-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, ECQttKlA4/kag4/HfSHxEkbId2ZN5ygHI4RdZvgQAZk6ANw6/Fl79sDAEgrx3FrX bNL7MK5UPYlqiV+/EUHbAQ== 0001341004-06-001177.txt : 20060426 0001341004-06-001177.hdr.sgml : 20060426 20060426132701 ACCESSION NUMBER: 0001341004-06-001177 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 20060420 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20060426 DATE AS OF CHANGE: 20060426 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HARTMARX CORP/DE CENTRAL INDEX KEY: 0000723371 STANDARD INDUSTRIAL CLASSIFICATION: APPAREL & OTHER FINISHED PRODS OF FABRICS & SIMILAR MATERIAL [2300] IRS NUMBER: 363217140 STATE OF INCORPORATION: DE FISCAL YEAR END: 1130 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-08501 FILM NUMBER: 06780537 BUSINESS ADDRESS: STREET 1: 101 N WACKER DR CITY: CHICAGO STATE: IL ZIP: 60606 BUSINESS PHONE: 3123726300 MAIL ADDRESS: STREET 1: 101 N WACKER DRIVE CITY: CHICAGO STATE: IL ZIP: 60606 8-K 1 chi570405.txt UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------ FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): April 20, 2006 HARTMARX CORPORATION (Exact name of registrant as specified in charter) DELAWARE 1-8501 36-3217140 (State or other jurisdiction (Commission (IRS Employer of incorporation) File Number) Identification No.) 101 North Wacker Drive Chicago, Illinois 60606 (Address of principal executive offices) (Zip Code) (312) 372-6300 (Registrant's telephone number, including area code) N/A (Former Name or Former Address, if Changed Since Last Report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): [ ] Written communication pursuant to Rule 425 under the Securities Act (17 C.F.R. 230.425) [ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 C.F.R. 240.14a-12) [ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 C.F.R. 240.14d- 2(b)) [ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 C.F.R. 240.13e- 4(c)) Item 1.01 Entry Into a Material Definitive Agreement Approval of the 2006 Incentive Stock Plan - ----------------------------------------- At the 2006 Annual Meeting of Stockholders of Hartmarx Corporation (the "Company") held on April 20, 2006, the Company's stockholders approved the 2006 Incentive Stock Plan (the "2006 Plan"). The 2006 Plan was adopted by the Company's Board of Directors on January 26, 2006, subject to the approval of Company stockholders, and became effective with such stockholder approval on April 20, 2006. The 2006 Plan provides for the grant of equity awards to key employees of the Company and its subsidiaries, including, stock options to purchase shares of the Company's common stock, restricted stock awards, restricted stock units, stock appreciation rights and other stock-based awards. The term of the 2006 Plan expires on April 19, 2016. A more detailed description of the terms of the 2006 Plan can be found in the Company's definitive proxy statement for the 2006 Annual Meeting of Stockholders filed with the Securities and Exchange Commission on February 24, 2006 (the "Proxy Statement") under "Item (2) - 2006 Incentive Stock Plan" and is incorporated by reference herein. Approval of the 2006 Stock Compensation Plan for Non-Employee Directors - ----------------------------------------------------------------------- At the 2006 Annual Meeting of Stockholders of Hartmarx Corporation (the "Company") held on April 20, 2006, the Company's stockholders approved the 2006 Stock Compensation Plan for Non-Employee Directors (the "2006 Director Plan"). The 2006 Director Plan was adopted by the Company's Board of Directors on January 26, 2006, subject to the approval of Company stockholders, and became effective with such stockholder approval on April 20, 2006. The 2006 Director Plan provides for the grant of stock options to purchase shares of the Company's common stock and awards of deferred director stock awards to non-employee directors of the Company. The term of the 2006 Director Plan expires on April 19, 2016. A more detailed description of the terms of the 2006 Director Plan can be found in the Proxy Statement under "Item (3) - 2006 Stock Compensation Plan for Non-Employee Directors" and is incorporated by reference herein. ITEM 9.01 Financial Statements and Exhibits. (c) Exhibits 10-A-1 Hartmarx Corporation 2006 Incentive Stock Plan (incorporated by reference to Exhibit A to Hartmarx Corporation's definitive proxy statement for the 2006 Annual Meeting of Stockholders filed with the Securities and Exchange Commission on February 24, 2006 (File No.1-8501)). 10-A-2 Hartmarx Corporation 2006 Stock Compensation Plan for Non-Employee Directors (incorporated by reference to Exhibit B to Hartmarx Corporation's definitive proxy statement for the 2006 Annual Meeting of Stockholders filed with the Securities and Exchange Commission on February 24, 2006, File No.1-8501)). 10-A-3 Form of Employee Stock Option (Non-Qualified) Grant Document Under the 2006 Incentive Stock Plan. 10-A-4 Form of Incentive Stock Option Grant Document Under the 2006 Incentive Stock Plan. 10-A-5 Form of Restricted Stock Award Grant Document Under the 2006 Incentive Stock Plan. 10-A-6 Form of Restricted Stock Unit Grant Document Under the 2006 Incentive Stock Plan. 10-A-7 Form of Director Stock Option (Non-Qualified) Grant Document Under the 2006 Stock Compensation Plan for Non-Employee Directors. SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. HARTMARX CORPORATION /s/ TARAS R. PROCZKO ----------------------------- Taras R. Proczko Senior Vice President Dated: April 25, 2006 EXHIBIT LIST Exhibit Number Description -------------- ----------- 10-A-1 Hartmarx Corporation 2006 Incentive Stock Plan (incorporated by reference to Exhibit A to Hartmarx Corporation's definitive proxy statement for the 2006 Annual Meeting of Stockholders filed with the Securities and Exchange Commission on February 24, 2006 (File No.1-8501)). 10-A-2 Hartmarx Corporation 2006 Stock Compensation Plan for Non-Employee Directors (incorporated by reference to Exhibit B to Hartmarx Corporation's definitive proxy statement for the 2006 Annual Meeting of Stockholders filed with the Securities and Exchange Commission on February 24, 2006, File No.1-8501)). 10-A-3 Form of Employee Stock Option (Non-Qualified) Grant Document Under the 2006 Incentive Stock Plan. 10-A-4 Form of Incentive Stock Option Grant Document Under the 2006 Incentive Stock Plan. 10-A-5 Form of Restricted Stock Award Grant Document Under the 2006 Incentive Stock Plan. 10-A-6 Form of Restricted Stock Unit Grant Document Under the 2006 Incentive Stock Plan. 10-A-7 Form of Director Stock Option (Non-Qualified) Grant Document Under the 2006 Stock Compensation Plan for Non-Employee Directors. EX-10 2 hartex10a3.txt EXHIBIT 10-A-3 - EMPLOYEE STOCK OPTION (NON-QUAL) EXHIBIT 10-A-3 HARTMARX CORPORATION EMPLOYEE STOCK OPTION (Non-Qualified) GRANTED PURSUANT TO THE 2006 INCENTIVE STOCK PLAN Section 1. Grant Date. This Employee Stock Option (the "Option") is granted ____________ (the "Grant Date"), pursuant and subject to all of the terms and conditions of the 2006 Incentive Stock Plan (the "Plan") of Hartmarx Corporation (the "Company"). Section 2. Option Grant. The Company hereby grants to ____________ (the "Grantee") the Option to acquire a total of ______________________ shares of Company Common Stock (the "Common Stock") at the price of _________________ Dollars ($___________) per share, upon the terms and conditions hereinafter stated. Section 3. Option Term. This Option shall expire on ____________ (the "Expiration Date"). Section 4. Exercise. 4.1 Generally. This Option shall first be exercisable, in whole or in part, after Grantee's unbroken period in the employ of the Company or a subsidiary (the "Employment Period") continues to and including the first anniversary of the Grant Date. If Grantee's Employment Period on any anniversary of the Grant Date equals or exceeds three years, 100% of this Option shall be exercisable; if two years, 67%; and if one year, 33%. However, this Option may not be exercised, in whole or in part, with respect to any fractional share. 4.2 Change In Control. Notwithstanding the foregoing, 100% of this Option shall become immediately exercisable in the event of any Change in Control, except a Management Change in Control which is not approved by the Board, provided, however, that 50% of the portion, if any, of this Option not previously exercisable pursuant to Subsection 4.1 hereof shall become immediately exercisable in the event of any Management Change in Control not approved by the Board but which is directly or indirectly attributable to, and with respect to which the first public announcement occurs after, the Board's receipt of a bona fide offer from any Person other than Grantee (or any Person acting in concert with Grantee) which, if accepted, would result in a Change in Control. 