As filed with the Securities and Exchange Commission on December 22, 2016
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________________
Lands’ End, Inc.
(Exact Name of Registrant as Specified in its Charter)
________________________
Delaware | 36-2512786 |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
1 Lands’ End Lane Dodgeville, Wisconsin | 53595 |
(Address of Principal Executive Offices) | (Zip Code) |
Sign-On Nonqualified Stock Option Agreement between Lands’ End, Inc. and Jerome S. Griffith
Sign-On Restricted Stock Unit Agreement between Lands’ End, Inc. and Jerome S. Griffith
(Full title of plans)
Dorian R. Williams
Senior Vice President, General Counsel and Corporate Secretary
1 Lands’ End Lane
Dodgeville, Wisconsin 53595
(Name and address of agent for service)
(608) 935-9341
(Telephone number, including area code, of agent for service)
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer | ☐ | Accelerated filer | ☒ | |||
Non-accelerated filer | ☐ (Do not check if a smaller reporting company) | Smaller reporting company | ☐ | |||
________________________
CALCULATION OF REGISTRATION FEE
Title of securities to be registered | Amount to be registered (1) | Proposed maximum offering price per share (2) | Proposed maximum aggregate offering price (2) | Amount of registration fee |
Common Stock, $0.01 par value per share | 294,118(3) | $16.90 | $4,970,594.20 | $576.09 |
Common Stock, $0.01 par value per share | 117,647(4) | $16.90 | $1,988,234.30 | $230.44 |
Total | 411,765 | $16.90 | $6,958,828.50 | $806.53 |
(1) | This registration statement covers an aggregate of 411,765 shares of Lands’ End, Inc.’s common stock, $0.01 par value per share (“Common Stock”) that may be issued by the Registrant pursuant to the agreements described herein. Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers an indeterminate number of additional shares of Common Stock with respect to the shares registered herewith issuable as a result of stock splits, stock dividends or similar transactions. |
(2) | Calculated solely for the purpose of determining the amount of registration fee due for this filing in accordance with Rule 457(c) and Rule 457(h) of the Securities Act. The proposed maximum offering price per share and the proposed maximum aggregate offering price are based upon the average of the high and low prices of Common Stock, as reported on The NASDAQ Stock Market on December 16, 2016. |
(3) | Represents shares of the Registrant’s common stock issuable pursuant to a nonqualified stock option. |
(4) | Represents shares of the Registrant’s common stock issuable upon settlement of Restricted Stock Units. |
EXPLANATORY NOTE
This Registration Statement on Form S-8 (the “Registration Statement”) filed by Lands’ End, Inc. (the “Company” or the “Registrant”) registers 411,765 shares of the Company’s common stock, par value $0.01 (the “Shares”), 294,118 of which may be issuable pursuant to the Sign-On Nonqualified Stock Option Agreement to be entered into by the Registrant and Jerome S. Griffith, and 117,647 of which may be issuable pursuant to the Sign-On Restricted Stock Unit Agreement to be entered into by the Registrant and Jerome S. Griffith (collectively, the “Awards”), each of which is intended to induce Mr. Griffith with an incentive to become and remain an employee of the Company and increase his interest in the success of the Company. The grants thereunder are employment inducement grants as described in Rule 5635(c)(4) of the NASDAQ Stock Market Listing Rules. The Awards, although not granted pursuant to the Lands’ End, Inc. 2014 Stock Plan (As Amended and Restated) (the “Plan”) are, except as expressly set forth in each Agreement, subject to the terms and provisions of the Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
In accordance with Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), and the instructional note to Part I of Form S-8, this Registration Statement omits the information specified in Part I of Form S-8. The documents containing the information specified in Part I of Form S-8 will be sent or given to the employee as specified by Rule 428(b)(1) under the Securities Act. Such documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange Commission (the “Commission”) by the Registrant are incorporated herein by reference:
(a) | the Registrant’s Annual Report on Form 10-K for the fiscal year ended January 29, 2016, filed with the Commission on April 1, 2016; |
(b) | the portions of the Registrant’s Definitive Proxy Statement on Schedule 14A filed on April 1, 2016 that are incorporated by reference into Part III of the Registrant’s Annual Report on Form 10-K for the fiscal year ended January 29, 2016; |
(c) | the Registrant’s Quarterly Report on Form 10-Q for the quarterly period ended April 29, 2016, filed with the Commission on June 2, 2016; |
(d) | the Registrant’s Quarterly Report on Form 10-Q for the quarterly period ended July 29, 2016, filed with the Commission on September 1, 2016; |
(e) | the Registrant’s Quarterly Report on Form 10-Q for the quarterly period ended October 28, 2016, filed with the Commission on December 1, 2016; |
(f) | the Registrant’s Current Reports on Form 8-K filed with the Commission on April 29, 2016, May 12, 2016, May 20, 2016, July 14, 2016, September 26, 2016, and December 19, 2016; |
(g) | all other reports of the Registrant filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), since the end of the fiscal year covered by the document referred to in clause (a) of this Item 3; and |
(h) | the description of the Registrant’s common stock, $0.01 par value per share (“Common Stock”), contained in the section captioned “Description of Our Capital Stock” in the Registrant’s Registration Statement on Form 10 (File No. 001-09769) filed with the Commission under Section 12(b) of the Exchange Act, including any amendment or report filed for the purpose of updating such description. |
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The documents incorporated by reference into this Registration Statement may include, as exhibits, agreements between us and third parties that contain representations and warranties and other agreements and undertakings by us and third parties. These representations and warranties, agreements and undertakings have been made as of specific dates, may be subject to important qualifications and limitations agreed to by the parties to the agreements in connection with negotiating the terms of the agreements, and have been included in the agreements for the purpose of allocating risk between the parties to the agreements rather than to establish matters as facts. All such representations and warranties, agreements, and undertakings have been made solely for the benefit of the parties to the agreements and should not be relied upon by any other person.
