As filed with the Securities and Exchange Commission
on June 29, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
J.JILL,
INC.
(Exact name of Registrant as specified in its charter)
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Delaware
(State or other jurisdiction of
incorporation
or organization) |
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45-1459825
(IRS Employer
Identification No.) |
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4 Batterymarch Park
Quincy, MA 02169
(Address of Principal Executive Offices) |
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02169
(Zip Code) |
J.Jill, Inc. Amended and Restated 2017 Omnibus Equity Incentive Plan
(Full title of the plan)
Mark Webb
Executive Vice President, Chief Financial Officer and Chief Operating Officer
4 Batterymarch Park
Quincy, MA 02169
(Name and address of agent of service)
(617) 376-4300
(Telephone number, including area code, of agent
for service)
COPIES TO:
Raphael M. Russo, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison
LLP
1285 Avenue of the Americas
New York,
New York 10019–6064
(212) 373-3000
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See
the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,”
and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer |
☐ |
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Accelerated filer |
☒ |
| Non-accelerated filer |
☐ |
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Smaller reporting company |
☒ |
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Emerging growth company |
☐ |
If an emerging growth company, indicate
by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
EXPLANATORY NOTE
J.Jill, Inc. (the “Company”)
has prepared this Registration Statement on Form S-8 (the “Registration Statement”) in accordance with the requirements
of Form S-8 under the Securities Act of 1933, as amended (the “Securities Act”), to register an additional 750,000
shares of its common stock, par value $0.01 per share, which is referred to as the Common Stock, that are reserved for issuance upon exercise
of options granted, or in respect of awards granted, under the J.Jill, Inc. Amended and Restated 2017 Omnibus Equity Incentive Plan (the
“A&R Plan”).
On April 14, 2023 the Company filed with the
Securities and Exchange Commission (the “Commission”) a definitive proxy statement that included a proposal to approve
the A&R Plan, which proposal was approved by the Company’s stockholders on June 1, 2023.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information
specified in Part I of Form S-8 will be sent or given to participants in the A&R Plan as specified by Rule 428(b)(1) under the Securities
Act. Such documents are not being filed with the Commission as part of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference into this Registration Statement
pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act.
| Item 2. | Company Information and Employee Plan Annual Information |
The Company will furnish without charge to
each person to whom the prospectus is delivered, upon the written or oral request of such person, a copy of any and all of the documents
incorporated by reference in Item 3 of Part II of this Registration Statement, other than exhibits to such documents (unless such
exhibits are specifically incorporated by reference to the information that is incorporated). Those documents are incorporated by reference
in the Section 10(a) prospectus. Requests should be directed to J.Jill, Inc., 4 Batterymarch Park, Quincy, MA 02169, Attention:
Secretary and General Counsel, Telephone number (617) 376-4300.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
| Item 3. | Incorporation of Documents by Reference |
The following documents filed with the Commission
by the Company are incorporated by reference in this Registration Statement:
| 1. | The Company’s Annual Report on Form 10-K for the fiscal year ended January 28, 2023, filed with the Commission on March 30, 2023 (the “2022 Form 10-K”); |
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| | 2. | The portions of the Company’s Definitive
Proxy Statement on Schedule 14A, filed with the Commission on April 14, 2023, that are incorporated by reference into Part III of the
2022 Form 10-K; |
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| 3. | The Company’s Quarterly Report on Form 10-Q filed with the Commission on June 7, 2023; |
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| | 4. | The Company’s Current Report on Form
8-K filed with the Commission on April 5, 2023, April 6, 2023, May 16, 2023 and June 1, 2023; and |
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| 5. | The description of the Common Stock set forth in the Company’s Registration Statement on Form 8-A filed pursuant to Section 12
of the Securities Exchange Act of 1934, as amended, on March 7, 2017, and any amendment or report filed for the purpose of updating any
such description. |
In addition, all reports and documents filed
by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to
the date hereof and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold
or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and made a part hereof
from the date of the filing of such documents.
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Item 4. |
Description of Securities |
Not Applicable.
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Item 5. |
Interests of Named Experts and Counsel |
Not Applicable.
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Item 6. |
Indemnification of Directors and Officers |
Section 145 of the Delaware General Corporation Law (the “DGCL”)
provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection
with any threatened, pending or completed actions, suits or proceedings in which such person is made a party by reason of such person
being or having been a director, officer, employee or agent to the Company. The DGCL provides that Section 145 is not exclusive of other
rights to which those seeking indemnification may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors
or otherwise. The Company’s certificate of
incorporation, as amended, provides for indemnification
by the Company of its directors, officers and employees to the fullest extent permitted by the DGCL.