4.3 Definitions. (a) A "Change in Control" shall be deemed to have occurred if: (i) any Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing 25% or more of the combined voting power of the Company's then outstanding securities, excluding any Person who becomes such a Beneficial Owner in connection with a merger or consolidation which would result in the record holders of the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or any parent thereof) in substantially the same proportions as their ownership immediately prior to such merger or consolidation at least 75% of the combined voting power of the voting securities of the Company or such surviving entity or any parent thereof outstanding immediately after such merger or consolidation; provided that this exclusion shall only apply to the percentage obtained by merger or consolidation and shall cease to apply in the event additional securities are purchased in another transaction; or (ii) during any period of two consecutive years (not including any period prior to the date of the Agreement), individuals who at the beginning of such period constitute the Board of Directors of the Company (the "Board") (together with any new directors whose election by the Board or whose nomination for election by the shareholders of the Company was approved by a vote of at least 66 2/3% of the directors of the Company then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved unless the initial assumption of office of such subsequently-elected or appointed director was in connection with (i) an actual or threatened election contest, including a consent solicitation, relating to the election or removal of one or more members of the Board, (ii) a "tender offer" (as such term is used in Section 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")), (iii) a proposed merger or consolidation of the Company, or (iv) a request, nomination or suggestion of any one or more Beneficial Owners of voting securities of the Company representing 20% or more of the aggregate voting power of the voting securities of the Company or the surviving corporation, as applicable) cease for any reason to constitute at least 66 2/3% of the Board then in office; or (iii) there is consummated a merger or consolidation of the Company (or any direct or indirect subsidiary of the Company) with any other corporation, other than a merger or consolidation which would result in the record holders of the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or any parent thereof) in substantially the same proportions as their ownership immediately prior to such merger or consolidation at least 75% of the combined voting power of the voting securities of the Company or such surviving entity or any parent thereof outstanding immediately after such merger or consolidation; or (iv) the stockholders of the Company approve a plan of complete liquidation or dissolution of the Company or there is consummated an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets, other than a sale or disposition by the Company of all or substantially all of the Company's assets to an entity at least 75% of the combined voting power of the voting securities of which are owned by Persons in substantially the same proportions as their ownership of the Company immediately prior to such sale. Provided, however, no Change in Control shall be deemed to have occurred if there is consummated any transaction or series of integrated transactions immediately following which the record holders of the combined voting power of the Company's outstanding securities immediately prior to such transaction or series of transactions continue to have substantially the same proportionate ownership in an entity which owns all or substantially all of the assets of the Company immediately following such transaction or series of transactions. (b) The term "Management Change in Control" means a Change in Control which occurs prior to the second anniversary of the Grant Date pursuant to which Grantee (alone or with others) acquires or retains, directly or indirectly, the power to direct or cause the direction of the management and policies of the Company (whether through the ownership of voting securities, by contract, or otherwise) and which is directly or indirectly attributable to a public announcement by Grantee (or others acting in concert with Grantee) of an intention to take actions which, if consummated, would constitute such Management Change in Control. (c) The term "Person" means any person (as defined in Section 3(a)(9) of the Exchange Act, as such term is modified in Sections 13(d) and 14(d) of the Exchange Act) other than (i) any employee plan established by the Company, (ii) the Company or any of its affiliates (as defined in Rule 12b-2 promulgated under the Exchange Act) prior to the transaction resulting in the Change in Control, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, or (iv) a corporation owned, directly or indirectly, by stockholders of the Company in substantially the same proportions as their ownership of the Company. (d) The term "Beneficial Owner" means beneficial owner as defined in Rule 13d-3 promulgated under the Exchange Act. (e) The term "Board" means the Board of Directors of the Company. (f) The term "Committee" means the Compensation and Stock Option Committee of the Board, or successor thereto, as determined by the Board. 4.4 Other Acceleration. Notwithstanding the foregoing, 100% of this Option shall become immediately exercisable if Grantee's Employment Period terminates by reason of Grantee's Total Disability (as defined below), retirement from the Company or a subsidiary at or after becoming age 65, or death. Absence on approved leave shall not be considered a termination or break in service of Grantee's Employment Period. 4.5 Post-Termination Exercise. Any portion of this Option which is not exercisable at the time of Grantee's termination of employment from the Company or its subsidiaries shall be forfeited. Any portion of this Option which shall become exercisable shall, until exercised, continue to be exercisable for a period of three years (but not after the Expiration Date) after Grantee's retirement from the Company or a subsidiary at or after becoming age 65; otherwise (except as provided in Subsections 4.6, 4.7 and 4.8 hereof) for a period of 90 days after the end of Grantee's Employment Period (but not after the Expiration Date). Notwithstanding the foregoing if Grantee is a party to a written employment agreement with the Company, exercisability and termination of this Option upon termination of employment shall be governed by the provisions of such employment agreement. 4.6 Termination for Cause. In the event of Grantee's employment with the Company or a subsidiary is terminated for "Cause" (as defined in the Plan) all outstanding Options granted hereunder, whether or not exercisable, shall expire and be forfeit effective as of the date of such termination. 4.7 Total Disability. In the event Grantee leaves the employ of the Company or a subsidiary as a result of Grantee's Total Disability, this Option shall, until exercised, continue to be exercisable for a period of three years after the end of Grantee's Employment Period (but not after the Expiration Date). Grantee's disability shall be deemed to be a "Total Disability" if (i) Grantee would qualify for a disability benefit under the long-term disability plan maintained by the Grantee's employer, or (ii) Grantee suffers from such other conditions as may be determined in the sole discretion of the Committee to constitute a disability. 4.8 Death. If the Grantee shall die within 90 days after the end of Grantee's Employment Period and any portion of this Option was exercisable on the date Grantee's Employment Period terminated, the executor of Grantee's estate or Grantee's heirs may exercise this Option (to the extent exercisable at the time of Grantee's death) at any time before the expiration of such 90 day period. If Grantee's Employment Period terminates by reason of Grantee's death, the executor of Grantee's estate or Grantee's heirs may exercise this Option (to the extent exercisable at the time of Grantee's death) within three years after the date of Grantee's death (but not after the Expiration Date). 