exv10w4



 





Exhibit 10.4



STOCK APPRECIATION RIGHTS AGREEMENT



GRANTED TO:




DATE OF GRANT:




GRANTED PURSUANT TO: A.C. Moore Arts & Crafts, Inc. 2007 Stock Incentive Plan




NUMBER OF SARS:




EXERCISE BASE PRICE:




VESTING SCHEDULE:




     1. This Stock Appreciation Rights Agreement (the “Agreement”) is made and entered into as of
                     (the “Date of Grant”) between A.C. Moore Arts & Crafts, Inc., a Pennsylvania
corporation (the “Company”), and                     , as a participant (the “Participant”) in the
A.C. Moore Arts & Crafts, Inc. 2007 Stock Incentive Plan (the “Plan”), a copy of which is enclosed
herewith. Capitalized terms not defined herein shall have the meanings ascribed thereto in the
Plan.



     2. The
Participant is granted ___ Stock Appreciation Rights (“SARs”), which represent a right
to receive a payment in [cash] [shares of Common Stock]an amount equal to the excess, if any, of
(x) the Fair Market Value of ___ shares of Common Stock on the date the SARs are exercised over
(y) the exercise base price set forth in this Agreement, which represents the Fair Market Value of
such shares on the Date of Grant. The SARs are granted as provided for under the Plan and are
subject to the terms and conditions set forth in the Plan and this Agreement. The SARs granted
hereunder are a matter of separate inducement and are not in lieu of salary or other compensation
for the services of a Participant to the Company or any of its Affiliates.



     3. The
SARs’ exercise base price is $ ___ per share.



     4. The SARs shall become exercisable according to the following vesting schedule:



[In whole or in part, from immediate vesting to any daily, monthly or yearly vesting up to 10 years
and in combination with any or none of the performance measures permitted to be used under the
Plan, either individually or in any combination and with or without acceleration.]



     5. Notwithstanding anything herein to the contrary, if there is a Change in Control of the
Company, all unvested SARs granted under this Agreement shall become fully vested immediately upon
the occurrence of the Change in Control and such vested SARs shall be paid out or settled [in cash]
[in shares of Common Stock], as applicable, within 60 days upon the occurrence of the Change in
Control, subject to requirements of applicable laws and regulations. The Committee shall have full
discretion, notwithstanding anything herein or in this Agreement to the contrary, with respect to
an outstanding SARs upon the merger or consolidation or sale or other disposition of all or
substantially all of the assets of the Company, to provide that the securities of another entity
may be substituted hereunder for the shares of Common Stock and to make equitable adjustment with
respect thereto.



     6. Notwithstanding, anything herein to the contrary, the Committee, in its discretion, may
determine that, upon the occurrence of a Change in Control of the Company, each SAR outstanding
hereunder shall terminate and such holder shall receive, within 60 days upon the occurrence of the
Change in Control, with respect to each share of Common Stock subject to such SAR, an amount equal
to the excess of the Fair Market Value of such shares of Common Stock immediately prior to the
occurrence



 









 







of such Change in Control over the exercise price per share of such SAR; such amount to be
payable in cash, in one or more kinds of property (including the property, if any, payable in the
transaction) or in a combination thereof, as the Committee, in its discretion, shall determine.



     7. If the Participant terminates employment with the Company due to death or Disability:




	 	(a)	 	all unexercisable Stock Appreciation Rights held by the Participant on the date
of the Participant’s termination of employment due to death or the date of the
termination of his or her employment related to Disability, as the case may be, shall
immediately become exercisable as of such date and shall remain exercisable until the
earlier of (i) the end of the one-year period following the date of the Participant’s
termination of employment due to death or the date of the termination of his or her
employment related to Disability, as the case may be, or (ii) the date the Stock
Appreciation Right would otherwise expire; and
	 
	 	(b)	 	all exercisable Stock Appreciation Rights held by the Participant on the date
of the Participant’s termination of employment due to death or the date of the
termination of his or her employment related to Disability, as the case may be, shall
remain exercisable until the earlier of (i) the end of the one-year period following
the date of the Participant’s termination of employment due to death or the date of the
termination of his or her employment related to Disability, as the case may be, or (ii)
the date the Stock Appreciation Right would otherwise expire.





     8. If the Participant’s employment is terminated by the Company for Cause, all SARs, whether
or not vested, earned or exercisable, held by the Participant on the date of the termination of his
or her employment for Cause shall immediately be forfeited by such Participant as of such date.