In addition, all documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (other than the portions of those documents not deemed to be filed) subsequent to the effective date of this Registration Statement, but prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in the Registration Statement and to be part thereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Pursuant to the General Corporation Law of the State of Delaware (the “DGCL”), a corporation may indemnify any person who was or is a party to or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation) by reason of the fact that such person is or was a director, officer, employee or agent of such corporation, or serving at the request of such corporation in such capacity for another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding, if such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of such corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
The DGCL also permits a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, for expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit, except that no indemnification shall be made if such person failed to act in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation or if, in respect of any claim, issue or matter, such person shall have been adjudged to be liable to the corporation unless the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper.
To the extent a present or former director or officer is successful in the defense of such an action, suit or proceeding, a corporation is required by the DGCL to indemnify such person for actual and reasonable expenses incurred thereby. Expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it is ultimately determined that such person is not entitled to be so indemnified. Such expenses (including attorneys’ fees) incurred by former directors and officers or other employees and agents of the corporation or by persons serving at the request of the corporation as directors, officers, employees or agents of another corporation, partnership, joint venture, trust or other enterprise may be so paid upon such terms and conditions, if any, as the corporation deems appropriate.
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The DGCL provides that the indemnification described above shall not be deemed exclusive of other indemnification that may be granted by a corporation pursuant to its by-laws, disinterested directors’ vote, stockholders’ vote, and agreement or otherwise.
The DGCL also provides corporations with the power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation in a similar capacity for another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against him or her and incurred by such person in any such capacity, or arising out of his or her status as such, whether or not the corporation would have the power to indemnify him or her against such liability as described above.
Each of the Amended and Restated Certificate of Incorporation of Lands’ End, Inc. (the “Certificate of Incorporation”) and the Amended and Restated Bylaws of Lands’ End, Inc. (the “Bylaws”) requires the Registrant to indemnify and hold harmless, to the fullest extent permitted by applicable law, any director or officer of the Registrant who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the Registrant or, while a director or officer of the Registrant, is or was serving at the request of the Registrant as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans (each, a “Proceeding”), against all liability, loss suffered and expenses (including attorney’s fees) reasonably incurred by such person. In general, the Registrant will indemnify such a director or officer who initiates an action, suit or proceeding only if such action, suit or proceeding was authorized by the board of directors of the Registrant.
Each of the Certificate of Incorporation and the Bylaws further requires the Registrant, to the extent not prohibited under applicable law, to pay the expenses (including attorneys’ fees) incurred by a director or officer of the Registrant in defending any Proceeding in advance of its final disposition; provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the Proceeding shall be made only upon receipt of an undertaking by such director or officer to repay all amounts advanced if it should be ultimately determined he or she is not entitled to be indemnified under the terms of the Certificate of Incorporation or the Bylaws, as the case may be, or otherwise.
Pursuant to the Certificate of Incorporation, a director of the Company is not liable to the Company or its stockholders for monetary damages for a breach of fiduciary duty as a director, except to the extent prohibited by the DGCL, which currently provides that such limitation of liability is prohibited if (i) such director has breached his or her duty of loyalty to the Company or its stockholders, (ii) such director’s acts or omissions are not in good faith or involve intentional misconduct or a knowing violation of law, (iii) such director derived an improper personal benefit from the transaction at issue, or (iv) required by Section 174 of the DGCL.
The foregoing statements are subject to the detailed provisions of Sections 102(b)(7) and 145 of the DGCL and the full text of the Certificate of Incorporation and the Bylaws. The indemnification rights conferred by the Registrant are not exclusive of any other right to which persons seeking indemnification may be entitled under any statute, agreement or vote of stockholders or disinterested directors or otherwise.
The Registrant maintains directors’ and officers’ liability insurance for the benefit of its directors and officers in amounts that it believes are reasonable under the circumstances.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
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(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Dodgeville, Wisconsin, on December 22, 2016.
.
LANDS’ END, INC. | ||||
By: | /s/ Dorian R. Williams | |||
Name: | Dorian R. Williams | |||
Title: | Senior Vice President, General Counsel and Corporate Secretary | |||
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
Signature | Title | Date | ||
* | Co-Interim Chief Executive Officer, Executive Vice President and Chief Merchandising and Design Officer (Co-Principal Executive Officer) | December 22, 2016 | ||
Joseph M. Boitano | ||||
* | Co-Interim Chief Executive Officer, Executive Vice President, Chief Operating Officer, Chief Financial Officer and Treasurer (Co-Principal Executive Officer and Principal Financial Officer) | December 22, 2016 | ||
James F. Gooch | ||||
* | Vice President, Controller and Chief Accounting Officer (Principal Accounting Officer) | December 22, 2016 | ||
Bernard L. McCracken | ||||
* | Director, Chairman of the Board of Directors | December 22, 2016 | ||
Josephine Linden | ||||
* | Director | December 22, 2016 | ||
Robert Galvin | ||||
* | Director | December 22, 2016 | ||
Elizabeth Leykum | ||||
* | Director | December 22, 2016 | ||
John T. McClain | ||||
* | Director | December 22, 2016 | ||
Jignesh Patel | ||||
* | Director | December 22, 2016 | ||
Jonah Staw | ||||
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*By: | /s/ Dorian R. Williams | |||||
Dorian R. Williams | ||||||
Attorney-in Fact | ||||||
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EXHIBIT INDEX | ||||
Exhibit | Description | |||
4.1 | Amended and Restated Certificate of Incorporation of Lands’ End, Inc. (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on March 20, 2014 (File No. 001-09769)). | |||
4.2 | Amended and Restated Bylaws of Lands’ End, Inc. (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on April 8, 2014 (File No. 001-09769)). | |||
5.1 | Opinion of Dorian R. Williams, Esq.* | |||
23.1 | Consent of Deloitte & Touche LLP.* | |||
