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These excerpts taken from the ROST 10-Q filed Jun 10, 2009. Acquiror”), may, without the consent of
the Participant, assume or continue in full force and effect the Company’s
rights and obligations under the Award or substitute for the Award a
substantially equivalent award for the Acquiror’s stock. For purposes of this
Section, the Award shall be deemed assumed if, following the Change in Control,
the Award confers the right to receive, subject to the terms and conditions of
the Plan and this Agreement, for each Share subject to the Award immediately
prior to the Change in Control, the consideration (whether stock, cash, other
securities or property or a combination thereof) to which a holder of a share of
Stock on the effective date of the Change in Control was entitled.
Notwithstanding the foregoing, Shares acquired pursuant to the Award prior to
the Change in Control and any consideration received pursuant to the Change in
Control with respect to such shares Shall continue to be subject to all
applicable provisions of this Agreement except as otherwise provided herein.
7 9. ADJUSTMENTS FOR CHANGES IN CAPITAL STRUCTURE. Subject to any required action by the stockholders of the Company, in the event of any change in the Stock effected without receipt of consideration by the Company, whether through merger, consolidation, reorganization, reincorporation, recapitalization, reclassification, stock dividend, stock split, reverse stock split, split-up, split-off, spin-off, combination of shares, exchange of shares, or similar change in the capital structure of the Company, or in the event of payment of a dividend or distribution to the stockholders of the Company in a form other than Stock (excepting normal cash dividends) that has a material effect on the Fair Market Value of shares of Stock, appropriate and proportionate adjustments shall be made in the number and kind of shares subject to the Award, in order to prevent dilution or enlargement of the Participant’s rights under the Award. For purposes of the foregoing, conversion of any convertible securities of the Company shall not be treated as “effected without receipt of consideration by the Company.” Any fractional share resulting from an adjustment pursuant to this Section shall be rounded down to the nearest whole number. The adjustments determined by the Committee pursuant to this Section shall be final, binding and conclusive. 10. LEGENDS. The Company may at any time place legends referencing the Company Reacquisition Right and any applicable federal, state or foreign securities law restrictions on all certificates representing the Shares. The Participant shall, at the request of the Company, promptly present to the Company any and all certificates representing the Shares in the possession of the Participant in order to carry out the provisions of this Section. Unless otherwise specified by the Company, legends placed on such certificates may include, but shall not be limited to, the following:
11. RESTRICTIONS ON TRANSFERS OF SHARES. No Shares may be sold, exchanged, transferred, assigned, pledged, hypothecated or otherwise disposed of, including by operation of law, in any manner which violates any of the provisions of this Agreement and, except pursuant to an Ownership Change Event, until the date on which such shares become Vested Shares, and any such attempted disposition shall be void. The Company shall not be required (a) to transfer on its books any Shares which will have been transferred in violation of any of the provisions set forth in this Agreement or (b) to treat as owner of such Shares or to accord the right to vote as such owner or to pay dividends to any transferee to whom such Shares will have been so transferred. In order to enforce its rights under this Section, the Company shall be authorized to give a stop transfer instruction with respect to the Shares to the Company’s transfer agent. 8 12. RIGHTS AS A STOCKHOLDER. The Participant shall have no rights as a stockholder with respect to any Shares subject to the Award until the date of the issuance of a certificate for such Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company). No adjustment shall be made for dividends, distributions or other rights for which the record date is prior to the date such certificate is issued, except as provided in Section 9. Subject the provisions of this Agreement, the Participant shall exercise all rights and privileges of a stockholder of the Company with respect to Shares deposited in the Escrow pursuant to Section 7. 13. RIGHTS AS A BOARD MEMBER. Nothing in this Agreement shall confer upon the Participant any right to continue in the Service of the Company or interfere in any way with any right of the Company to terminate the Participant’s Service at any time. 14. MISCELLANEOUS PROVISIONS. 14.1 Acquiror”), may, without the consent of
any Participant, either assume or continue the Company’s rights and obligations
under each or any Award or portion thereof outstanding immediately prior to the
Change in Control or substitute for each or any such outstanding Award or
portion thereof a substantially equivalent award with respect to the Acquiror’s
stock, as applicable. For purposes of this Section, if so determined by the
Committee, in its discretion, an Award denominated in shares of Stock shall be
deemed assumed if, following the Change in Control, the Award confers the right
to receive, subject to the terms and conditions of the Plan and the applicable
Award Agreement, for each share of Stock subject to the Award immediately prior
to the Change in Control, the consideration (whether stock, cash, other