4.9 Limitations. Exercise of this Option, and the issuance of any shares, shall be limited to the extent necessary to comply with all applicable laws and regulations and the applicable requirements of any securities exchange or similar entity. Section 5. Exercise Procedure. In order to exercise this Option, Grantee must give written notice thereof to the Company's Secretary at the Company's main office. The notice must (i) state the number of shares being purchased for cash (and the number of shares being acquired upon payment of shares of Common Stock which have been held by Grantee for not less than six months, if any); and (ii) be satisfactory in form and substance to the Company in all other respects. The notice must be accompanied by a check in the amount of any cash payment required to effect such exercise, and, if payment of all or any portion of the option price is made in shares of Common Stock which have been held by Grantee for not less than six months, the notice must be accompanied by stock certificates (endorsed in blank and in proper form to transfer ownership of such shares to the Company) representing shares having a cash value at the time of exercise equal to the amount of the cash payment in lieu of which such shares are being delivered. If it is determined that any agreement from Grantee is appropriate in order to comply with any registration, listing or other legal requirement applicable to the Company, Grantee will also be required to deliver such an agreement. Section 6. Tax Withholding. To the extent that Grantee's exercise of this Option results in income to Grantee for Federal or State income tax purposes, Grantee shall deliver to the Company at the time that Grantee exercises this Option the amount of any Federal and State withholding taxes as may be required for the Company to meet its minimum statutory withholding obligations under applicable tax laws and regulations as determined by the Company, and if Grantee fails to do so, the Company shall have the right to withhold the issuance of such whole number of shares of Common Stock as shall, when multiplied by the Fair Market Value (as defined in the Plan) of a share of Common Stock on the Vesting Date, be sufficient for such purpose. Section 7. Transferability. This Option is not transferable except by will, the laws of descent and distribution, or pursuant to a domestic relations order, and may be exercised during the lifetime of Grantee only by Grantee or his legal representative as provided above, and after the death of Grantee only as provided above. Section 8. Rights of Grantee. Nothing herein contained shall confer on Grantee any right with respect to continued employment by the Company or a subsidiary, or interfere with the right of the Company or such subsidiary to terminate the employment of Grantee at any time or, except as to shares actually issued, confer any rights as a Company stockholder upon Grantee. Rights of grantees are governed by the Plan, under which the Committee may make adjustments necessary to reflect changes made in the Company's Common Stock. HARTMARX CORPORATION By --------------------------------- Secretary EX-10 3 hartex10a4.txt EXHIBIT 10-A-4- INCENTIVE STOCK OPTION EXHIBIT 10-A-4 HARTMARX CORPORATION INCENTIVE STOCK OPTION GRANTED PURSUANT TO THE 2006 INCENTIVE STOCK PLAN Section 1. Grant Date. This Incentive Stock Option ("Option" or "ISO") is granted ____________ (the "Grant Date"), pursuant and subject to all of the terms and conditions of the 2006 Incentive Stock Plan (the "Plan") of Hartmarx Corporation (the "Company"). Section 2. Incentive Stock Option Grant. The Company hereby grants to _____________________ (the "Grantee") the option to acquire a total of__________________ shares of Common Stock of the Company (the "Common Stock") at the option price of __________________ Dollars ($_______) per share, upon the terms and conditions hereinafter stated. This option is intended to be, and shall be treated as, an incentive stock option (as that term is defined in Section 422 of the Internal Revenue Code of 1986). Section 3. Term of this Incentive Stock Option. This ISO shall expire on ____________ (the "Expiration Date"). Section 4. Exercise. 4.1 Generally. This ISO shall first be exercisable, in whole or in part, after the Grantee's unbroken period in the employ of the Company or a subsidiary (the "Employment Period") continues to and including the first anniversary of the Grant Date. If Grantee's Employment Period on any anniversary of the Grant Date equals or exceeds three years, 100% of this ISO shall be exercisable; if two years, 67%; and if one year, 33%. However, this ISO may not be exercised, in whole or in part, with respect to any fractional share. 4.2 Change In Control. Notwithstanding the foregoing, 100% of this ISO shall become immediately exercisable in the event of any Change in Control, except a Management Change in Control which is not approved by the Board, provided, however, that 50% of the portion, if any, of this ISO not previously exercisable pursuant to Subsection 4.1 hereof shall become immediately exercisable in the event of any Management Change in Control not approved by the Board but which is directly or indirectly attributable to, and with respect to which the first public announcement occurs after, the Board's receipt of a bona fide offer from any Person other than Grantee (or any Person acting in concert with Grantee) which, if accepted, would result in a Change in Control. 4.3 Definitions. (a) A "Change in Control" shall be deemed to have occurred if: (i) any Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing 25% or more of the combined voting power of the Company's then outstanding securities, excluding any Person who becomes such a Beneficial Owner in connection with a merger or consolidation which would result in the record holders of the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or any parent thereof) in substantially the same proportions as their ownership immediately prior to such merger or consolidation at least 75% of the combined voting power of the voting securities of the Company or such surviving entity or any parent thereof outstanding immediately after such merger or consolidation; provided that this exclusion shall only apply to the percentage obtained by merger or consolidation and shall cease to apply in the event additional securities are purchased in another transaction; or (ii) during any period of two consecutive years (not including any period prior to the date of the Agreement), individuals who at the beginning of such period constitute the Board of Directors of the Company (the "Board") (together with any new directors whose election by the Board or whose nomination for election by the shareholders of the Company was approved by a vote of at least 66 2/3% of the directors of the Company then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved unless the initial assumption of office of such subsequently-elected or appointed director was in connection with (i) an actual or threatened election contest, including a consent solicitation, relating to the election or removal of one or more members of the Board, (ii) a "tender offer" (as such term is used in Section 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")), (iii) a proposed merger or consolidation of the Company, or (iv) a request, nomination or suggestion of any one or more Beneficial Owners of voting securities of the Company representing 20% or more of the aggregate voting power of the voting securities of the Company or the surviving corporation, as applicable) cease for any reason to constitute at least 66 2/3% of the Board then in office; or (iii) there is consummated a merger or consolidation of the Company (or any direct or indirect subsidiary of the Company) with any other corporation, other than a merger or consolidation which would result in the record holders of the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or any parent thereof) in substantially the same proportions as their ownership immediately prior to such merger or consolidation at least 75% of the combined voting power of the voting securities of the Company or such surviving entity or any parent thereof outstanding immediately after such merger or consolidation; or (iv) the stockholders of the Company approve a plan of complete liquidation or dissolution of the Company or there is consummated an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets, other than a sale or disposition by the Company of all or substantially all of the Company's assets to an entity at least 75% of the combined voting power of the voting securities of which are owned by Persons in substantially the same proportions as their ownership of the Company immediately prior to such sale. Provided, however, no Change in Control shall be deemed to have occurred if there is consummated any transaction or series of integrated transactions immediately following which the record holders of the combined voting power of the Company's outstanding securities immediately prior to such transaction or series of transactions continue to have substantially the same proportionate ownership in an entity which owns all or substantially all of the assets of the Company immediately following such transaction or series of transactions. (b) The term "Management Change in Control" means a Change in Control which occurs prior to the second anniversary of the Grant Date pursuant to which Grantee (alone or with others) acquires or retains, directly or indirectly, the power to direct or cause the direction of the management and policies of the Company (whether through the ownership of voting securities, by contract, or otherwise) and which is directly or indirectly attributable to a public announcement by Grantee (or others acting in concert with Grantee) of an intention to take actions which, if consummated, would constitute such Management Change in Control. (c) The term "Person" means any person (as defined in Section 3(a)(9) of the Exchange Act, as such term is modified in Sections 13(d) and 14(d) of the Exchange Act) other than (i) any employee plan established by the Company, (ii) the Company or any of its affiliates (as defined in Rule 12b-2 promulgated under the Exchange Act) prior to the transaction resulting in the Change in Control, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, or (iv) a corporation owned, directly or indirectly, by stockholders of the Company in substantially the same proportions as their ownership of the Company. (d) The term "Beneficial Owner" means beneficial owner as defined in Rule 13d-3 promulgated under the Exchange Act. (e) The term "Board" means the Board of Directors of the Company. (f) The term "Committee" means the Compensation and Stock Option Committee of the Board, or successor thereto, as determined by the Board. 