Attached files
file | filename |
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8-K - FORM 8-K - GSI COMMERCE INC | c14736e8vk.htm |
EX-4.1 - EXHIBIT 4.1 - GSI COMMERCE INC | c14736exv4w1.htm |
EX-99.3 - EXHIBIT 99.3 - GSI COMMERCE INC | c14736exv99w3.htm |
EX-2.1 - EXHIBIT 2.1 - GSI COMMERCE INC | c14736exv2w1.htm |
EX-99.2 - EXHIBIT 99.2 - GSI COMMERCE INC | c14736exv99w2.htm |
EX-10.2 - EXHIBIT 10.2 - GSI COMMERCE INC | c14736exv10w2.htm |
EX-10.3 - EXHIBIT 10.3 - GSI COMMERCE INC | c14736exv10w3.htm |
EX-99.1 - EXHIBIT 99.1 - GSI COMMERCE INC | c14736exv99w1.htm |
Exhibit 10.1
GSI Commerce, Inc.
2010 Equity Incentive Plan
Form of Restricted Stock Unit Award Grant Notice
2010 Equity Incentive Plan
Form of Restricted Stock Unit Award Grant Notice
GSI
Commerce, Inc. (the Company), pursuant to Section 6(b) of its 2010 Equity Incentive Plan (the
Plan), hereby awards to you as a Participant under the Plan a Restricted Stock Unit Award for the
number of shares of the Companys Common Stock set forth below (the Award). This Award is
subject to all of the terms and conditions as set forth herein and in (i) the applicable Restricted
Stock Unit Award Agreement, which is attached hereto and incorporated herein in its entirety, and
(ii) the Plan, which is available on the Companys Intranet under the Legal and Human Resources
sections and is incorporated herein in its entirety.
Participant:
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Michael Conn | |
Date of Grant: |
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Number of Shares subject to Award: |
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Consideration:
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Your Services to the Company |
Vesting Schedule: The shares subject to this Award will vest in accordance with the following
schedule; provided that the vesting will cease upon the termination of your Continuous Service:
50% of the total number of shares will vest on the third annual anniversary
of the Date of Grant; and
50% of the total number of shares will vest on the fourth annual anniversary
of the Date of Grant.
Notwithstanding the foregoing, this Award will immediately vest in full in the event:
1. | that your Continuous Service is terminated due to your death or Disability (as such
term is defined in the Plan); or |
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2. | that you remain in Continuous Service through the date of a Change in Control (as
defined in the Change in Control Agreement by and between the Company and you dated August
8, 2006 (the Change in Control Agreement)) of the Company.
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Additional Terms/Acknowledgements: You acknowledge receipt of, and understand and agree to, this
Restricted Stock Unit Award Grant Notice, the Restricted Stock Unit Award Agreement and the Plan.
You also acknowledge receipt of the 2010 Equity Incentive Plan Prospectus. You further acknowledge
that as of the Date of Grant, this Restricted Stock Unit Award Grant Notice, the Restricted Stock
Unit Award Agreement, and the Plan set forth the entire understanding between you and the Company
regarding the acquisition of stock in the Company pursuant to this Award and supersede all prior
oral and written agreements on that subject with the exception of (i) Stock Awards (as defined in
the Plan) previously granted and delivered to you under the Plan, and (ii) the following agreements
only:
Other Agreements: Change in Control Agreement
GSI Commerce, Inc. | Participant | |||||
By: |
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Signature | Signature | |||||
Name:
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Name: | |||||
Title:
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Date: | |||||
Date: |
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Attachments: Restricted Stock Unit Award Agreement
Attachment I
Restricted Stock Unit Award Agreement
GSI Commerce, Inc.