securities or property or a combination thereof) to which a holder of a share of
Stock on the effective date of the Change in Control was entitled;
29 provided, however, that if such consideration is not solely common stock of the Acquiror, the Committee may, with the consent of the Acquiror, provide for the consideration to be received upon the exercise or settlement of the Award, for each share of Stock subject to the Award, to consist solely of common stock of the Acquiror equal in Fair Market Value to the per share consideration received by holders of Stock pursuant to the Change in Control. Any Award or portion thereof which is neither assumed or continued by the Acquiror in connection with the Change in Control nor exercised or settled as of the time of consummation of the Change in Control shall terminate and cease to be outstanding effective as of the time of consummation of the Change in Control. (c) These excerpts taken from the ROST 8-K filed May 23, 2008. Acquiror”), may, without the
consent of the Participant, assume or continue the Company’s rights and
obligations with respect to all or any portion of the outstanding Units or
substitute for all or any portion of the outstanding Units substantially
equivalent rights with respect to the Acquiror’s stock. For purposes of this
Section, a Unit shall be deemed assumed if, following the Change in Control, the
Unit confers the right to receive, subject to the terms and conditions of the
Plan and this Agreement, the consideration (whether stock, cash, other
securities or property or a combination thereof) to which a holder of a share of
Stock on the effective date of the Change in Control was entitled; provided,
however, that if such consideration is not solely common stock of the Acquiror,
the Committee may, with the consent of the Acquiror, provide for the
consideration to be received upon settlement of the Unit to consist solely of
common stock of the Acquiror equal in Fair Market Value to the per share
consideration received by holders of Stock pursuant to the Change in
Control.
9. ADJUSTMENTS FOR CHANGES IN CAPITAL STRUCTURE. Subject to any required action by the stockholders of the Company and the requirements of Section 409A of the Code to the extent applicable, in the event of any change in the Stock effected without receipt of consideration by the Company, whether through merger, consolidation, reorganization, reincorporation, recapitalization, reclassification, stock dividend, stock split, reverse stock split, split-up, split-off, spin-off, combination of shares, exchange of shares, or similar change in the capital structure of the Company, or in the event of payment of a dividend or distribution to the stockholders of the Company in a form other than Stock (excepting normal cash dividends) that has a material effect on the Fair Market Value of shares of Stock, appropriate and proportionate adjustments shall be made in the number of Units subject to the Award and/or the number and kind of shares to be issued in settlement of the Award, in order to prevent dilution or enlargement of the Participant’s rights under the Award. For purposes of the foregoing, conversion of any convertible securities of the Company shall not be treated as “effected without receipt of consideration by the Company.” Any fractional share resulting from an adjustment pursuant to this Section shall be rounded down to the nearest whole number. Such adjustments shall be determined by the Committee, and its determination shall be final, binding and conclusive. 6 10. RIGHTS AS A STOCKHOLDER OR EMPLOYEE. The Participant shall have no rights as a stockholder with respect to any shares which may be issued in settlement of this Award until the date of the issuance of a certificate for such shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company). No adjustment shall be made for dividends, distributions or other rights for which the record date is prior to the date such certificate is issued, except as provided in Section 9. If the Participant is an Employee, the Participant understands and acknowledges that, except as otherwise provided in a separate, written employment agreement between a Participating Company and the Participant, the Participant’s employment is “at will” and is for no specified term. Nothing in this Agreement shall confer upon the Participant any right to continue in the Service of a Participating Company or interfere in any way with any right of the Participating Company Group to terminate the Participant’s Service at any time. 11. LEGENDS. The Company may at any time place legends referencing any applicable federal, state or foreign securities law restrictions on all certificates representing shares of stock issued pursuant to this Agreement. The Participant shall, at the request of the Company, promptly present to the Company any and all certificates representing shares acquired pursuant to this Award in the possession of the Participant in order to carry out the provisions of this Section. 12. MISCELLANEOUS PROVISIONS. 12.1 Acquiror”), may, without the
consent of the Participant, assume or continue in full force and effect the
Company’s rights and obligations under the Award or substitute for the Award a
substantially equivalent award for the Acquiror’s stock. For purposes of this
Section, the Award shall be deemed assumed if, following the Change in Control,
the Award confers the right to receive, subject to the terms and conditions of
the Plan and this Agreement, for each Share subject to the Award immediately
prior to the Change in Control, the consideration (whether stock, cash, other
securities or property or a combination thereof) to which a holder of a share of
Stock on the effective date of the Change in Control was entitled.