4.4 Other Acceleration. Notwithstanding the foregoing, 100% of this ISO shall become immediately exercisable if Grantee's Employment Period terminates by reason of Grantee's Total Disability (as defined below), retirement from the Company or a subsidiary at or after becoming age 65, or death. Absence on approved leave shall not be considered a termination or break in service of Grantee's Employment Period. 4.5 Post-Termination Exercise. Any portion of this Option that is not exercisable at the time of Grantee's termination of employment from the Company or its subsidiaries shall be forfeited. Any portion of this ISO which shall become exercisable shall, until exercised, continue to be exercisable for a period of three years (but not after the Expiration Date) after Grantee's retirement from the Company or a subsidiary at or after becoming age 65; otherwise (except as provided in Subsections 4.6, 4.7 and 4.8 hereof) for a period of 90 days after the end of Grantee's Employment Period (but not after the Expiration Date). Notwithstanding the foregoing, if Grantee is a party to a written employment agreement with the Company, exercisability and termination of this Option upon termination of employment shall be governed by the provisions of such employment agreement. 4.6 Termination for Cause. In the event of Grantee's employment with the Company or a subsidiary is terminated for "Cause" (as defined in the Plan) all this ISO, whether or not exercisable, shall expire and be forfeit effective as of the date of such termination. 4.7 Total Disability. In the event Grantee leaves the employ of the Company or a subsidiary as a result of Grantee's Total Disability, this ISO shall, until exercised, continue to be exercisable for a period of three years after the end of Grantee's Employment Period (but not after the Expiration Date), provided however, that continued qualification of this ISO as an incentive stock option under federal income tax laws shall be subject to the provisions of Subsection 4.10. Grantee's disability shall be deemed to be a "Total Disability" if Grantee is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of 12 months (with the existence of such disability evidenced by such medical certification as the Company may require) 4.8 Death. If the Grantee shall die within 90 days after the end of Grantee's Employment Period and any portion of this ISO was exercisable on the date Grantee's Employment Period terminated, the executor of Grantee's estate or Grantee's heirs may exercise this ISO (to the extent exercisable at the time of Grantee's death) at any time before the expiration of such 90 day period. If Grantee's Employment Period terminates by reason of Grantee's death, the executor of Grantee's estate or Grantee's heirs may exercise this ISO (to the extent exercisable at the time of Grantee's death) within three years after the date of Grantee's death (but not after the Expiration Date). 4.9 Limitations. Exercise of this ISO, and the issuance of any shares, shall be limited to the extent necessary to comply with all applicable laws and regulations and the applicable requirements of any securities exchange or similar entity. 4.10 Disqualifying Dispositions. This ISO may fail to qualify as an incentive stock option for federal income tax purposes if all or any portion of it is: (i) exercised more than three months after the end of the Grantee's Employment Period; or (ii) exercised more than one year after Grantee leaves the employ of the Company or a subsidiary as a result of Grantee's Total Disability; or (iii) if the shares received by the Grantee upon exercise of this ISO are disposed of earlier than the later of (A) one year after the date of exercise, or (B) two years after the Grant Date, except in the case of shares received as a result of an exercise pursuant to Subsection 4.8 above. Grantee hereby agrees to notify the Company in writing within thirty days after the date of any such disposition by executing the Notice of Disqualifying Disposition in the form attached hereto as Exhibit A, which shall state the number of shares sold or transferred, the date the shares were sold or transferred, and the sale price, if applicable. Section 5. Exercise Procedure. In order to exercise this ISO, Grantee must give written notice thereof to the Company's Secretary at the Company's main office. The notice must (i) state the number of shares being purchased for cash (and the number of shares being acquired upon payment of shares of Common Stock which have been held by Grantee for not less than six months, if any); (ii) Grantee's agreement to promptly report to the Secretary of the Company every disposition (by sale, gift, exchange or otherwise) of any shares received upon exercise of this ISO which occurs earlier than the later of (A) one year after the date of exercise, or (B) two years after the Grant Date; and (iii) be satisfactory in form and substance to the Company in all other respects. The notice must be accompanied by a check in the amount of any cash payment required to effect such exercise, and, if payment of all or any portion of the option price is made in shares of Common Stock which have been held by Grantee for not less than six months, by stock certificates then owned or held by Grantee (endorsed in blank and in proper form to transfer ownership of such shares to the Company) representing shares having a cash value at the time of exercise equal to the amount of the cash payment in lieu of which such shares are being delivered. If it is determined that any agreement from Grantee is appropriate in order to comply with any registration, listing or other legal requirement applicable to the Company, Grantee will also be required to deliver such an agreement. Section 6. Transferability. This ISO is not transferable except by will or the laws of descent and distribution, and may be exercised during the lifetime of Grantee only by Grantee or his legal representative as provided above, and after the death of Grantee only as provided above. Section 7. Rights of Grantee. Nothing herein contained shall confer on Grantee any right with respect to continued employment by the Company or a subsidiary, or interfere with the right of the Company or such subsidiary to terminate the employment of Grantee at any time or, except as to shares actually issued, confer any rights as a Company stockholder upon Grantee. Rights of grantees are governed by the Plan, under which the Committee may make adjustments necessary to reflect changes made in the Company's Common Stock. HARTMARX CORPORATION By ----------------------------- Secretary EXHIBIT A --------- NOTICE OF DISQUALIFYING DISPOSITION To: Hartmarx Corporation Attn: Corporate Secretary Subject: Notice of Disqualifying Disposition This is official notice that the undersigned disposed of Shares of Hartmarx Corporation (the "Company") Common Stock acquired by exercise of an incentive stock option, under and pursuant to the Company's 2006 Incentive Stock Plan, as follows:
- ----------------- --------------- ----------------- ------------------ ------------------ ----------------- -------------------- Exercise Number of Option Price Transfer/Sale Market Value Total Shares Date of Grant Date Shares (Per Share) Date (Per Share) Transferred/Sold - ----------------- --------------- ----------------- ------------------ ------------------ ----------------- -------------------- - ----------------- --------------- ----------------- ------------------ ------------------ ----------------- -------------------- - ----------------- --------------- ----------------- ------------------ ------------------ ----------------- -------------------- - ----------------- --------------- ----------------- ------------------ ------------------ ----------------- -------------------- - ----------------- --------------- ----------------- ------------------ ------------------ ----------------- -------------------- - ----------------- --------------- ----------------- ------------------ ------------------ ----------------- --------------------