     9. If a Participant’s employment is terminated for any reason, including, without limitation,
retirement, other than for Cause or other than due to death or Disability, all exercisable Stock
Appreciation Rights held by the Participant on the date of the termination of his or her employment
shall remain exercisable until the earlier of (i) the end of the 90-day period following the date
of the termination of the Participant’s employment, or (ii) the date the Stock Appreciation Right
would otherwise expire.



     10. Notwithstanding anything contained in this Agreement to the contrary, the Committee may,
in its discretion, provide that:




	 	(a)	 	any or all unexercisable Stock Appreciation Rights held by the Participant on
date of the termination of his or her employment (for other than death or Disability)
shall immediately become exercisable as of such date and shall remain exercisable until
a date that occurs on or prior to the date the Stock Appreciation Right is scheduled to
expire; and
	 
	 	(b)	 	any or all exercisable Stock Appreciation Rights held by the Participant on the
date of the Participant’s death and/or the date of the termination of his or her
employment shall remain exercisable until a date that occurs on or prior to the date
the Stock Appreciation Right is scheduled to expire.





     11. The SARs, unless sooner terminated or exercised in full, shall expire on the [from the
first through tenth] anniversary of the Date of Grant and, notwithstanding anything herein to the
contrary, no SARs may be exercised after such date.



 









 





     12. During the Participant’s lifetime, the SARs shall not be subject in any manner to
alienation, anticipation, sale, assignment, pledge, encumbrance or other transfer and shall be
exercisable only by the Participant. Upon the death of the Participant, (i) the SARs shall be
exercisable only by the executor or administrator of the estate of the deceased Participant or the
person or persons to whom the deceased Participant’s rights with respect to the SARs shall pass by
will or the laws of descent and distribution and (ii) the SARs shall be exercisable in accordance
with Section 7 of this Agreement.



     13. To the extent the SARs become exercisable, the participant may exercise the SARs in whole
or in part (at any time or from time to time, except as otherwise provided herein) until their
expiration or earlier termination. In no event may the Participant exercise the SARs for a
fraction of a share. In no event may the Participant exercise for less than 100 shares, unless the
exercise is for all of the remaining exercisable shares.



     14. Any notice of exercise of the SARs shall be in writing addressed to the Corporate
Secretary of the Company at the principal place of business of the Company, specifying the number
of SARs being exercised and the date of exercise.



     15. All payments or distributions of an Award made pursuant to this Agreement shall be net of
any amounts required to be withheld pursuant to applicable federal, state and local tax withholding
requirements. If the Company proposes or is required to distribute Common Stock pursuant to this
Agreement, it may require the Participant receiving such Common Stock to remit to it an amount
sufficient to satisfy such tax withholding requirements prior to the delivery of any certificates
for such Common Stock. In lieu thereof, the Company employing the Participant shall have the right
to withhold the amount of such taxes from any other sums due or to become due from the Company or
the Affiliate, as the case may be, to the Participant receiving Common Stock, as the Committee
shall prescribe. The Committee may, in its discretion, and subject to such rules as the Committee
may adopt (including any as may be required to satisfy applicable tax and/or non-tax regulatory
requirements), permit a Participant to pay all or a portion of the federal, state and local
withholding taxes arising in connection with this Award consisting of shares of Common Stock by
electing to have the Company withhold shares of Common Stock having a Fair Market Value equal to
the amount of tax to be withheld, such tax calculated at rates required by statute or regulation.



     16. The Participant shall not have any of the rights of a shareholder with respect to the
shares of Common Stock issuable upon exercise of the SARs until the SARs are exercised and the
Participant receives such shares of Common Stock.



     17. If the Company, in its sole discretion, shall determine that it is necessary, to comply
with applicable securities laws, the certificate or certificates representing the shares issued
upon the exercise of the SARs shall bear an appropriate legend in form and substance, as determined
by the Company, giving notice of applicable restrictions on transfer under or with respect to such
laws.



     18. The Participant covenants and agrees with the Company that if, at the time of exercise of
the SARs, there does not exist a registration statement on an appropriate form under the Securities
Act of 1933, as amended (the “Act”), which registration statement shall have become effective and
shall include, or shall be accompanied by, as applicable, a prospectus that is current with respect
to the shares issuable upon exercise of the SARs, (i) he or she is purchasing the shares for his or
her own account and not with a view to the resale or distribution thereof, (ii) any subsequent
offer for sale or sale of any such shares shall be made either pursuant to (x) a registration
statement on an appropriate form under the Act, which registration statement shall have become
effective and shall be current with respect to the shares being offered and sold, or (y) a specific
exemption from the registration requirements of the Act, but in claiming such exemption, the
Participant shall, prior to any offer for sale or sale of such shares, obtain a favorable



 









 







written opinion from counsel for or approved by the Company as to the applicability of such
exemption and (iii) the certificate or certificates evidencing such shares shall bear a legend to
the effect of the foregoing.



