNATED BENEFICIARY. You may designate a Beneficiary who will
have the right to receive the Restricted Stock Units, if any, which vest on your
death. The form which may be used for this purpose is attached to this
Agreement. If you do not designate a Beneficiary by completing the attached form
and returning it to the Company, the Company will automatically default payment
to your estate.
10. RIGHTS AS A SHAREHOLDER. You shall have no rights as a
shareholder with respect to
the common shares underlying any Restricted Stock Units unless and until a
certificate representing such common shares is duly issued and delivered to you.
11. WITHHOLDING TAXES. The Company's obligation to deliver shares to
you upon vesting of any Restricted Stock Units shall be subject to your
satisfaction of all applicable federal, state and local income tax, employment
tax and withholding requirements.
12. ANTI-DILUTION PROVISIONS. If prior to the vesting of the
Restricted Stock Units, there shall occur any change in the outstanding shares
of the Company's common stock by reason of any stock dividend, stock split,
combination or exchange of such shares of common stock, merger, consolidation,
recapitalization, reorganization, liquidation, dissolution or similar event, and
as often as the same shall occur, then the kind and number of Restricted Stock
Units may be adjusted by the Compensation Committee of the Board of Directors
(the "Committee") in such manner as it may deem equitable, the determination of
which shall be binding and conclusive. Failure of the Committee to provide for
any such adjustment shall be conclusive evidence that no adjustment is required.
13. ACCEPTANCE OF PROVISIONS. The execution of this Agreement by you
shall constitute your acceptance of and agreement to all of the terms and
conditions of the Authorization and this Agreement.
14. CONFIDENTIALITY AND RESTRICTIVE COVENANT PROVISIONS. In
consideration of the grant of Restricted Stock Units to you and the compensation
now and hereafter paid to you, you hereby acknowledge and agree as follows:
(a) CONFIDENTIALITY
(i) You are aware that the Company owns proprietary and
confidential information and materials covering or
related to the Company's finances, business and
operations which from time to time may be disclosed to
you or to which you may obtain access or develop or
create on behalf of the Company. Such information and
materials may include, but are not limited to, sales
information, plans and projections, trade secrets,
marketing plans, product plans, margin information,
vendor compensation, store plans and information,
pricing techniques and plans, training programs,
strategies, statistical data, forecasts, replenishment
programs and systems and other information concerning
the Company and its past, present or future operations,
financing, sales, marketing or business (collectively
"Confidential Information"). Confidential Information
does not include information which is or becomes known
generally by the public other than through your breach
of this Agreement. You acknowledge the confidential and
secret character of the Confidential Information and
agree that the Confidential Information is the sole,
exclusive and extremely valuable property of the Company
which gives the Company an advantage over its
competitors and is critical to the success of the
Company and its business.
(ii) All Confidential Information is the property of the
Company and neither your employment nor the disclosure
of such information to you should be construed to grant
any right, license or authorization to you to use the
Confidential Information except in connection with the
performance by you of the services for which you are
employed by the Company. You will not during your
employment by the Company or at any time thereafter
exploit, reproduce or use for yourself or any third
parties, or divulge or convey to any third parties, any
Confidential Information except to the extent that
Confidential Information shall be required to be used
and/or divulged in order to enable you to perform in the
ordinary course the services for which you are then
currently employed by the Company.
(iii) You will comply with all regulations established by the
Company to maintain the confidentiality of the
Confidential Information and will not remove
Confidential Information from your place of employment
without the express consent of the Company.
(iv) On termination of your employment with the Company or at
any other time as the Company may request, you shall end
all use of any Confidential Information and return to
the Company all originals and copies of any Confidential
Information then in or thereafter coming into your
possession (in whatever form and however such
Confidential Information might be obtained or recorded).
You shall not thereafter retain a copy of any such
Confidential Information.
(b) RESTRICTIVE COVENANT
(i) During your employment by the Company and for a period
of two (2) calendar years thereafter (the "Restriction
Period"), you will not, alone or with others, directly
or indirectly, induce or attempt to induce any person
who, during the term of your employment with the
Company, was an employee or representative of the
Company, to terminate his or her employment or
relationship with the Company or to violate the terms of
any agreement between such employee or representative
and the Company, or hire or attempt to hire any employee
of the Company within one hundred eighty (180) after the
termination of such employee's relationship with the
Company.