I understand that for Federal Income Tax Purposes, Hartmarx Corporation (or my employer) is required to report on a Form W-2 the compensation of employees who dispose of Incentive Stock Options shares within one year from the Date of Exercise, or within two years from the date of grant. Grantee's Signature: ______________________________ Print Name: ______________________________ Home Address: ______________________________ City, State, Zip Code: ______________________________ Daytime Phone: ______________________________ Social Security Number: ______________________________ You must use this form if you have disposed of ISO shares within two years of the grant date or within one year of the date of exercise. EX-10 4 hartex10a5.txt EXHIBIT 10-A-5 - RESTRICTED STOCK AWARD EXHIBIT 10-A-5 HARTMARX CORPORATION RESTRICTED STOCK AWARD GRANTED PURSUANT TO THE 2006 INCENTIVE STOCK PLAN Section 1. Award Date. This Restricted Stock Award (the "Award") is granted ____________ (the "Award Date"), pursuant and subject to all of the terms and conditions of the 2006 Incentive Stock Plan (the "Plan") of Hartmarx Corporation (the "Company"). Section 2. Award Grant. The Company hereby grants to _____________________ (the "Grantee") a total of ________________________ shares (the "Awarded Shares") of Company common stock (the "Common Stock") upon the terms and conditions and subject to forfeiture and other restrictions as hereinafter provided. Such Awarded Shares shall be evidenced by a book entry statement bearing the restrictive legends described in Section 5 hereof. The book entry transfer evidencing the shares of Restricted Stock shall be held in the custody of the Company until the restrictions thereon shall have lapsed, and, as a condition to the grant of the Awarded Shares, the Grantee shall deliver to the Company a stock power, endorsed in blank, relating to the Awarded Shares in such form as the Secretary of the Company may require. Reasonably promptly after the restrictions on transferability of a share of Awarded Shares shall lapse, the Company shall cause to be delivered to the Grantee a certificate (or make a book entry) evidencing such share, free of the legends described in Section 5 hereof. Section 3. Vesting; Restrictions. None of the Awarded Shares shall be vested or transferable unless and until Grantee's unbroken period in the employ of the Company or a subsidiary (the "Employment Period") continues to and including the first to occur of the following events (the "Vesting Date"): (a) ____________; or (b) the closing price of a share of Common Stock on the New York Stock Exchange -- Composite Transactions, or other principal market quotation, equals or exceeds ____________ ___________________; or (c) Grantee's retirement from employment with the Company or a subsidiary at or after attaining age 65; or (d) with the consent of the Committee. At that time, all Awarded Shares shall become vested in and transferable by Grantee free and clear of all restrictions and risks of forfeiture. In the event of termination of Grantee's Employment Period prior to the Vesting Date, except as otherwise provided in Section 6 below, Awarded Shares not then vested in and transferable by Grantee shall be forfeited. Absence on approved leave shall not be considered a termination or break in service of Grantee's Employment Period. Notwithstanding the foregoing, if Grantee is a party to a written employment agreement with the Company, vesting and forfeiture of Awarded Shares upon termination of employment shall be governed by the provisions of such employment agreement. Notwithstanding the foregoing, unrestricted ownership rights in all Awarded Shares hereunder shall be vested in Grantee free and clear of all restrictions and risks of forfeiture whatsoever upon a Change in Control during Grantee's Employment Period. Section 4. Definitions. (a)A "Change in Control" shall be deemed to have occurred if: (i) any Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing 25% or more of the combined voting power of the Company's then outstanding securities, excluding any Person who becomes such a Beneficial Owner in connection with a merger or consolidation which would result in the record holders of the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or any parent thereof) in substantially the same proportions as their ownership immediately prior to such merger or consolidation at least 75% of the combined voting power of the voting securities of the Company or such surviving entity or any parent thereof outstanding immediately after such merger or consolidation; provided that this exclusion shall only apply to the percentage obtained by merger or consolidation and shall cease to apply in the event additional securities are purchased in another transaction; or (ii) during any period of two consecutive years (not including any period prior to the date of the Agreement), individuals who at the beginning of such period constitute the Board of Directors of the Company (the "Board") (together with any new directors whose election by the Board or whose nomination for election by the shareholders of the Company was approved by a vote of at least 66 2/3% of the directors of the Company then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved unless the initial assumption of office of such subsequently-elected or appointed director was in connection with (i) an actual or threatened election contest, including a consent solicitation, relating to the election or removal of one or more members of the Board, (ii) a "tender offer" (as such term is used in Section 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")), (iii) a proposed merger or consolidation of the Company, or (iv) a request, nomination or suggestion of any one or more Beneficial Owners of voting securities of the Company representing 20% or more of the aggregate voting power of the voting securities of the Company or the surviving corporation, as applicable) cease for any reason to constitute at least 66 2/3% of the Board then in office; or (iii) there is consummated a merger or consolidation of the Company (or any direct or indirect subsidiary of the Company) with any other corporation, other than a merger or consolidation which would result in the record holders of the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or any parent thereof) in substantially the same proportions as their ownership immediately prior to such merger or consolidation at least 75% of the combined voting power of the voting securities of the Company or such surviving entity or any parent thereof outstanding immediately after such merger or consolidation; or (iv) the stockholders of the Company approve a plan of complete liquidation or dissolution of the Company or there is consummated an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets, other than a sale or disposition by the Company of all or substantially all of the Company's assets to an entity at least 75% of the combined voting power of the voting securities of which are owned by Persons in substantially the same proportions as their ownership of the Company immediately prior to such sale. Provided, however, no Change in Control shall be deemed to have occurred if there is consummated any transaction or series of integrated transactions immediately following which the record holders of the combined voting power of the Company's outstanding securities immediately prior to such transaction or series of transactions continue to have substantially the same proportionate ownership in an entity which owns all or substantially all of the assets of the Company immediately following such transaction or series of transactions. (b) The term "Person" means any person (as defined in Section 3(a)(9) of the Exchange Act, as such term is modified in Sections 13(d) and 14(d) of the Exchange Act) other than (i) any employee plan established by the Company, (ii) the Company or any of its affiliates (as defined in Rule 12b-2 promulgated under the Exchange Act) prior to the transaction resulting in the Change in Control, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, or (iv) a corporation owned, directly or indirectly, by stockholders of the Company in substantially the same proportions as their ownership of the Company. (c) The term "Beneficial Owner" means beneficial owner as defined in Rule 13d-3 promulgated under the Exchange Act. (d) The term "Board" means the Board of Directors of the Company. (e) The term "Committee" means the Compensation and Stock Option Committee of the Board, or successor thereto, as determined by the Board. Section 5. Legend on Certificates. The Participant agrees that any book entry statement issued for shares of Restricted Stock prior to the lapse of any outstanding restrictions relating thereto shall bear the following legend (in addition to any other legend or legends required under applicable federal and state securities laws): THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS UPON TRANSFER AND RIGHTS OF REPURCHASE (THE "RESTRICTIONS") AS SET FORTH IN THE HARTMARX CORPORATION 2006 STOCK INCENTIVE PLAN AND AN AWARD AGREEMENT ENTERED INTO BETWEEN THE REGISTERED OWNER AND HARTMARX CORPORATION , COPIES OF WHICH ARE ON FILE WITH THE SECRETARY OF THE COMPANY. ANY ATTEMPT TO DISPOSE OF THESE SHARES IN CONTRAVENTION OF THE RESTRICTIONS, INCLUDING BY WAY OF SALE, ASSIGNMENT, TRANSFER, PLEDGE, HYPOTHECATION OR OTHERWISE, SHALL BE NULL AND VOID AND WITHOUT EFFECT. Section 6. Death; Total Disability. In the event Grantee's Employment Period terminates by reason of Grantee's death or Total Disability, all Awarded Shares shall thereupon vest and be transferable. Grantee's disability shall be deemed to be a "Total Disability" if (i) Grantee would qualify for a disability benefit under the long-term disability plan maintained by the Grantee's employer, or (ii) Grantee suffers from such other conditions as may be determined in the sole discretion of the Committee to constitute