Notwithstanding the foregoing, Shares acquired pursuant to the Award prior to
the Change in Control and any consideration received pursuant to the Change in
Control with respect to such shares Shall continue to be subject to all
applicable provisions of this Agreement except as otherwise provided herein or
in an employment agreement between a Participating Company and the
Participant.
8 9. Acquiror”), may, without the
consent of the Participant, assume or continue in full force and effect the
Company’s rights and obligations under the Award or substitute for the Award a
substantially equivalent award for the Acquiror’s stock. For purposes of this
Section, the Award shall be deemed assumed if, following the Change in Control,
the Award confers the right to receive, subject to the terms and conditions of
the Plan and this Agreement, for each Share subject to the Award immediately
prior to the Change in Control, the consideration (whether stock, cash, other
securities or property or a combination thereof) to which a holder of a share of
Stock on the effective date of the Change in Control was entitled.
Notwithstanding the foregoing, Shares acquired pursuant to the Award prior to
the Change in Control and any consideration received pursuant to the Change in
Control with respect to such shares Shall continue to be subject to all
applicable provisions of this Agreement except as otherwise provided herein.
9. ADJUSTMENTS FOR CHANGES IN CAPITAL STRUCTURE. Subject to any required action by the stockholders of the Company, in the event of any change in the Stock effected without receipt of consideration by the Company, whether through merger, consolidation, reorganization, reincorporation, recapitalization, reclassification, stock dividend, stock split, reverse stock split, split-up, split-off, spin-off, combination of shares, exchange of shares, or similar change in the capital structure of the Company, or in the event of payment of a dividend or distribution to the stockholders of the Company in a form other than Stock (excepting normal cash dividends) that has a material effect on the Fair Market Value of shares of Stock, appropriate and proportionate adjustments shall be made in the number and kind of shares subject to the Award, in order to prevent dilution or enlargement of the Participant’s rights under the Award. For purposes of the foregoing, conversion of any convertible securities of the Company shall not be treated as “effected without receipt of consideration by the Company.” Any fractional share resulting from an adjustment pursuant to this Section shall be rounded down to the nearest whole number. The adjustments determined by the Committee pursuant to this Section shall be final, binding and conclusive. - 8 - 10. LEGENDS. The Company may at any time place legends referencing the Company Reacquisition Right and any applicable federal, state or foreign securities law restrictions on all certificates representing the Shares. The Participant shall, at the request of the Company, promptly present to the Company any and all certificates representing the Shares in the possession of the Participant in order to carry out the provisions of this Section. Unless otherwise specified by the Company, legends placed on such certificates may include, but shall not be limited to, the following: “THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS SET FORTH IN AN AGREEMENT BETWEEN THIS CORPORATION AND THE REGISTERED HOLDER, OR HIS PREDECESSOR IN INTEREST, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF THIS CORPORATION.” 11. RESTRICTIONS ON TRANSFERS OF SHARES. No Shares may be sold, exchanged, transferred, assigned, pledged, hypothecated or otherwise disposed of, including by operation of law, in any manner which violates any of the provisions of this Agreement and, except pursuant to an Ownership Change Event, until the date on which such shares become Vested Shares, and any such attempted disposition shall be void. The Company shall not be required (a) to transfer on its books any Shares which will have been transferred in violation of any of the provisions set forth in this Agreement or (b) to treat as owner of such Shares or to accord the right to vote as such owner or to pay dividends to any transferee to whom such Shares will have been so transferred. In order to enforce its rights under this Section, the Company shall be authorized to give a stop transfer instruction with respect to the Shares to the Company’s transfer agent. 