     19. For purposes of this Paragraph 19, (i) if there is an employment agreement or at will
offer letter between the Participant and the Company or any of its Affiliates in effect containing
non-competition provisions, then such provisions shall govern the Participant’s non-competition
obligations; or (ii) if non-competition provisions are not included in such employment agreement or
at will offer letter or if there is no employment agreement or at will offer letter between the
Participant and the Company or any of its Affiliates in effect, then the following provisions of
this Paragraph 19 shall govern the Participant’s non-competition obligations. In consideration of
the grant of the SARs to the Participant, the receipt and sufficiency of which are hereby
acknowledged, the Participant agrees that for a period of six (6) months after termination of the
Participant’s employment (the “Non-Compete Period”), the Participant shall not directly or
indirectly own any interest in, manage, control, participate in, consult with, render services for,
or in any manner engage in any business competing with the businesses of the Company or its
Affiliates, as such businesses exist or are in process on the date of the termination of
Participant’s employment, within any geographical area in which the Company or its Affiliates
engage or actively plan to engage in such businesses. Nothing herein shall prohibit Participant
from being a passive owner of not more than 2% of the outstanding stock of any class of a
corporation which is publicly traded, so long as Participant has no direct or indirect active
participation in the business of such corporation. During the Non-Compete Period, the Participant
shall not directly or indirectly through another person or entity (i) induce or attempt to induce
any employee of the Company or any Affiliate to leave the employ of the Company or such Affiliate,
or in any way interfere with the relationship between the Company, its Affiliates and any employee
thereof, (ii) hire an employee of the Company or any of its Affiliates, or (iii) induce or attempt
to induce any customer, supplier, licensee, licensor, franchisee or other business relation of the
Company or any of its Affiliates to cease doing business with the Company or such Affiliate, or in
any way interfere with the relationship between any such customer, supplier, licensee, licensor,
franchisee, or business relation and the Company or any of its Affiliates (including, without
limitation, making any negative statements or communications about the Company or its Affiliates).
The provisions of this Paragraph 19 will be enforced to the fullest extent permitted by the law in
the state in which Participant resides or is employed at the time of the enforcement of the
provision. If, at the time of enforcement of this Paragraph 19, a court shall hold that the
duration, scope or area restrictions stated herein are unreasonable under circumstances then
existing, the parties agree that the maximum duration, scope or area reasonable under such
circumstances shall be substituted for the stated duration, scope or area and that the court shall
be allowed to revise the restrictions contained herein to cover the maximum period, scope and area
permitted by law. Participant agrees that the restrictions contained in this Paragraph 19 are
reasonable. In the event of the breach or a threatened breach by Participant of any of the
provisions of this Paragraph 19, the Company, in addition and supplementary to other rights and
remedies existing in its favor, may apply to any court of law or equity of competent jurisdiction
for specific performance and/or injunctive or other relief in order to enforce or prevent any
violations of the provisions hereof (without posting a bond or other security). In addition, in the
event of an alleged breach or violation by Participant of this Paragraph 19, the Non-Compete Period
shall be tolled until such breach or violation has been duly cured.



     20. This Agreement is subject to all terms, conditions, limitations and restrictions contained
in the Plan, which shall be controlling in the event of any conflicting or inconsistent provisions.
In the event, however, of any conflict between the provisions of this Agreement or the Plan and the
provisions of an employment or change-in-control agreement between the Company and the Participant,
the provisions of the latter shall prevail.



 









 





     21. This Agreement is not a contract of employment and the terms of the Participant’s
employment shall not be affected hereby or by any agreement referred to herein except to the extent
specifically so provided herein or therein. Nothing herein shall be construed to impose any
obligation on the Company to continue the Participant’s employment, and it shall not impose any
obligation on the Participant’s part to remain in the employ of the Company or any of its
Affiliates. This Agreement shall be governed by and construed in accord with the laws of the
Commonwealth of Pennsylvania, excluding principles of conflicts of law.



 









 





     IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date written above.



	 	 	 	 	 	 	 
	 	 	A.C. MOORE ARTS & CRAFTS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






ACCEPTED:




By:                                                             

[Insert the name of the Participant]