Section 102(b)(7) of the DGCL permits a corporation
to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or
its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such a provision may not eliminate or
limit the liability of (i) a director or officer for any breach of the director’s or officer’s duty of loyalty to the corporation
or its stockholders, (ii) a director or officer for acts or omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) a director under Section 174 of the DGCL regarding liability for unlawful payment of dividends or unlawful stock
repurchases and redemptions, (iv) a director or officer for any transaction from which the director or officer derived an improper personal
benefit or (v) an officer in any action by or in the right of the corporation. The Company’s certificate of incorporation,
as amended, provides for such limitation of liability in the case of the Company’s directors, but does not limit the liability of
the Company’s officers.
The Company maintains standard policies of insurance
under which coverage is provided (a) to its directors and officers against loss rising from claims made by reason of breach of duty or
other wrongful act, and (b) to the Company with respect to payments which may be made by the Company to such officers and directors pursuant
to the above indemnification provision or otherwise as a matter of law.
Reference is made to Item 9 for the Company’s
undertakings with respect to indemnification for liabilities arising under the Securities Act.
The Company has entered into customary indemnification
agreements with its executive officers and directors that provide them, in general, with customary indemnification in connection with
their service to the Company or on its behalf.
| Item 7. | Exemption from Registration Claimed |
Not Applicable.
Exhibits
| 4.1 | Certificate of Incorporation of J.Jill, Inc. (incorporated by reference from Exhibit 3.1 to the Company’s Form 10-K, filed on April 28, 2017 (File No. 001-38026)). |
| 4.2 | Certificate of Amendment to the Certificate of Incorporation of J.Jill, Inc. (incorporated by reference from Exhibit 3.1 to the Company’s Form 8-K, filed on November 9, 2020 (File No. 001-38026)). |
| 4.3 | Bylaws of J.Jill, Inc. (incorporated by reference from Exhibit 3.2 to the Company’s Form 10-K, filed on April 28, 2017 (File No. 001-38026)). |
| 5.1* | Opinion of Paul, Weiss, Rifkind, Wharton & Garrison LLP as to legality of the Common Stock. |
| 23.1* | Consent of Grant Thornton LLP, independent registered public accounting firm. |
| | 23.2* | Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm. |
| 23.3* | Consent of Paul, Weiss, Rifkind, Wharton & Garrison LLP (included in Exhibit 5.1 to this Registration Statement). |
* Filed herewith.
The Company hereby undertakes:
| (a)(1) | To file during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
| (i) | to include any prospectus required by Section 10(a)(3) of the Securities Act; |
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| | (ii) | to reflect in the prospectus any facts
or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding
the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table
in the effective registration statement; |
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| (iii) | to include any material information with respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such information in the registration statement; |
provided, however, that, paragraphs
(a)(1)(i) and (a)(1)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to the Commission by the Company pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) that are incorporated by reference in the
registration statement;
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(2) |
That, for the purpose of
determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement
relating to |
| | | the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
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| (3) | To remove from registration by means of a post-effective amendment any of the securities being registered hereby which remain unsold
at the termination of the offering. |
| (b) | The Company hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Company’s
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. |
| (c) | Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director,
officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. |
SIGNATURES
Pursuant to the requirements of the Securities
Act, J.Jill, Inc. certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and
has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Quincy,
state of Massachusetts, on June 29, 2023.
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J.JILL, INC. |
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By: |
/s/ Mark Webb |
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Name: |
Mark Webb |
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Title: |
Executive Vice President, Chief Financial and Operating Officer |
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POWER OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each individual whose signature appears below hereby constitutes and appoints Kathleen Stevens, acting
singly, his or her true and lawful agent, proxy and attorney-in-fact, with full power of substitution and resubstitution, for him and
her and in his or her name, place and stead, in any and all capacities, to (i) act on, sign and file with the Securities and Exchange
Commission any and all amendments (including post-effective amendments) to this registration statement together with all schedules and
exhibits thereto and any subsequent registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended,
together with all schedules and exhibits thereto, (ii) act on, sign and file such certificates, instruments, agreements and other
documents as may be necessary or appropriate in connection therewith, (iii) act on and file any supplement to any prospectus included
in this registration statement or any such amendment or any subsequent registration statement filed pursuant to Rule 462(b) under
the Securities Act of 1933, as amended, and (iv) take any and all actions which may be necessary or appropriate in connection therewith,
granting unto such agents, proxies and attorneys-in-fact, and each of them, full power and authority to do and perform each and every
act and thing necessary or appropriate to be done, as fully for all intents and purposes as he or she might or could do in person, hereby
approving, ratifying and confirming all that such agents, proxies and attorneys-in-fact or any of their substitutes may lawfully do or
cause to be done by virtue thereof.