12. RIGHTS AS A STOCKHOLDER. The Participant shall have no rights as a stockholder with respect to any Shares subject to the Award until the date of the issuance of a certificate for such Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company). No adjustment shall be made for dividends, distributions or other rights for which the record date is prior to the date such certificate is issued, except as provided in Section 9. Subject the provisions of this Agreement, the Participant shall exercise all rights and privileges of a stockholder of the Company with respect to Shares deposited in the Escrow pursuant to Section 7. - 9 - 13. RIGHTS AS A BOARD MEMBER. Nothing in this Agreement shall confer upon the Participant any right to continue in the Service of the Company or interfere in any way with any right of the Company to terminate the Participant’s Service at any time. 14. MISCELLANEOUS PROVISIONS. 14.1 Acquiror”), to either assume or
continue the Company’s rights and obligations under the Option or substitute for
the Option a substantially equivalent option for the Acquiror’s stock, or (b)
provide that any unexercised portion of the Option shall be immediately
exercisable and vested in full as of a date prior to the Change in Control
specified by the Committee provided that the Participant’s Service has not
terminated prior to such date. Any exercise of the Option that was permissible
solely by reason of this Section 8.1 shall be conditioned upon the consummation
of the Change in Control. The Option shall terminate and cease to be outstanding
effective as of the time of the Change in Control to the extent that the Option
is neither assumed by the Acquiror in connection with the Change in Control nor
exercised as of the time of the Change in Control.
8 8.2 This excerpt taken from the ROST DEF 14A filed Apr 14, 2008. Acquiror”), may, without the consent of any Participant, either
assume or continue the Company’s rights and obligations under each or any Award
or portion thereof outstanding immediately prior to the Change in Control or
substitute for each or any such outstanding Award or portion thereof a
substantially equivalent award with respect to the Acquiror’s stock, as
applicable. For purposes of this Section, if so determined by the Committee, in
its discretion, an Award denominated in shares of Stock shall be deemed assumed
if, following the Change in Control, the Award confers the right to receive,
subject to the terms and conditions of the Plan and the applicable Award
Agreement, for each share of Stock subject to the Award immediately prior to the
Change in Control, the consideration (whether stock, cash, other securities or
property or a combination thereof) to which a holder of a share of Stock on the
effective date of the Change in Control was entitled; provided, however, that if
such consideration is not solely common stock of the Acquiror, the Committee
may, with the consent of the Acquiror, provide for the consideration to be
received upon the exercise or settlement of the Award, for each share of Stock
subject to the Award, to consist solely of common stock of the Acquiror equal in
Fair Market Value to the per share
29 consideration received by holders of Stock pursuant to the Change in Control. Any Award or portion thereof which is neither assumed or continued by the Acquiror in connection with the Change in Control nor exercised or settled as of the time of consummation of the Change in Control shall terminate and cease to be outstanding effective as of the time of consummation of the Change in Control. (c) This excerpt taken from the ROST 10-Q filed Jun 13, 2007. Acquiror”), may, without the consent of any Participant, either assume the Company’s rights and obligations under outstanding Options and SARs or substitute for outstanding Options and SARs substantially equivalent options and SARs (as the case may be) for the Acquiror’s stock. Any Options or SARs which are not assumed by the Acquiror in connection with the Change in Control nor exercised as of the
time of consummation of the Change in Control shall terminate and cease to be outstanding effective as of the time of consummation of the Change in Control.
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