a disability. Section 7. Issuance Procedure. Issuance of any shares pursuant hereto shall be limited to the extent necessary to comply with all applicable laws and regulations and applicable requirements of any securities exchange or similar entity. The Company, at its option, may either include an appropriate legend on certificates representing such Awarded Shares or postpone delivery of such certificates until such restrictions are no longer applicable. If it is determined that any agreement from Grantee is appropriate in order to comply with any registration, listing or other legal requirement applicable to the Company, Grantee will be required to deliver such agreement prior to the delivery or subsequent transfer of any shares issued hereunder. Section 8. Tax Withholding. To the extent that receipt of Awarded Shares or the lapse of any restrictions on such Awarded Shares results in income to Grantee for Federal or State income tax purposes, Grantee shall deliver to the Company on the Vesting Date (or, if the Grantee makes an election under Section 83(b) of the Code in connection with such grant, at the time the Grantee recognizes taxable income in respect to the Awarded Shares) the amount of any Federal and State withholding taxes as may be required for the Company to meet its minimum statutory withholding obligations under applicable tax laws and regulations as determined by the Company, and if Grantee fails to do so, the Company shall have the right to withhold such whole number of Awarded Shares as shall, when multiplied by the fair market value of a share of Common Stock on the Vesting Date, be sufficient for such purpose. The Grantee shall promptly notify the Company of any election made pursuant to Section 83(b) of the Code. A form of such election is attached hereto as Exhibit A. THE GRANTEE ACKNOWLEDGES THAT IT IS THE GRANTEE'S SOLE RESPONSIBILITY AND NOT THE COMPANY'S TO FILE TIMELY THE ELECTION UNDER SECTION 83(b) OF THE CODE, EVEN IF THE GRANTEE REQUESTS THE COMPANY OR ITS REPRESENTATIVE TO MAKE THIS FILING ON THE GRANTEE'S BEHALF. The Grantee acknowledges that the tax laws and regulations applicable to the Awarded Shares and the disposition of the Awarded Shares following vesting are complex and subject to change. Section 9. Investment Representation. The Grantee hereby represents and warrants to the Company that the Grantee, by reason of the Grantee's business or financial experience (or the business or financial experience of the Grantee's professional advisors who are unaffiliated with and who are not compensated by the Company or any affiliate or selling agent of the Company, directly or indirectly), has the capacity to protect the Grantee's own interests in connection with the transactions contemplated under this Restricted Stock Award. Section 10. Transferability. This Award is not transferable except by will, the laws of descent and distribution, or pursuant to a domestic relations order. Section 11. Rights of Grantee. Nothing herein contained shall confer on Grantee any right with respect to continued employment by the Company or a subsidiary, or interfere with the right of the Company or such subsidiary to terminate the employment of Grantee at any time or, except as to shares actually issued, confer any rights as a Company stockholder upon Grantee. Rights of grantees are governed by the Plan, under which the Committee may make adjustments necessary to reflect changes made in the Company's Common Stock. HARTMARX CORPORATION By ---------------------------- Secretary EXHIBIT A --------- ELECTION UNDER SECTION 83(b) OF THE INTERNAL REVENUE CODE OF 1986 The undersigned taxpayer hereby elects, pursuant to Section 83(b) of the Internal Revenue Code of 1986, as amended, to include in taxpayer's gross income for the current taxable year the amount of any compensation taxable to taxpayer in connection with taxpayer's receipt of the property described below: 1. The name address, taxpayer identification number and taxable year of the undersigned are as follows: NAME OF TAXPAYER: _____________________________________________________________ NAME OF SPOUSE: _______________________________________________________________ ADDRESS: ______________________________________________________________________ IDENTIFICATION NO. (Soc. Sec. No.) OF TAXPAYER: ______________________________ IDENTIFICATION NO. (Soc. Sec. No.) OF SPOUSE: ________________________________ TAXABLE YEAR: __________________________________________________________________ 2. The property with respect to which the election is made is described as follows: __________________ shares (the "Awarded Shares") of Hartmarx Corporation ("Company"). 3. The date on which the property was transferred is: _____________________________, 20_____. 4. The property is subject to the following restrictions: ___________________________________ - -------------------------------------------------------------------------------- The Awarded Shares may not be transferred and are subject to forfeiture under the terms of an agreement between the taxpayer and the Company. These restrictions lapse upon the satisfaction of certain conditions in such agreement. 5. The fair market value at the time of transfer, determined without regard to any restriction other than a restriction which by its terms will never lapse, of such property is: $ _________________. 6 The amount (if any) paid for such property is: $ ____________________. The undersigned has submitted a copy of this statement to the person for whom the services were performed in connection with the undersigned's receipt of the above-described property. The transferee of such property is the person performing the services in connection with the transfer of said property. The undersigned understands that the foregoing election may not be revoked except with the consent of the Commissioner. Dated: ___________________________, 200____ __________________________ Taxpayer The undersigned spouse of taxpayer joins in this election. Dated: ___________________________, 200____ __________________________ Spouse of Taxpayer EX-10 5 hartex10a6.txt EXHIBIT 10-A-6 - RESTRICTED STOCK UNIT AWARD EXHIBIT 10-A-6 HARTMARX CORPORATION RESTRICTED STOCK UNIT AWARD GRANTED PURSUANT TO THE 2006 INCENTIVE STOCK PLAN Section 1. Award Date. This Restricted Stock Unit Award (the "Award") is granted ____________ (the "Award Date"), pursuant and subject to all of the terms and conditions of the 2006 Incentive Stock Plan (the "Plan") of Hartmarx Corporation (the "Company"). Section 2. Award Grant. The Company hereby grants to _____________ (the "Grantee") a total of ______________________ Restricted Stock Units, each Unit equal to one share of Company common stock (the "Common Stock") (the "Awarded Shares") upon the terms and conditions and subject to forfeiture and other restrictions as hereinafter provided. This Award does not confer on Grantee any rights as a Company stockholder except as to unforfeited Awarded Shares issued pursuant hereto. Section 3. Vesting; Restrictions. None of the Awarded Shares shall be vested or transferable unless and until Grantee's unbroken period in the employ of the Company or a subsidiary (the "Employment Period") continues to and including the first to occur of the following events (the "Vesting Date"): (a) ____________; or (b) the closing price of a share of Common Stock on the New York Stock Exchange -- Composite Transactions, or other principal market quotation, equals or exceeds ____________ _________________________; or (c) Grantee's retirement from employment with the Company or a subsidiary at or after attaining age 65; or (d) with the consent of the Committee. At that time, all Awarded Shares shall become vested in and transferable by Grantee free and clear of all restrictions and risks of forfeiture. In the event of termination of Grantee's Employment Period prior to the Vesting Date, except as otherwise provided in Section 5 below, Awarded Shares not then vested in and transferable by Grantee shall be forfeited. Absence on approved leave shall not be considered a termination or break in service of Grantee's Employment Period. Notwithstanding the foregoing, if Grantee is a party to a written employment agreement with the Company, vesting and forfeiture of Awarded Shares upon termination of employment shall be governed by the provisions of such employment agreement. Notwithstanding the foregoing, unrestricted ownership rights in all Awarded Shares hereunder shall be vested in Grantee free and clear of all restrictions and risks of forfeiture whatsoever upon a Change in Control during Grantee's Employment Period. Section 4. Definitions. (a) A "Change in Control" shall be deemed to have occurred if: (i) any Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing 25% or more of the combined voting power of the Company's then outstanding securities, excluding any Person who becomes such a Beneficial Owner in connection with a merger or consolidation which would result in the record holders of the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or any parent thereof) in substantially the same proportions as their ownership immediately prior to such merger or consolidation at least 