23.2 | Consent of Dorian R. Williams, Esq. (included in Exhibit 5.1).* | |||
24 | Powers of Attorney.* | |||
99.1 | Lands’ End, Inc. 2014 Stock Plan (As Amended and Restated) (incorporated by reference to Exhibit 10.11 to the Company’s Annual Report on Form 10-K for the fiscal year ended January 30, 2015 (File No. 001-09769)). | |||
99.2 | Form of Sign-On Nonqualified Stock Option Agreement between Lands’ End, Inc. and Jerome S. Griffith.* | |||
99.3 | Form of Sign-On Restricted Stock Unit Agreement between Lands’ End, Inc. and Jerome S. Griffith.* | |||
* Filed herewith. | ||||
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EXHIBIT 5.1
LANDS’ END, INC
1 Lands’ End Lane
Dodgeville, Wisconsin 53595
Dorian R. Williams | ||
Senior Vice President, | ||
General Counsel, and Corporate Secretary | ||
December 22, 2016 | ||
Lands' End, Inc. | ||
1 Lands' End Lane | ||
Dodgeville, Wisconsin 53595 | ||
Ladies and Gentlemen:
I have acted as counsel for Lands’ End, Inc., a Delaware corporation (the “Company”), in connection with the Company’s registration statement on Form S-8 (the “Registration Statement”) to be filed by the Company with the Securities and Exchange Commission (the “Commission”) on or about December 22, 2016 in connection with the registration under the Securities Act of 1933, as amended (the “Securities Act”), of an aggregate of 411,765 shares (the “Shares”) of the Company’s common stock, $0.01 par value per share, subject to issuance by the Company (1) upon the exercise of a sign-on stock option to purchase up to 294,118 Shares granted pursuant to the Sign-On Nonqualified Stock Option Agreement to be entered into by the Company and Jerome S. Griffith (the “Option Agreement”), and (2) upon the settlement of sign-on restricted stock units for 117,647 Shares to be granted pursuant to the Sign-On Restricted Stock Unit Agreement to be entered into by the Company and Jerome S. Griffith (together with the Option Agreement, the “Award Agreements”). Each Award Agreement is intended to induce Mr. Griffith with an incentive to become and remain an employee of the Company and increase his interest in the success of the Company.
In such capacity, I have examined originals, or copies certified or otherwise identified to my satisfaction, of such records of the Company and of public officials and such other documents as I have deemed relevant and necessary as the basis for the opinion set forth below, including the Company’s Amended and Restated Certificate of Incorporation, the Company’s Amended and Restated Bylaws, minutes and records of the corporate proceedings of the Company, the forms of Award Agreement, and the Registration Statement and the exhibits thereto. In my examination, I have assumed the genuineness of all signatures, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to me as originals and the conformity to originals of all documents submitted to me as copies.
Based upon and subject to the foregoing qualifications, assumptions and limitations and the further limitations set forth below, I am of the opinion that the Shares have been duly authorized for issuance and when duly issued, sold and delivered in accordance with the terms of the applicable Award Agreement and in the manner and for the consideration stated in the applicable Award Agreement, will be validly issued, fully paid and non-assessable.
My opinions expressed above are subject to the qualification that I express no opinion as to the applicability of, compliance with, or effect of any laws except the General Corporation Law of the State of Delaware. This opinion is limited to the specific issues addressed herein, and no opinion may be inferred or implied beyond that expressly stated herein.
I hereby consent to the filing of this opinion as an exhibit to the Registration Statement, and I further consent to the use of my name in the Registration Statement and the prospectus that forms a part thereof. In giving these consents, I do not thereby admit that I am within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.
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I assume no obligation to revise or supplement this opinion after the date of effectiveness should the General Corporation Law of the State of Delaware be changed by legislative action, judicial decision or otherwise after the date hereof. This opinion is furnished to you in connection with the filing of the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act and Item 8 of Part II of Form S-8.
Sincerely, | ||||
/s/ Dorian R. Williams | ||||
Dorian R. Williams | ||||
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EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated April 1, 2016, (which report expresses an unqualified opinion and includes an explanatory paragraph related to the fact that the combined financial statements, constituting the periods prior to April 4, 2014, include the Lands’ End business of Sears Holdings Corporation and were derived from the consolidated financial statements and accounting records of Sears Holdings Corporation (“Holdings”) and include expense allocations for certain corporate functions historically provided by Holdings which may not be reflective of the actual expenses which would have been incurred if the Lands’ End business of Holdings operated as a separate entity apart from Holdings) relating to the consolidated and combined financial statements of Lands’ End, Inc. and subsidiaries, and the effectiveness of Lands’ End, Inc. and subsidiaries’ internal control over financial reporting, appearing in the Annual Report on Form 10-K of Lands’ End, Inc. for the fiscal year ended January 29, 2016.
/s/ DELOITTE & TOUCHE LLP | |
Davenport, Iowa | |
December 22, 2016 | |
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each of the undersigned, being a director or officer of LANDS’ END, INC., a Delaware corporation (the “Company”), does hereby constitute and appoint JAMES F. GOOCH, BERNARD L. MCCRACKEN and DORIAN R. WILLIAMS, with full power to each of them to act alone, as the true and lawful attorneys and agents of the undersigned, with full power of substitution and resubstitution to each of said attorneys, to execute, file, and deliver all instruments and generally to do all acts and things in all capacities which said attorneys and agents, or any of them, deem requisite, necessary or advisable to enable the Company to comply with the provisions of the Securities Act of 1933, as amended, (the “Securities Act”) and all requirements of the Securities and Exchange Commission in respect thereto, and any similar requirements of any state securities commission and any applicable securities exchange or securities self-regulatory organization, in connection with the registration under the Securities Act of (1) shares of common stock of the Company, $0.01 par value per share, for issuance pursuant to the Nonqualified Stock Option Agreement between the Company and Jerome S. Griffith, and (2) shares of common stock of the Company, $0.01 par value per share, for issuance pursuant to the Restricted Stock Unit Agreement between the Company and Jerome S. Griffith, including specifically, but without limitation of the general authority hereby granted, the power and authority to sign his or her name as a director or officer of the Company, as indicated below opposite his or her signature, to one or more registration statements on Form S-8 with respect to said shares of common stock (the “Registration Statement”), any amendment, post-effective amendment or supplement thereto, any prospectus or other document related to the Registration Statement, and any instruments, amendments, supplements or revisions to such prospectus or document; and each of the undersigned does hereby fully ratify and confirm all that said attorneys and agents, or any of them, or the substitute of any of them, shall do or cause to be done by virtue hereof.