2010 Equity Incentive Plan
Restricted Stock Unit Award Agreement
2010 Equity Incentive Plan
Restricted Stock Unit Award Agreement
Pursuant to your Restricted Stock Unit Award Grant Notice (Grant Notice) and this Restricted
Stock Unit Award Agreement (the Agreement), GSI Commerce, Inc. (the Company) has granted you a
Restricted Stock Unit Award under Section 6(b) of the GSI Commerce, Inc. 2010 Equity Incentive Plan
(the Plan) for the number of shares of the Companys common stock (the Common Stock) indicated
in the Grant Notice (collectively, the Award). Capitalized terms not explicitly defined in this
Agreement but defined in the Plan or Grant Notice will have the same definitions as in the Plan.
The details of your Award are as follows.
1. Grant of the Award. This Award represents the right to be issued on a future date
the number of shares of the Companys Common Stock as indicated in the Grant Notice. As of the Date
of Grant, the Company will credit to a bookkeeping account maintained by the Company for your
benefit (Account) the number of shares of Common Stock subject to the Award.
2. Distribution of Shares of Common Stock.
(a) The Company will deliver to you a number of shares of Common Stock equal to the number of
vested shares of Common Stock subject to your Award on the vesting date or dates provided in your
Grant Notice; provided, however, that if such vesting date falls on a date that is not a business
day, such delivery date shall instead fall on the next following business day. The form of such
delivery (e.g., a stock certificate or electronic entry evidencing such shares) shall be determined
by the Company.
(b) Notwithstanding the foregoing, in the event that the Company determines that your sale of
shares of Common Stock on the date the shares subject to the Award are scheduled to be delivered
(the Original Distribution Date) would violate its policy regarding insider trading of the Common
Stock, as determined by the Company in accordance with such policy, then such shares shall not be
delivered on such Original Distribution Date and shall instead be delivered as soon as practicable
following the next date that you could sell such shares pursuant to such policy; provided, however,
that in no event shall the delivery of the shares be delayed pursuant to this provision beyond the
later of: (1) December 31st of the same calendar year of the Original Distribution Date, or (2) the
15th day of the third calendar month following the Original Distribution Date.
3. Consideration. The Common Stock delivered to you pursuant to your Award
shall be deemed paid, in whole or in part, in consideration of your services to the Company in the
amounts and to the extent required by law.
4. Vesting. Subject to the limitations contained herein, your Award will vest as
provided in the Grant Notice; provided that vesting will cease upon the termination of your
Continuous Service. Upon such termination of your Continuous Service, the shares credited to the
Account that were not vested on the date of such termination will be forfeited at no cost to the
Company and you will have no further right, title or interest in or to such underlying shares of
Common Stock.
5. Number of Shares. The number of shares of Common Stock subject to your Award
referenced in your Grant Notice may be adjusted from time to time for Capitalization Adjustments as
set forth in the Plan.
(a) Any shares, cash or other property that becomes subject to the Award pursuant to this
Section 5, if any, shall be subject, in a manner determined by the Board, to the same forfeiture
restrictions, restrictions on transferability, and time and manner of delivery as applicable to the
other shares covered by your Award.
(b) Notwithstanding the provisions of this Section 5, no fractional shares or rights for
fractional shares of Common Stock shall be created pursuant to this Section 5. The Board shall, in
its discretion, determine an equivalent benefit for any fractional shares or fractional shares that
might be created by the adjustments referred to in this Section 5.
6. Dividends. You shall receive no benefit or adjustment to your Award with respect
to any cash dividend, stock dividend or other distribution that does not result from a
Capitalization Adjustment as provided in Section 9(a) of the Plan; provided, however, that this
sentence shall not apply with respect to any shares of Common Stock that are delivered to you in
connection with your Award after such shares have been delivered to you.