75% of the combined voting power of the voting securities of the Company or such surviving entity or any parent thereof outstanding immediately after such merger or consolidation; provided that this exclusion shall only apply to the percentage obtained by merger or consolidation and shall cease to apply in the event additional securities are purchased in another transaction; or (ii) during any period of two consecutive years (not including any period prior to the date of the Agreement), individuals who at the beginning of such period constitute the Board of Directors of the Company (the "Board") (together with any new directors whose election by the Board or whose nomination for election by the shareholders of the Company was approved by a vote of at least 66 2/3% of the directors of the Company then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved unless the initial assumption of office of such subsequently-elected or appointed director was in connection with (i) an actual or threatened election contest, including a consent solicitation, relating to the election or removal of one or more members of the Board, (ii) a "tender offer" (as such term is used in Section 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")), (iii) a proposed merger or consolidation of the Company, or (iv) a request, nomination or suggestion of any one or more Beneficial Owners of voting securities of the Company representing 20% or more of the aggregate voting power of the voting securities of the Company or the surviving corporation, as applicable) cease for any reason to constitute at least 66 2/3% of the Board then in office; or (iii) there is consummated a merger or consolidation of the Company (or any direct or indirect subsidiary of the Company) with any other corporation, other than a merger or consolidation which would result in the record holders of the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or any parent thereof) in substantially the same proportions as their ownership immediately prior to such merger or consolidation at least 75% of the combined voting power of the voting securities of the Company or such surviving entity or any parent thereof outstanding immediately after such merger or consolidation; or (iv) the stockholders of the Company approve a plan of complete liquidation or dissolution of the Company or there is consummated an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets, other than a sale or disposition by the Company of all or substantially all of the Company's assets to an entity at least 75% of the combined voting power of the voting securities of which are owned by Persons in substantially the same proportions as their ownership of the Company immediately prior to such sale. Provided, however, no Change in Control shall be deemed to have occurred if there is consummated any transaction or series of integrated transactions immediately following which the record holders of the combined voting power of the Company's outstanding securities immediately prior to such transaction or series of transactions continue to have substantially the same proportionate ownership in an entity which owns all or substantially all of the assets of the Company immediately following such transaction or series of transactions. (b) The term "Person" means any person (as defined in Section 3(a)(9) of the Exchange Act, as such term is modified in Sections 13(d) and 14(d) of the Exchange Act) other than (i) any employee plan established by the Company, (ii) the Company or any of its affiliates (as defined in Rule 12b-2 promulgated under the Exchange Act) prior to the transaction resulting in the Change in Control, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, or (iv) a corporation owned, directly or indirectly, by stockholders of the Company in substantially the same proportions as their ownership of the Company. (c) The term "Beneficial Owner" means beneficial owner as defined in Rule 13d-3 promulgated under the Exchange Act. (d) The term "Board" means the Board of Directors of the Company. (e) The term "Committee" means the Compensation and Stock Option Committee of the Board, or successor thereto, as determined by the Board. Section 5. Death; Total Disability. In the event Grantee's Employment Period terminates by reason of Grantee's death or Total Disability, all Awarded Shares shall thereupon vest and be transferable. Grantee's disability shall be deemed to be a "Total Disability" if Grantee is prevented by bodily injury, illness or disease from performing each and every duty of any occupation for which Grantee is reasonably fitted by training, education or experience and such disability is reasonably expected to last for a continuous period of 24 months (with the existence of such disability evidenced by such medical certification as the Company may require). Section 6. Issuance Procedure. Issuance of any shares pursuant hereto shall be limited to the extent necessary to comply with all applicable laws and regulations and applicable requirements of any securities exchange or similar entity. The Company, at its option, may either include an appropriate legend on certificates representing such Awarded Shares or postpone delivery of such certificates until such restrictions are no longer applicable. If it is determined that any agreement from Grantee is appropriate in order to comply with any registration, listing or other legal requirement applicable to the Company, Grantee will be required to deliver such agreement prior to the delivery or subsequent transfer of any shares issued hereunder. Section 7. Tax Withholding. To the extent that receipt of Awarded Shares or the lapse of any restrictions on such Awarded Shares results in income to Grantee for Federal or State income tax purposes, Grantee shall deliver to the Company on the Vesting Date the amount of any Federal and State withholding taxes as may be required for the Company to meet its minimum statutory withholding obligations under applicable tax laws and regulations as determined by the Company, and if Grantee fails to do so, the Company shall have the right to withhold such whole number of Awarded Shares as shall, when multiplied by the fair market value of a share of Common Stock on the Vesting Date, be sufficient for such purpose. The Grantee acknowledges that the tax laws and regulations applicable to the Awarded Shares and the disposition of the Awarded Shares following vesting are complex and subject to change. Section 8. Investment Representation. The Grantee hereby represents and warrants to the Company that the Grantee, by reason of the Grantee's business or financial experience (or the business or financial experience of the Grantee's professional advisors who are unaffiliated with and who are not compensated by the Company or any affiliate or selling agent of the Company, directly or indirectly), has the capacity to protect the Grantee's own interests in connection with the transactions contemplated under this Award. Section 9. Transferability. This Award is not transferable except by will, the laws of descent and distribution, or pursuant to a domestic relations order. Section 10. Rights of Grantee. Nothing herein contained shall confer on Grantee any right with respect to continued employment by the Company or a subsidiary, or interfere with the right of the Company or such subsidiary to terminate the employment of Grantee at any time or, except as to shares actually issued, confer any rights as a Company stockholder upon Grantee. Rights of grantees are governed by the Plan, under which the Committee may make adjustments necessary to reflect changes made in the Company's Common Stock. HARTMARX CORPORATION By ----------------------------- Secretary EX-10 6 hartex10a7.txt EXHIBIT 10-A-7 - DIRECTOR STOCK OPTION EXHIBIT 10-A-7 HARTMARX CORPORATION DIRECTOR STOCK OPTION GRANTED PURSUANT TO THE 2006 STOCK COMPENSATION PLAN FOR NON-EMPLOYEE DIRECTORS Section 1. Grant Date. This Director Stock Option ("Option") is granted ____________________ ("Grant Date"), pursuant to and subject to all of the terms and conditions of the 2006 Stock Compensation Plan for Non-Employee Directors ("Plan") of Hartmarx Corporation ("Company"). Section 2. Option Grant. The Company hereby grants to ____________________ ("Grantee") the Option to acquire a total of ______________ shares of Company Common Stock ("Common Stock") at the price of ________________ ($__________) per share, upon the terms and conditions hereinafter stated. Section 3. Option Term. This Option shall expire on _________________ ("Expiration Date"). Section 4. Exercise. 4.1 Generally. One hundred Percent (100%) of this Option shall be exercisable six (6) months after the Grant Date or, if earlier, upon Grantee's death or Disability (as defined in Section 409A(a)(2)(C) of the Code). Except as provided in the foregoing sentence or in Section 4.2, this Option shall be forfeited if Grantee's service on the Board terminates before this Option becomes exercisable. This Option may not be exercised, in whole or in part, with respect to any fractional share. 