This Power of Attorney may be signed in any number of counterparts, each of which shall constitute an original and all of which, taken together, shall constitute one Power of Attorney.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of Attorney as of this 19th day of December, 2016.
Signature | Title | |||
s/ Joseph M. Boitano | Co-Interim Chief Executive Officer, Executive Vice President and Chief Merchandising and Design Officer (Co-Principal Executive Officer) | |||
Joseph M. Boitano | ||||
/s/ James F. Gooch | Co-Interim Chief Executive Officer, Executive Vice President, Chief Operating Officer, Chief Financial Officer and Treasurer (Co-Principal Executive Officer and Principal Financial Officer) | |||
James F. Gooch | ||||
/s/ Bernard L. McCracken | Vice President, Controller and Chief Accounting Officer (Principal Accounting Officer) | |||
Bernard L. McCracken | ||||
/s/ Josephine Linden | Director, Chairman of the Board of Directors | |||
Josephine Linden | ||||
/s/ Robert Galvin | Director | |||
Robert Galvin | ||||
/s/ Elizabeth Leykum | Director | |||
Elizabeth Leykum | ||||
/s/ John T. McClain | Director | |||
John T. McClain | ||||
/s/ Jignesh Patel | Director | |||
Jignesh Patel | ||||
/s/ Jonah Staw | Director | |||
Jonah Staw | ||||
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EXHIBIT 99.2
LANDS’ END, INC.
SIGN-ON
NONQUALIFIED STOCK OPTION AGREEMENT
Name of Grantee: | Jerome S. Griffith | (the “Grantee”) | |||
No. of Nonqualified Stock Options: | 294,118 | ||||
Per Share Exercise Price of Nonqualified Stock Options: | $[closing price on Grant Date] | ||||
Grant Date: | [March 6, 2017] | (the “Grant Date”) | |||
WHEREAS, the Grantee is currently an employee of Lands’ End, Inc., a Delaware corporation (the “Company”);
WHEREAS, the Company desires to (i) induce the Grantee with an incentive to become and remain an employee of the Company and (ii) increase the Grantee’s interest in the success of the Company by granting nonqualified stock options (the “Options”) covering shares of common stock of the Company to the Grantee; and
WHEREAS, the Company desires to grant the Options, which grant is intended to constitute an employment inducement grant as described in Rule 5635(c)(4) of the NASDAQ Stock Market Listing Rules, pursuant to the terms of this Lands’ End, Inc. Stock Option Agreement (this “Agreement”).
NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree as follows:
1.Definitions; Incorporation of Plan Terms. The Options, although not granted pursuant to the Lands’ End, Inc. 2014 Stock Plan (As Amended and Restated) (the “Plan”) shall, except as expressly set forth in this Agreement, be subject to the terms and provisions of the Plan, which is incorporated herein by reference. The Grantee hereby acknowledges receipt of a copy of the Plan. All capitalized terms used but not defined herein have the definitions set forth in the Plan. The Company represents that the Options will be covered by an S-8.
2.Grant of Options. Subject to the provisions of this Agreement and the Plan, the Company hereby grants to the Grantee the Options specified above. Each Option represents the right to purchase one (1) share of the Company’s common stock, par value $0.01 per share (each, a “Share”), at the Exercise Price (defined below). The Options are intended to be nonqualified stock options and will not be treated as incentive stock options under Section 422 of the Internal Revenue Code of 1986, as amended.
3.Terms and Conditions.
(a)Exercise Price. The exercise price per Share with respect to the Options shall be $[ ], which is the Fair Market Value of a Share on the Grant Date.
(b)Option Term. Subject to earlier termination as provided herein, the Options shall expire on the tenth (10th) anniversary of the Grant Date (the “Expiration Date”).
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(c)Vesting.
(i)All of the Options shall initially be unvested. All of the Options shall be subject to the following vesting schedule, and, except as otherwise provided in this Section 2(c), if the Grantee terminates employment for any reason prior to any given Vesting Date identified below, the Grantee shall forfeit any unvested Options upon such termination of employment.
Vesting Date | Percentage of Option Vested | ||
March 6, 2018 | 25% | ||
March 6, 2019 | 25% | ||
March 6, 2020 | 25% | ||
March 6, 2021 | 25% | ||
(ii)If the Grantee’s employment is terminated by the Company for Cause (as defined in the Executive Severance Agreement by and between the Executive and the Company, dated December 19, 2016 (the “Severance Agreement”) or a resignation by the Grantee without Good Reason (as defined in the Severance Agreement), all of the unvested Options will be forfeit upon such termination of employment.
(iii)If the Grantee’s employment is terminated by the Company without Cause or by the Grantee with Good Reason or due to death or Disability (as defined in the Severance Agreement), any of the Options not previously vested shall vest in full on the date of such termination of employment.
(d)Termination.
(i) The Options (to the extent not otherwise forfeited) shall automatically terminate and shall become null and void, be unexercisable and be of no further force and effect upon the earliest of:
(A)The Expiration Date;
(B)The first anniversary of the date of the Grantee’s termination of employment due to death or Disability;
(C)The ninetieth (90th) day following the Grantee’s termination of employment without Cause or due to the Grantee’s resignation;
(D)The date of the Grantee’s termination of employment in the case of a termination for Cause.