7. Conditions to Issuance and Delivery of Shares. Notwithstanding any other provision
of this Agreement or the Plan, the Company will not be obligated to issue or deliver any shares of
Common Stock pursuant to this Agreement (i) until all conditions to the Award have been satisfied
or removed, (ii) until, in the opinion of counsel to the Company, all applicable Federal and state
laws and regulations have been complied with, (iii) if the outstanding Common Stock is at the time
listed on any stock exchange or included for quotation on an inter-dealer system, until the shares
to be delivered have been listed or included or authorized to be listed or included on such
exchange or system upon official notice of notice of issuance, (iv) if it might cause the Company
to issue or sell more shares of Common Stock that the Company is then legally entitled to issue or
sell, and (v) until all other legal matters in connection with the issuance and delivery of such
shares have been approved by counsel to the Company.
8. Execution of Documents. You hereby acknowledge and agree that the manner
selected by the Company by which you indicate your consent to your Grant Notice is also deemed to
be your execution of your Grant Notice and of this Agreement. You further agree that such manner of
indicating consent may be relied upon as your signature for establishing your execution of any
documents to be executed in the future in connection with your Award. This Restricted Stock Unit
Award Agreement shall be deemed to be signed by the Company and you
upon the respective signing by the Company and you of the Restricted Stock Unit Award Grant
Notice to which it is attached.
9. Non-transferability. Your Award is not transferable, except by will or by the laws
of descent and distribution. Notwithstanding the foregoing, by delivering written notice to the
Company, in a form satisfactory to the Company, you may designate a third party who, in the event
of your death, will thereafter be entitled to receive any distribution of shares pursuant to
Section 1 of this Agreement.
10. Award not a Service Contract. Your Award is not an employment or service
contract, and nothing in your Award will be deemed to create in any way whatsoever any obligation
on your part to continue in the employ of the Company or an Affiliate, or on the part of the
Company or an Affiliate to continue your employment. In addition, nothing in your Award will
obligate the Company or an Affiliate, their respective stockholders, Boards of Directors or
Employees to continue any relationship that you might have as a Employee, Director or Consultant
for the Company or an Affiliate.
11. Unsecured Obligation. Your Award is unfunded, and as a holder of a vested Award,
you will be considered an unsecured creditor of the Company with respect to the Companys
obligation, if any, to issue shares of Common Stock pursuant to this Agreement. You will not have
voting or any other rights as a stockholder of the Company with respect to the shares of Common
Stock awarded pursuant to this Agreement until such shares are issued to you pursuant to Section 1
of this Agreement. Upon such issuance, you will obtain full voting and other rights as a
stockholder of the Company. Nothing contained in this Agreement, and no action taken pursuant to
its provisions, will create or be construed to create a trust of any kind or a fiduciary
relationship between you and the Company or any other person.
12. Withholding Obligations.
(a) On or before the time you receive a distribution of shares pursuant to your Award, or at
any time thereafter as requested by the Company, you hereby authorize withholding from, at the
Companys election, vested shares of Common Stock distributable to you, payroll and any other
amounts payable to you and otherwise agree to make adequate provision for, as determined by the
Company, any sums required to satisfy the federal, state, local and foreign tax withholding
obligations of the Company or an Affiliate, if any, which arise in connection with your Award.
(b) Unless the tax withholding obligations of the Company or any Affiliate are satisfied, the
Company will have no obligation to issue a certificate for such shares of Common Stock.
13. Other Documents. You hereby acknowledge receipt or the right to receive a
document providing the information required by Rule 428(b)(1) promulgated under the Securities Act,
which includes the Plan prospectus. In addition, you acknowledge receipt of the Companys insider
trading policy.
14. Notices. All notices with respect to the Plan shall be in writing and shall be
hand delivered or sent by first class mail or reputable overnight delivery service, expenses
prepaid.
Notice may also be given by electronic mail or facsimile and shall be effective on the date
transmitted if confirmed within 24 hours thereafter by a signed original sent in a manner provided
in the preceding sentence. Notices to the Company or the Board shall be delivered or sent to GSIs
headquarters, 935 First Avenue, King of Prussia, PA 19406, to the attention of its Chief Financial
Officer and its General Counsel. Notices to any Participant or holder of shares of Common Stock
issued pursuant to an Award shall be sufficient if delivered or sent to such persons address as it
appears in the regular records of the Company or its transfer agent.