Pursuant
to the requirements of the Securities Act, this registration statement and Power of Attorney have been signed on June 29, 2023, by the
following persons in the capacities indicated.
| Signature |
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Title |
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| /s/ Claire Spofford |
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Chief Executive Officer, President and Director |
| Claire Spofford |
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(Principal Executive Officer) |
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| /s/ Mark Webb |
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Executive Vice President, Chief Financial and Operating Officer |
| Mark Webb |
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(Principal Financial Officer and
Principal Accounting Officer) |
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| /s/ Michael Rahamim |
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Chairman of the Board of Directors |
| Michael Rahamim |
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| /s/ Andrew Rolfe |
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Director |
| Andrew Rolfe |
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| /s/ Michael Recht |
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Director |
| Michael Recht |
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| /s/ James Scully |
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Director |
| James Scully |
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| /s/ Jyothi Rao |
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Director |
Jyothi Rao |
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| /s/ Michael Eck |
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Director |
Michael Eck |
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| /s/ Shelley Milano |
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Director |
| Shelley Milano |
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EXHIBIT 5.1
Paul, Weiss, Rifkind,
Wharton & Garrison LLP
1285 Avenue of the
Americas
New York, New York
10019-6064
(212) 373-3000
(212) 757-3990
June 29, 2023
J.Jill, Inc.
4 Batterymarch Park
Quincy, MA 02169
J.Jill, Inc. Amended and Restated 2017 Omnibus
Equity Incentive Plan
Ladies and Gentlemen:
We have acted as special counsel
to J.Jill, Inc., a Delaware corporation (the “Company”), in connection with the Registration Statement on Form S-8
(the “Registration Statement”) of the Company, filed with the Securities and Exchange Commission (the “Commission”)
pursuant to the Securities Act of 1933, as amended (the “Act”), and the rules and regulations thereunder (the “Rules”).
You have asked us to furnish our opinion as to the legality of the securities being registered under the Registration Statement. The Registration
Statement relates to the registration under the Act of 750,000 shares of common stock, par value $0.01 per share, of the Company (collectively,
the “Shares”), issuable in respect of awards to be granted under the J.Jill, Inc. Amended and Restated 2017 Omnibus
Equity Incentive Plan (the “A&R Plan”).
In connection with the furnishing
of this opinion, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents
(collectively, the “Documents”):
1.
the Registration Statement;
2.
the A&R Plan and the forms of award agreements (collectively, the “Agreements”) relating to awards granted
under the A&R Plan;
3.
the Certificate of Incorporation of the Company, included as Exhibit 4.1 to the Company’s Registration Statement;
4.
the Certificate of Amendment to the Certificate of Incorporation of the Company, included as Exhibit 4.2 to the Company’s
Registration Statement; and
5.
the By-laws of the Company, included as Exhibit 4.3 to the Company’s Registration Statement.
In addition, we have examined (i)
such corporate records of the Company that we have considered appropriate, including copies of resolutions of the board of directors of
the Company relating to the issuance of the Shares, certified by the Company and (ii) such other certificates, agreements and documents
that we deemed relevant and necessary as a basis for the opinions expressed below. We have also relied upon the factual matters contained
in the representations and warranties of the Company made in the Documents and upon certificates of public officials and the officers
of the Company.
In our examination of the documents referred to above, we have assumed,
without independent investigation, the genuineness of all signatures, the legal capacity of all individuals who have executed any of the
documents reviewed by us, the authenticity of all documents submitted to us as originals, the conformity to the originals of all
documents submitted to us as certified,
photostatic, reproduced or conformed copies of valid existing agreements or other documents, the authenticity of all the latter documents
and that the statements regarding matters of fact in the certificates, records, agreements, instruments and documents that we have examined
are accurate and complete.
Based upon the above, and subject
to the stated assumptions, exceptions and qualifications, we are of the opinion that the Shares have been duly authorized by all necessary
corporate action on the part of the Company and, when issued and delivered in accordance with the terms of the A&R Plan and any applicable
Agreement under the A&R Plan, the Shares will be validly issued, fully paid and non-assessable.
The opinion expressed above is limited
to the General Corporation Law of the State of Delaware. Our opinion is rendered only with respect to the laws, and the rules, regulations
and orders under those laws, that are currently in effect.