4.Exercise. The Option may be exercised either for the total number of Shares vested, or for less than the total number of Shares subject to the vested Option. The Options may be exercised only by written notice delivered in accordance with, and payment of the Exercise Price may be made pursuant to any of the methods described in, Section 8.4(b) of the Plan. Upon receipt of notice of exercise and full payment of the aggregate consideration for the Shares in respect of which the Option is being exercised, the Company, or the Company’s agent, shall take such action as may be necessary to effect the transfer to the Grantee the number of Shares as to which the exercise was effective.
5.Taxes.
(a)This Section 5(a) applies only to (i) all Grantees who are U.S. employees, and (ii) to those Grantees who are employed by a Subsidiary of the Company that is obligated under applicable local law to withhold taxes with respect to the exercise of the Options. The Grantee shall pay to the Company or a designated Subsidiary, promptly upon request, and in any event at the time the Grantee recognizes taxable income with respect
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to the Options, an amount equal to the taxes the Company determines it is required to withhold under applicable tax laws with respect to the Options. Consistent with the provisions set forth in Section 14.4 of the Plan, the Grantee may satisfy the foregoing requirement by making a payment to the Company in cash or by delivering already owned unrestricted Shares or by having the Company withhold a number of Shares in which the Grantee would otherwise be issued upon exercise of the Options, in each case, having a value equal to the minimum amount of tax required to be withheld. Such Shares shall be valued at Fair Market Value on the date as of which the amount of tax to be withheld is determined.
(b)The Grantee acknowledges that the tax laws and regulations applicable to the Options and the disposition of the shares following the settlement of Options are complex and subject to change.
6.Protections Against Violations of Agreement. No purported sale, assignment, mortgage, hypothecation, transfer, pledge, encumbrance, gift, transfer in trust (voting or other) or other disposition of, or creation of a security interest in or lien on, any of the Options by any holder thereof in violation of the provisions of this Agreement or the Certificate of Incorporation or the Bylaws of the Company, will be valid, and the Company will not transfer any shares resulting from the exercise of any of the Options on its books nor will any of such shares be entitled to vote, nor will any dividends be paid thereon, unless and until there has been full compliance with such provisions to the satisfaction of the Company. The foregoing restrictions are in addition to and not in lieu of any other remedies, legal or equitable, available to enforce such provisions.
7.No Rights as a Shareholder. The Grantee has no right to receive or accrue any dividends or dividend equivalents with respect to the Options. The Grantee shall not possess the right to vote the shares underlying the Options until the Options have been exercised in accordance with the provisions of this Agreement and the Plan, the Grantee has paid the full aggregate Exercise Price for the number of Shares in respect of which the Option was exercised and made arrangements acceptable to the Company for the payment of applicable withholding taxes and the Company has issued and delivered the Shares to the Grantee.
8.Compliance with Legal Requirements. The grant of the Options, and any other obligations of the Company under this Agreement, shall be subject to all applicable federal, state, and foreign laws, rules, and regulations and to such approvals by any regulatory or governmental agency as may be required. The Committee, in its sole discretion, may postpone the issuance or delivery of Shares as the Committee may consider appropriate and may require the Grantee to make such representations and furnish such information as it may consider appropriate in connection with the issuance or delivery of the Shares in compliance with applicable laws, rules, and regulations.
9.Survival of Terms. This Agreement shall apply to and bind the Grantee and the Company and their respective permitted assignees and transferees, heirs, legatees, executors, administrators and legal successors.
10.Notices. All notices and other communications provided for herein shall be in writing and shall be delivered by hand or sent by certified or registered mail, return receipt requested, postage prepaid, addressed, if to the Grantee, to the Grantee’s attention at the mailing address the Grantee shall have specified to the Company in writing and, if to the Company, to the Company’s office at 1 Lands’ End Lane, Dodgeville, Wisconsin 53595, Attention: General Counsel (or to such other address as the Company shall have specified to the Grantee in writing). All such notices shall be conclusively deemed to be received and shall be effective, if sent by hand delivery, upon receipt, or if sent by registered or certified mail, on the fifth (5th) day after the day on which such notice is mailed.
11.Waiver. The waiver by either party of compliance with any provision of this Agreement by the other party shall not operate or be construed as a waiver of any other provision of this Agreement, or of any subsequent breach by such party of a provision of this Agreement.
12.Authority of the Administrator. The Committee shall have full authority to interpret and construe the terms of the Plan and this Agreement. The determination of the Committee as to any such matter of
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interpretation or construction shall be final, binding and conclusive. Notwithstanding the foregoing, any classification of employment termination shall be resolved in accordance with the terms of the Severance Agreement.
13.Representations. The Grantee has reviewed with the Grantee’s own tax advisors the applicable tax (U.S., foreign, state, and local) consequences of the transactions contemplated by this Agreement. The Grantee is relying solely on such advisors and not on any statements or representations of the Company or any of its agents. The Grantee understands that the Grantee (and not the Company) shall be responsible for any tax liability that may arise as a result of the transactions contemplated by this Agreement.
14.Entire Agreement; Governing Law. This Agreement and the Plan and the other related agreements expressly referred to herein set forth the entire agreement and understanding between the parties hereto and supersedes all prior agreements and understandings relating to the subject matter hereof. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same agreement. The headings of sections and subsections herein are included solely for convenience of reference and shall not affect the meaning of any of the provisions of this Agreement. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Wisconsin.
15.Clawback Policy. The Options are subject to the terms of the Severance Agreement, and, to the extent required by applicable law, any Company recoupment, clawback, or similar policy related to financials as it may be in effect from time to time, any of which could, in certain circumstances, require repayment or forfeiture of the Options or any Shares or other cash or property received with respect to the Options (including any value received from a disposition of the Shares acquired upon exercise of the Options).