15. Headings. The headings of the Sections in this Agreement are inserted for
convenience only and will not be deemed to constitute a part of this Agreement or to affect the
meaning of this Agreement.
16. Amendment. This Agreement may be amended only by a writing executed by the
Company and you which specifically states that it is amending this Agreement. Notwithstanding the
foregoing, this Agreement may be amended solely by the Board (or appropriate committee thereof) by
a writing which specifically states that it is amending this Agreement, so long as a copy of such
amendment is delivered to you, and provided that no such amendment adversely affecting your rights
hereunder may be made without your written consent. Without limiting the foregoing, the Board (or
appropriate committee thereof) reserves the right to change, by written notice to you, the
provisions of this Agreement in any way it may deem necessary or advisable to carry out the purpose
of the grant as a result of any change in applicable laws or regulations or any future law,
regulation, ruling, or judicial decision, including with respect to compliance with Section 409A of
the Internal Revenue Code of 1986, as amended (the Code) and the regulations issued thereunder,
provided that any such change will be applicable only to rights relating to that portion of the
Award which is then subject to restrictions as provided herein.
17. Miscellaneous.
(a) The rights and obligations of the Company under your Award will be transferable by the
Company to any one or more persons or entities, and all covenants and agreements hereunder will
inure to the benefit of, and be enforceable by the Companys successors and assigns. Your rights
and obligations under your Award may not be assigned by you, except with the prior written consent
of the Company.
(b) The benefits provided under this Agreement are intended to be subject to a substantial
risk of forfeiture under Code Section 409A, and to be payable within the short term deferral
period under such statute following lapse of the applicable forfeiture conditions.
(c) You agree upon request to execute any further documents or instruments necessary or
desirable in the sole determination of the Company to carry out the purposes or intent of your
Award.
(d) You acknowledge and agree that you have reviewed your Award in its entirety, have had an
opportunity to obtain the advice of counsel prior to executing and accepting your Award and fully
understand all provisions of your Award.
18. Governing Plan Document. Your Award is subject to all the provisions of the Plan,
the provisions of which are hereby made a part of your Award, and is further subject to all
interpretations, amendments, rules and regulations which may from time to time be promulgated and
adopted pursuant to the Plan. In the event of any conflict between the provisions of your Award and
those of the Plan, the provisions of the Plan will control. The Board (or appropriate committee
thereof) will have the power to interpret the Plan and this Agreement and to adopt such rules for
the administration, interpretation, and application of the Plan as are consistent therewith and to
interpret or revoke any such rules. All actions taken and all interpretations and determinations
made by the Board (or appropriate committee thereof) will be final and binding upon you, the
Company, and all other interested persons. No member of the Board (or appropriate committee
thereof) will be personally liable for any action, determination, or interpretation made in good
faith with respect to the Plan or this Agreement.
19. Effect on Other Employee Benefit Plans. The value of the Award subject to this
Agreement will not be included as compensation, earnings, salaries, or other similar terms used
when calculating the Employees benefits under any employee benefit plan sponsored by the Company
or any subsidiary except as such plan otherwise expressly provides. The Company expressly reserves
its rights to amend, modify, or terminate any of the Companys or any subsidiarys employee benefit
plans.
20. Choice of Law. The interpretation, performance and enforcement of this Agreement
will be governed by the law of the state of Delaware without regard to such states conflicts of
laws rules.
21. Severability. If all or any part of this Agreement or the Plan is declared by any
court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity will not
invalidate any portion of this Agreement or the Plan not declared to be unlawful or invalid. Any
Section of this Agreement (or part of such a Section) so declared to be unlawful or invalid will,
if possible, be construed in a manner which will give effect to the terms of such Section or part
of a Section to the fullest extent possible while remaining lawful and valid.