Exhibit 10.3
THE PANTRY, INC.
AWARD AGREEMENT
(Awarding Restricted Stock to
Employee)
THIS AWARD AGREEMENT (this
“Agreement”) is dated as of September 15, 2009
(the “Grant Date”) by and between The Pantry,
Inc. , a Delaware corporation (the “Company”),
and Terrance M. Marks (“Participant”)
pursuant to The Pantry, Inc. 2007 Omnibus Plan (the
“Plan”). All capitalized terms not otherwise defined
herein shall have the meanings set forth in the Plan.
RECITALS:
1. Participant
is an employee of the Company, commencing September 15, 2009 (the
“Start Date”), and the Company considers it desirable
to give Participant an added incentive to advance the interests of
the Company and its shareholders.
2. Optionee
is an employee of the Company and the Company considers it
desirable to give Optionee an added incentive to advance the
interests of the Company and its shareholders.
3. The
Company now desires to grant Participant shares of common stock of
the Company, par value $.01 per share (the “Shares”) in
the form of Restricted Stock, pursuant to the terms and conditions
of this Agreement and the Plan.
AGREEMENT:
NOW, THEREFORE, in consideration of
the covenants hereinafter set forth, the parties agree as
follows:
1.
Grant of Restricted Stock . The Company has granted
Participant, and Participant hereby accepts, 15,000
Shares of Restricted Stock (the “Time Restricted
Stock”) and 15,000 Shares of Restricted Stock (the
“Performance Restricted Stock”), which the Company
believes have a Fair Market Value per Share of [ FMV
] on the Grant Date. The Time Restricted Stock and the
Performance Restricted Stock are subject to the terms and
conditions stated in this Agreement and in the Plan.
2.
Period of Restriction . Subject to Participant’s
continuing to provide services to the Company, the restrictions set
forth in this Agreement with respect to the Restricted Stock shall
lapse with respect to one-third (1/3) of the Shares of Time
Restricted Stock on each of the first, second and third
anniversaries of the Start Date, so that all the restrictions shall
have lapsed as to all of the Time Restricted Stock three
(3) years from the Start Date (the “Period of
Restriction”). The restrictions set forth in this Agreement
with respect to the Performance Restricted Stock shall lapse with
respect to one-third (1/3) of the Shares of the Performance
Restricted Stock on each of the first, second and third
anniversaries of the Start Date so long as with respect to the
Fiscal Year (as defined in that certain employment agreement dated
August __, 2009 between
the Optionee and the Company (the
“Employment Agreement”)) coincident with or immediately following the
Effective Date (as such term is defined in the Employment
Agreement) and each subsequent Fiscal Year, Participant achieves
the annual Performance Measures (as such term is defined in Section
12 of 2007 Omnibus Plan), as established for the applicable Fiscal
Year, and such annual installment of 5,000 shares of Performance
Restricted Stock shall be forfeited if such annual Performance
Measures are not met.
Participant acknowledges that prior
to the expiration of the applicable portion of the Period of
Restriction, the Restricted Stock may not be sold, transferred,
pledged, assigned, encumbered, alienated, hypothecated or otherwise
disposed of (whether voluntarily or involuntarily or by operation
of law by judgment, levy, attachment, garnishment or any other
legal or equitable proceedings (including bankruptcy)). Upon the
expiration of the applicable portion of the Period of Restriction,
the restrictions set forth in this Agreement with respect to the
Restricted Stock theretofore subject to such expired Period of
Restriction shall lapse, except as may be provided in accordance
with Section 9 hereof.
3.
Ownership . Participant agrees that Participant’s
ownership of the Restricted Stock will be evidenced solely by a
“book entry” (i.e., a computerized or manual entry) in
the records of the Company or its designated stock transfer agent
in Participant’s name. Upon expiration of the applicable
portion of the Period of Restriction, the Company shall transfer
the vested shares to Participant.
(a)
Death, Disability or Retirement . If
Participant’s termination of employment or other relationship
with the Company is as a result of Participant’s death,
Disability (as such term is defined in the Employment Agreement) or
Retirement (for purposes of this Agreement, defined as
Participant’s termination after attaining age fifty-five
(55) with at least ten (10) completed years of service),
then the Period of Restriction shall immediately lapse, causing any
restrictions which would otherwise remain on the Restricted Stock
to immediately lapse.
(b)
Other Terminations . If Participant’s Termination
is by the Company or an Affiliate or by Participant for any reason
other than death, Disability or Retirement, then all Restricted
Stock for which the Period of Restriction had not lapsed prior to
the date of such Termination shall be immediately forfeited;
provided , however , that in the event Participant is
terminated without Cause (as such term is defined in the Employment
Agreement) prior to the first anniversary of the Start Date, on the
date of such termination a pro rata portion of each of the Time
Restricted Stock and Performance Restricted Stock will become
vested and nonforfeitable; provided , further ,
however , that the Performance Restricted Stock will become
vested only to the extent that the annual performance criteria are
met as of that date, and for the purpose of the Restricted Stock
grants herein a “pro rata portion” shall be a number of
shares equal to (x) the total number of shares constituting such
grant times (y) the fraction the numerator of which is the number
of days Participant was employed through the date of termination
and the denominator of which is 1,095.