16.Severability. Should any provision of this Agreement be held by a court of competent jurisdiction to be unenforceable, or enforceable only if modified, such holding shall not affect the validity of the remainder of this Agreement, the balance of which shall continue to be binding upon the parties hereto with any such modification (if any) to become a part hereof and treated as though contained in this original Agreement. Moreover, if one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to scope, activity, subject or otherwise so as to be unenforceable, in lieu of severing such unenforceable provision, such provision or provisions shall be construed by the appropriate judicial body by limiting or reducing it or them, so as to be enforceable to the maximum extent compatible with the applicable law as it shall then appear, and such determination by such judicial body shall not affect the enforceability of such provisions or provisions in any other jurisdiction.
17.Amendments; Construction. The Committee may amend the terms of this Agreement prospectively or retroactively at any time, but no such amendment shall impair the rights of the Grantee hereunder without the Grantee’s consent. Headings to Sections of this Agreement are intended for convenience of reference only, are not part of the Options and shall have no effect on the interpretation hereof.
18.Acceptance. The Grantee hereby acknowledges receipt of a copy of the Plan and this Agreement. The Grantee has read and understands the terms and provision hereof and thereof, and accepts the Options subject to all the terms and conditions of the Plan and this Agreement. The Grantee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee upon any questions arising under this Agreement.
19.Miscellaneous.
(a)No Rights to Grants or Continued Employment. The Grantee acknowledges that the award granted under this Agreement is not an employment right, and is being granted at the sole discretion of the Committee. The Grantee shall not have any claim or right to receive grants of awards under the Plan. Neither the Plan nor this Agreement, nor any action taken or omitted to be taken hereunder or thereunder, shall be deemed to create or confer on the Grantee any right to be retained as an employee of the Company or any Subsidiary thereof,
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or to interfere with or to limit in any way the right of the Company or any Subsidiary thereof to terminate the employment of the Grantee at any time.
(b)No Restriction on Right of Company to Effect Corporate Changes. Neither the Plan nor this Agreement shall affect in any way the right or power of the Company or its stockholders to make or authorize any or all adjustments, recapitalizations, reorganizations, or other changes in the Company’s capital structure or its business, or any merger or consolidation of the Company, or any issue of stock or of options, warrants or rights to purchase stock or of bonds, debentures, preferred, or prior preference stocks whose rights are superior to or affect the Shares or the rights thereof or which are convertible into or exchangeable for Shares, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of the assets or business of the Company, or any other corporate act or proceeding, whether of a similar character or otherwise. In such event, any adjustment shall be made in accordance with Section 12 of the Plan.
(c)Assignment. The Company shall have the right to assign any of its rights and to delegate any of its duties under this Agreement to any of its Affiliates.
THIS AGREEMENT SHALL BE NULL AND VOID AND UNENFORCEABLE BY THE GRANTEE UNLESS SIGNED AND DELIVERED TO THE COMPANY NOT LATER THAN FIVE (5) DAYS SUBSEQUENT TO THE GRANT DATE.
BY SIGNING THIS AGREEMENT, THE GRANTEE IS HEREBY CONSENTING TO THE PROCESSING AND TRANSFER OF THE GRANTEE’S PERSONAL DATA BY THE COMPANY TO THE EXTENT NECESSARY TO ADMINISTER AND PROCESS THE AWARDS GRANTED UNDER THIS AGREEMENT.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly authorized officer and the Grantee has executed this Agreement, both as of the day and year first above written.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company and the Grantee have executed this Nonqualified Stock Option Agreement as of the date first above written.
COMPANY | |||
LANDS’ END, INC. | |||
By: | |||
Name: Kelly Ritchie | |||
Title: Senior Vice President, Employee and Customer Services | |||
GRANTEE | |||
By: | |||
Name: Jerome S. Griffith | |||
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EXHIBIT 99.3
LANDS’ END, INC.
SIGN-ON
RESTRICTED STOCK UNIT AGREEMENT
Name of Grantee: | Jerome S. Griffith | (the “Grantee”) | |||
No. of Restricted Stock Units: | 117,647 | ||||
Issuance Date: | [March 6, 2017] | (the “Issuance Date”) | |||
WHEREAS, the Grantee is currently an employee of Lands’ End, Inc., a Delaware corporation (the “Company”);
WHEREAS, the Company desires to (i) induce the Grantee with an incentive to become and remain an employee of the Company and (ii) increase the Grantee’s interest in the success of the Company by granting restricted stock units (the “Restricted Stock Units”) payable in the form of shares of common stock of the Company to the Grantee; and
WHEREAS, the Company desires to grant the Restricted Stock Units, which grant is intended to constitute an employment inducement grant as described in Rule 5635(c)(4) of the NASDAQ Stock Market Listing Rules, pursuant to the terms of this Lands’ End, Inc. Restricted Stock Unit Agreement (this “Agreement”).
NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree as follows:
1. Definitions; Incorporation of Plan Terms. The Restricted Stock Units, although not granted pursuant to the Lands’ End, Inc. 2014 Stock Plan (As Amended and Restated) (the “Plan”) shall, except as expressly set forth in this Agreement, be subject to the terms and provisions of the Plan, which is incorporated herein by reference. The Grantee hereby acknowledges receipt of a copy of the Plan. All capitalized terms used but not defined herein have the definitions set forth in the Plan.
2. Grant of Restricted Stock Units.
(a) Subject to the provisions of this Agreement and the Plan, the Company hereby grants and issues to the Grantee the Restricted Stock Units specified above. The Company shall credit to a bookkeeping account (the “Account”) maintained by the Company, or a third party on behalf of the Company, for the Grantee’s benefit the Restricted Stock Units, each of which shall be deemed to be the equivalent of one share of the Company’s common stock, par value $.01 per share (each, a “Share”). The Company represents that the Restricted Stock Units are covered by a Form S-8.