(ii) During your employment by the Company and for a period
of two (2) calendar years thereafter, You will not
accept any employment or related position, or act as a
consultant (either directly or indirectly) with the
following competitors of the Company: Bed Bath & Beyond,
Party City, Spencer Gifts, J.C. Penny's, Target, Ross
stores, TJ Maxx Corp, or Federated Department stores. In
the case of a termination of employment by the Company
for any other reason than by "Cause" (as defined in
Section 5(b)), the Restriction Period shall terminate
immediately upon the employee's termination of
employment.
(iii) You agree that the above restrictions are reasonable and
necessary in light of your position and responsibilities
with the Company.
(c) REMEDIES
(i) You acknowledge that the Company will not have an
adequate remedy at law for your breach of any provision
of this Section 14. You consent to the entry of
injunctive or other appropriate equitable relief against
you with respect to any such breach (without proof of
monetary or immediate damage and without any bond or
other security being required), in addition to any other
remedies which might be available to the Company at law
or in equity.
(ii) Upon your breach of this Section 14, all outstanding
Restricted Stock Units granted to you (A) to the extent
not yet vested or otherwise not then issued to you for
any reason, shall be immediately forfeited and
cancelled, and (B) to the extent any such Restricted
Stock Units have vested and the certificates for the
underlying common shares have been issued to you, the
value of such underlying common shares shall be
immediately returned by you to the Company, either (x)
in "kind" by the transfer and delivery to the Company of
that number of shares of Company common stock equal to
the number of common shares represented by such vested
Restricted Stock Units, (y) in cash equal to the Fair
Market Value (as defined in the Authorization) of a
share of Company common stock on the date of the breach
multiplied by the number of common shares represented by
such vested Restricted Stock Units, or (z) a combination
of (x) and (y). The determination of whether you have
breached this Section 14 shall be determined by the
Committee or the Board in good faith. This Section 14
shall have no application following a termination of
employment following a Change in Control (as defined in
the Authorization).
(iii) You agree to reimburse the Company for all costs and
expenses (including, without limitation, court costs and
the reasonable fees and expenses of attorneys) incurred
by the Company in connection with any action by the
Company seeking to enforce this Section 14.
(iv) If any court of competent jurisdiction determines that
any provision of this Section 14, as written, is too
broad in scope or duration to be enforceable, such
provision should be narrowed in scope and duration to
the extent (and only to such extent) necessary to make
such provision enforceable. The invalidity or
unenforceability of any provision or provisions of this
Section 14 shall not affect the validity or
enforceability of any other provision of this Agreement,
which shall remain in full force and effect.
15. VENUE AND JURISDICTION; WAIVER OF JURY TRIAL. Any claim brought
by you arising out of or in connection with this Agreement or the Authorization
(as incorporated herein by reference), the subject matter thereof, or the
performance or non-performance of any obligation thereunder (other than a
counterclaim maintained by you in an action originally brought by the Company),
shall be brought in either the state or federal courts located in the State of
New Jersey. You hereby irrevocably submit to the jurisdiction of each of the
state or federal courts located in the State of New Jersey for the purposes of
any suit, civil action or other proceeding ("Suit") arising out of or in
connection with this Agreement or the Authorization, the subject matter thereof,
or the performance or non-performance of any obligation thereunder. You hereby
waive and agree not to assert by way of motion, as a defense or otherwise in any
such Suit, any claim that you are not subject to the jurisdiction of the state
or federal courts located in the State of New Jersey, that such Suit is
brought in an inconvenient forum, or that the venue of such Suit is improper.
You hereby consent to service of process by first-class mail with respect to any
action brought by the Company against you arising out of or in connection with
this Agreement or the Authorization.
YOU HEREBY WAIVE ANY TRIAL BY JURY WITH RESPECT TO ANY CLAIM ARISING OUT
OF OR IN CONNECTION WITH THIS AGREEMENT OR THE AUTHORIZATION, THE SUBJECT MATTER
THEREOF, OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY OBLIGATION THEREUNDER.
16. MISCELLANEOUS. This Agreement and the Authorization contain a
complete statement of all the arrangements between the parties with respect to
their subject matter, and this Agreement cannot be changed except in a writing
executed by both parties. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey applicable to agreements
made and to be performed exclusively in New Jersey. The headings in this
Agreement are solely for the convenience of reference and shall not affect its
meaning or interpretation.
Please indicate your acceptance of the foregoing terms and conditions by
signing a copy of this Agreement and returning it to the Company to the
attention of the Compensation Department.
Linens 'n Things, Inc. Employee:
By: BRIAN D. SILVA JACK E. MOORE, JR.
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Name: Brian D. Silva Jack E. Moore, Jr.
Title: Senior Vice President, Human
Resources, Administration
and Corporate Secretary
Date: July 6, 2004 Date: July 10, 2004
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