4.2 Change In Control. Notwithstanding the foregoing, 100% of this Option shall become immediately exercisable in the event of any Change in Control, except a Management Change in Control which is not approved by the Board, provided, however, that 50% of the portion, if any, of this Option not previously exercisable pursuant to Subsection 4.1 hereof shall become immediately exercisable in the event of any Management Change in Control not approved by the Board but which is directly or indirectly attributable to, and with respect to which the first public announcement occurs after, the Board's receipt of a bona fide offer from any Person other than Grantee (or any Person acting in concert with Grantee) which, if accepted, would result in a Change in Control. 4.3 Definitions. (a) A "Change in Control" shall be deemed to have occurred if: (i) any Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing 25% or more of the combined voting power of the Company's then outstanding securities, excluding any Person who becomes such a Beneficial Owner in connection with a merger or consolidation which would result in the record holders of the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or any parent thereof) in substantially the same proportions as their ownership immediately prior to such merger or consolidation at least 75% of the combined voting power of the voting securities of the Company or such surviving entity or any parent thereof outstanding immediately after such merger or consolidation; provided that this exclusion shall only apply to the percentage obtained by merger or consolidation and shall cease to apply in the event additional securities are purchased in another transaction; or (ii) during any period of two consecutive years (not including any period prior to the date of the Agreement), individuals who at the beginning of such period constitute the Board of Directors of the Company (the "Board") (together with any new directors whose election by the Board or whose nomination for election by the shareholders of the Company was approved by a vote of at least 66 2/3% of the directors of the Company then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved unless the initial assumption of office of such subsequently-elected or appointed director was in connection with (i) an actual or threatened election contest, including a consent solicitation, relating to the election or removal of one or more members of the Board, (ii) a "tender offer" (as such term is used in Section 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")), (iii) a proposed merger or consolidation of the Company, or (iv) a request, nomination or suggestion of any one or more Beneficial Owners of voting securities of the Company representing 20% or more of the aggregate voting power of the voting securities of the Company or the surviving corporation, as applicable) cease for any reason to constitute at least 66 2/3% of the Board then in office; or (iii) there is consummated a merger or consolidation of the Company (or any direct or indirect subsidiary of the Company) with any other corporation, other than a merger or consolidation which would result in the record holders of the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or any parent thereof) in substantially the same proportions as their ownership immediately prior to such merger or consolidation at least 75% of the combined voting power of the voting securities of the Company or such surviving entity or any parent thereof outstanding immediately after such merger or consolidation; or (iv) the stockholders of the Company approve a plan of complete liquidation or dissolution of the Company or there is consummated an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets, other than a sale or disposition by the Company of all or substantially all of the Company's assets to an entity at least 75% of the combined voting power of the voting securities of which are owned by Persons in substantially the same proportions as their ownership of the Company immediately prior to such sale. Provided, however, no Change in Control shall be deemed to have occurred if there is consummated any transaction or series of integrated transactions immediately following which the record holders of the combined voting power of the Company's outstanding securities immediately prior to such transaction or series of transactions continue to have substantially the same proportionate ownership in an entity which owns all or substantially all of the assets of the Company immediately following such transaction or series of transactions. (b) The term "Management Change in Control" means a Change in Control which occurs prior to the date which is six months after the Grant Date pursuant to which Grantee (alone or with others) acquires or retains, directly or indirectly, the power to direct or cause the direction of the management and policies of the Company (whether through the ownership of voting securities, by contract, or otherwise) and which is directly or indirectly attributable to a public announcement by Grantee (or others acting in concert with Grantee) of an intention to take actions which, if consummated, would constitute such Management Change in Control. (c) The term "Person" means any person (as defined in Section 3(a)(9) of the Exchange Act, as such term is modified in Sections 13(d) and 14(d) of the Exchange Act) other than (i) any employee plan established by the Company, (ii) the Company or any of its affiliates (as defined in Rule 12b-2 promulgated under the Exchange Act) prior to the transaction resulting in the Change in Control, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, or (iv) a corporation owned, directly or indirectly, by stockholders of the Company in substantially the same proportions as their ownership of the Company. (d) The term "Beneficial Owner" means beneficial owner as defined in Rule 13d-3 promulgated under the Exchange Act. (e) The term "Board" means the Board of Directors of the Company. (f) The term "Committee" means the Compensation and Stock Option Committee of the Board, or successor thereto, as determined by the Board. (g) The term "Non-Employee Director" means each member of the Board who is not an employee of the Company or any subsidiary or affiliate. 4.4 Post-Termination Exercise. Except as otherwise provided in Section 4.5, any portion of this Option which shall become exercisable shall, until exercised, continue to be exercisable for a period of three (3) years (but not after the Expiration Date) after Grantee ceases to be a member of the Board. 4.5 Death. If Grantee dies, the executor of Grantee's estate may exercise this Option within three (3) years after the date of Grantee's death (but not after the Expiration Date). 4.6 Limitations. Exercise of this Option, and the issuance of any shares, shall be limited to the extent necessary to comply with all applicable laws and regulations and the applicable requirements of any securities exchange or similar entity. Rights of grantees are governed by the Plan, which is intended to meet the requirements of Rule 16(b)-3 under the 1934 Act. If any questions of interpretation arise, they shall be resolved by the Board of Directors or the Committee. Section 5. Exercise Procedure. In order to exercise this Option, Grantee must give written notice thereof to the Company's Secretary at the Company's main office. The notice must (i) state the number of shares being purchased for cash (and the number of shares being acquired upon payment of shares of Common Stock, if any); and (ii) be satisfactory in form and substance to the Company in all other respects. The notice must be accompanied by a check in the amount of any cash payment required to effect such exercise, and, if payment of all or any portion of the option price is made in share(s) of Common Stock, by stock certificate(s) (endorsed in blank and in proper form to transfer ownership of such shares to the Company) representing shares having a cash value at the time of exercise equal to the amount of the cash payment in lieu of which such share(s) are being delivered. If it is determined that any agreement from Grantee is appropriate in order to comply with any registration, listing or other legal requirement applicable to the Company, Grantee will also be required to deliver such an agreement. Section 6. Transferability. This Option is not transferable except by will, the laws of descent and distribution, to Immediate Family members (as defined in and in accordance with the provisions of the Plan) or pursuant to a qualified domestic relations order, and may be exercised during the lifetime of Grantee only by Grantee or his legal representative as hereinabove provided, and after the death of Grantee only as hereinabove provided. Section 7. Rights of Grantee. Nothing herein contained shall interfere with the right of the Board or the Company's stockholders to remove Grantee from the Board at any time, or, except as to shares actually issued, confer any rights as a Company stockholder upon Grantee. Rights of grantees are governed by the Plan, under which the Board may make adjustments necessary to reflect changes made in the Company's Common Stock. HARTMARX CORPORATION By ---------------------------- Secretary -----END PRIVACY-ENHANCED MESSAGE-----