(b) If and whenever any cash dividends are declared on the Shares, on the date such dividend is paid, the Company will credit to the Account an amount which shall be equal to the amount of such dividend with respect to such Shares. Such amount shall be subject to the vesting and forfeiture provisions contained in Section 3(a) below. The amount shall only be payable in cash and shall be payable at the same time as amounts are otherwise payable under this Agreement.
(c) If and whenever the Company declares and pays a dividend or distribution on the Shares in the form of additional shares, or there occurs a forward split of Shares, then a number of additional Restricted Stock Units shall be credited to the Account as of the payment date for such dividend or distribution or forward split equal to (i) the total number of Restricted Stock Units credited to the Account on the record date for such dividend or distribution or split (other than previously settled or forfeited Restricted Stock Units), multiplied by (ii) the number of additional Shares actually paid as a dividend or distribution or issued in such split in respect of each outstanding Share. The additional Restricted Stock Units shall be or become vested to the same extent as the Restricted Stock Units that resulted in the crediting of such additional Restricted Stock Units.
3. Terms and Conditions.
(a) Vesting.
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(i) All of the Restricted Stock Units shall initially be unvested. All Restricted Stock Units shall be subject to the following vesting schedule and, except as otherwise provided in this Section 3(a) below, if a Grantee terminates employment for any reason prior to any given Vesting Date identified below, such Grantee shall forfeit any unvested Restricted Stock Units upon such termination of employment:
Vesting Date | Percentage of Restricted Stock Unit Vested | ||
March 6, 2018 | 25% | ||
March 6, 2019 | 25% | ||
March 6, 2020 | 25% | ||
March 6, 2021 | 25% | ||
(ii) If the Grantee’s employment terminates due to a termination by the Company for Cause (as defined in the Grantee’s Executive Severance Agreement, by and between the Grantee and the Company, dated December 19, 2016 (the “Severance Agreement”)) or a resignation by the Grantee without Good Reason (as defined in the Severance Agreement), all of the unvested Restricted Stock Units will be forfeit upon such termination of employment.
(iii) If the Grantee’s employment is terminated by the Company without Cause, by the Executive with Good Reason or due to death or Disability (as defined in the Severance Agreement), 50% of any of the Restricted Stock Units not previously vested shall vest in full on the date of such termination of employment; provided that, if any such termination occurs after March 6, 2020, then the remaining Restricted Stock Units shall vest in full on the date of such termination of employment.
(b) Settlement. Restricted Stock Units not previously forfeited shall be settled within thirty (30) days after the applicable Date of Vesting under Section 3(a) by delivery of one Share for each Restricted Stock Unit being settled.
4. Taxes.
(a) This Section 4(a) applies only to (i) all Grantees who are U.S. employees, and (ii) to those Grantees who are employed by a Subsidiary of the Company that is obligated under applicable local law to withhold taxes with respect to the settlement of the Restricted Stock Units. Such Grantee shall pay to the Company or a designated Subsidiary, promptly upon request, and in any event at the time the Grantee recognizes taxable income with respect to the Restricted Stock Units, an amount equal to the taxes the Company determines it is required to withhold under applicable tax laws with respect to the Restricted Stock Units. Consistent with the provisions set forth in Section 14.4 of the Plan, the Grantee may satisfy the foregoing requirement by making a payment to the Company in cash or by delivering already owned unrestricted Shares or by having the Company withhold a number of Shares in which the Grantee would otherwise become vested under this Agreement (which shares shall be withheld prior to delivery of shares issued following any vesting date), in each case, having a value equal to the minimum amount of tax required to be withheld. Such Shares shall be valued at their Fair Market Value on the date as of which the amount of tax to be withheld is determined.
(b) The Grantee acknowledges that the tax laws and regulations applicable to the Restricted Stock Units and the disposition of the shares following the settlement of Restricted Stock Units are complex and subject to change.
5. Protections Against Violations of Agreement. No purported sale, assignment, mortgage, hypothecation, transfer, pledge, encumbrance, gift, transfer in trust (voting or other) or other disposition of, or creation of a security interest in or lien on, any of the Restricted Stock Units by any holder thereof in violation of the provisions of this Agreement or the Certificate of Incorporation or the Bylaws of the Company, will be valid, and the Company will not transfer any shares resulting from the settlement of Restricted Stock Units on its books nor will any of such shares be entitled to vote, nor will any dividends be paid thereon, unless and until there has been full compliance with such provisions to the satisfaction of the Company. The foregoing restrictions are in addition to and not in lieu of any other remedies, legal or equitable, available to enforce such provisions.
6. Rights as a Stockholder. The Grantee has no right to receive or accrue any dividends or dividend equivalents with respect to the Restricted Stock Units. The Grantee shall not possess the right to vote the shares underlying the Restricted Stock Units until the Restricted Stock Units have settled in accordance with the provisions of this Agreement and the Plan.
7. Survival of Terms. This Agreement shall apply to and bind the Grantee and the Company and their respective permitted assignees and transferees, heirs, legatees, executors, administrators and legal successors.
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8. Notices. All notices and other communications provided for herein shall be in writing and shall be delivered by hand or sent by certified or registered mail, return receipt requested, postage prepaid, addressed, if to the Grantee, to the Grantee’s attention at the mailing address as the Grantee shall have specified to the Company in writing and, if to the Company, to the Company’s office at 1 Lands’ End Lane, Dodgeville, Wisconsin 53595, Attention: General Counsel (or to such other address as the Company shall have specified to the Grantee in writing). All such notices shall be conclusively deemed to be received and shall be effective, if sent by hand delivery, upon receipt, or if sent by registered or certified mail, on the fifth (5th) day after the day on which such notice is mailed.
9. Waiver. The waiver by either party of compliance with any provision of this Agreement by the other party shall not operate or be construed as a waiver of any other provision of this Agreement, or of any subsequent breach by such party of a provision of this Agreement.
10. Authority of the Administrator. The Committee shall have full authority to interpret and construe the terms of the Plan and this Agreement. The determination of the Committee as to any such matter of interpretation or construction shall be final, binding and conclusive. Notwithstanding the foregoing, any classification of employment termination shall be resolved in accordance with the terms of the Severance Agreement.
11. Representations. The Grantee has reviewed with the Grantee’s own tax advisors the applicable tax (U.S., foreign, state, and local) consequences of the transactions contemplated by this Agreement. The Grantee is relying solely on such advisors and not on any statements or representations of the Company or any of its agents. The Grantee understands that the Grantee (and not the Company) shall be responsible for any tax liability that may arise as a result of the transactions contemplated by this Agreement.
12. Entire Agreement; Governing Law. This Agreement and the Plan and the other related agreements expressly referred to herein set forth the entire agreement and understanding between the parties hereto and supersedes all prior agreements and understandings relating to the subject matter hereof. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same agreement. The headings of sections and subsections herein are included solely for convenience of reference and shall not affect the meaning of any of the provisions of this Agreement. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Wisconsin.
13. Clawback Policy. The Restricted Stock Units are subject to the terms of the Severance Agreement, and, to the extent required by applicable law, any Company recoupment, clawback, or similar policy related to financials as it may be in effect from time to time, any of which could, in certain circumstances, require repayment or forfeiture of the Restricted Stock Units or any Shares or other cash or property received with respect to the Restricted Stock Units (including any value received from a disposition of the Shares acquired upon exercise of the Restricted Stock Units).
14. Severability. Should any provision of this Agreement be held by a court of competent jurisdiction to be unenforceable, or enforceable only if modified, such holding shall not affect the validity of the remainder of this Agreement, the balance of which shall continue to be binding upon the parties hereto with any such modification (if any) to become a part hereof and treated as though contained in this original Agreement. Moreover, if one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to scope, activity, subject or otherwise so as to be unenforceable, in lieu of severing such unenforceable provision, such provision or provisions shall be construed by the appropriate judicial body by limiting or reducing it or them, so as to be enforceable to the maximum extent compatible with the applicable law as it shall then appear, and such determination by such judicial body shall not affect the enforceability of such provisions or provisions in any other jurisdiction.
15. Amendments; Construction. The Committee may amend the terms of this Agreement prospectively or retroactively at any time, but no such amendment shall impair the rights of the Grantee hereunder without the Grantee’s consent. Headings to Sections of this Agreement are intended for convenience of reference only, are not part of this Restricted Stock Units and shall have no effect on the interpretation hereof.
16. Acceptance. The Grantee hereby acknowledges receipt of a copy of the Plan and this Agreement. The Grantee has read and understand the terms and provision thereof, and accepts the shares of Restricted Stock Units subject to all the terms and conditions of the Plan and this Agreement. The Grantee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee upon any questions arising under this Agreement.
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17. Miscellaneous.
(a) No Rights to Grants or Continued Employment. The Grantee acknowledges that the award granted under this Agreement is not an employment right, and is being granted at the sole discretion of the Committee. The Grantee shall not have any claim or right to receive grants of awards under the Plan. Neither the Plan nor this Agreement, nor any action taken or omitted to be taken hereunder or thereunder, shall be deemed to create or confer on the Grantee any right to be retained as an employee of the Company or any Subsidiary thereof, or to interfere with or to limit in any way the right of the Company or any Subsidiary thereof to terminate the employment of the Grantee at any time.
(b) No Restriction on Right of Company to Effect Corporate Changes. Neither the Plan nor this Agreement shall affect in any way the right or power of the Company or its stockholders to make or authorize any or all adjustments, recapitalizations, reorganizations, or other changes in the Company’s capital structure or its business, or any merger or consolidation of the Company, or any issue of stock or of options, warrants or rights to purchase stock or of bonds, debentures, preferred, or prior preference stocks whose rights are superior to or affect the Shares or the rights thereof or which are convertible into or exchangeable for Shares, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of the assets or business of the Company, or any other corporate act or proceeding, whether of a similar character or otherwise. In such event, any adjustment shall be made in accordance with Section 12 of the Plan.
(c) Assignment. The Company shall have the right to assign any of its rights and to delegate any of its duties under this Agreement to any of its Affiliates.
18. Code Section 409A. Notwithstanding anything in this Agreement to the contrary, the receipt of any benefits under this Agreement is intended to be exempt from the provisions of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) pursuant to the short term deferral exception. The Restricted Stock Units granted hereunder shall not be deferred, accelerated, extended, paid out or modified in a manner that would result in the application of Section 409A of the Code to such grants.
THIS AGREEMENT SHALL BE NULL AND VOID AND UNENFORCEABLE BY THE GRANTEE UNLESS SIGNED AND DELIVERED TO THE COMPANY NOT LATER THAN FIVE (5) DAYS SUBSEQUENT TO THE ISSUANCE DATE.
BY SIGNING THIS AGREEMENT, THE GRANTEE IS HEREBY CONSENTING TO THE PROCESSING AND TRANSFER OF THE GRANTEE’S PERSONAL DATA BY THE COMPANY TO THE EXTENT NECESSARY TO ADMINISTER AND PROCESS THE AWARDS GRANTED UNDER THIS AGREEMENT.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly authorized officer and the Grantee has executed this Agreement, both as of the day and year first above written.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company and the Grantee have executed this Restricted Stock Unit Agreement as of the date first above written.
COMPANY | |||||
LANDS’ END, INC. | |||||
By: | |||||
Name: Kelly Ritchie | |||||
Title: Senior Vice President, Employee and Customer Services | |||||
GRANTEE | |||||
By: | |||||
Name: Jerome S. Griffith | |||||
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