We hereby consent to use of this opinion as an exhibit to the Registration
Statement. In giving this consent, we do not thereby admit that we come within the category of persons whose consent is required by the
Act or the Rules.
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Very truly yours, |
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/s/ PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP |
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PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP |
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We have issued our reports dated March 30, 2023, with respect to the
consolidated financial statements and internal control over financial reporting of J.Jill Inc. included in the Annual Report on Form 10-K
for the year ended January 28, 2023, which are incorporated by reference in this Registration Statement. We consent to the incorporation
by reference of the aforementioned reports in this Registration Statement.
/s/ GRANT THORNTON LLP
Boston, Massachusetts
June 29, 2023
EXHIBIT 23.2
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of J.Jill, Inc. of our report dated April
12, 2021 relating to the financial statements, which appears in J.Jill Inc.'s Annual Report on Form 10-K for the year ended January 28,
2023.
/s/
PricewaterhouseCoopers LLP
Boston, Massachusetts
June
29, 2023
EXHIBIT 99.1
J.Jill, Inc. Amended &
Restated 2017 Omnibus Equity Incentive Plan
1. Purpose. The name of this Plan is the
“J.Jill, Inc. Amended & Restated 2017 Omnibus Equity Incentive Plan” (the “Plan”), which amends
and restates the J.Jill, Inc. 2017 Omnibus Equity Incentive Plan, as amended by the First Amendment to J.Jill, Inc. 2017 Omnibus Equity
Incentive Plan, effective as of June 7, 2018 and the Second Amendment to J.Jill Inc. 2017 Omnibus Equity Incentive Plan, effective as
of June 3, 2021. The Plan is intended to help J.Jill, Inc., a Delaware corporation (including any successor thereto, the “Company”)
and its Affiliates (i) attract and retain key personnel by providing them the opportunity to acquire an equity interest in the Company
or other incentive compensation measured by reference to the value of Common Stock and (ii) align the interests of key personnel with
those of the Company’s shareholders.
2. Effective Date; Duration. The Plan
shall be effective as of the date on which the Plan is approved by the shareholders of the Company (the “Effective Date”).
The expiration date of the Plan, on and after which date no Awards may be granted, shall be the tenth anniversary of the Effective Date;
provided, however, that such expiration shall not affect Awards then outstanding, and the terms and conditions of the Plan
shall continue to apply to such Awards.
3. Definitions. The following definitions
shall apply throughout the Plan.
(a) “Affiliate” means (i)
any person or entity that directly or indirectly controls, is controlled by or is under common control with the Company and/or (ii) to
the extent provided by the Committee, any person or entity in which the Company has a significant interest. The term “control”
(including, with correlative meaning, the terms “controlled by” and “under common control with”), as applied to
any person or entity, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and
policies of such person or entity, whether through the ownership of voting or other securities, by contract or otherwise.
(b) “Award” means, individually
or collectively, any Incentive Stock Option, Nonqualified Stock Option, Stock Appreciation Right, Restricted Stock, Restricted Stock Unit,
Deferred Stock Unit, Other Stock-Based Award and/or Performance Compensation Award granted under the Plan.
(c) “Award Agreement” means
the agreement (whether in written or electronic form) or other instrument or document evidencing any Award granted under the Plan.
(d) “Beneficial Ownership”
has the meaning set forth in Rule 13d-3 promulgated under Section 13 of the Exchange Act.
(e) “Board” means the Board
of Directors of the Company.
(f) “Cause” in the case of
a particular Award, unless the applicable Award agreement states otherwise, (i) shall have the meaning given such term in any employment,
consulting, change-in-control, severance or any other agreement between the Participant and the Company or an Affiliate in effect at the
time of such termination or (ii) if “cause” or term of similar import is not defined or, in the absence of, any such employment,
consulting, change-in-control,
severance or any other agreement, means the Participant’s
(A) willful misconduct or gross neglect of the Participant’s duties; (B) having engaged in conduct harmful (whether financially,
reputationally or otherwise) to the Company or an Affiliate; (C) failure or refusal to perform the Participant’s duties; (D) conviction
of, or guilty or no contest plea to, a felony or any crime involving dishonesty or moral turpitude; (E) willful violation of the written
policies of the Company or an Affiliate; (F) misappropriation or misuse of Company or Affiliate funds or property or other act of personal
dishonesty in connection with the Participant’s employment; or (G) willful breach of fiduciary duty. The determination of whether
Cause exists shall be made by the Committee in its sole discretion.
(g) “Change in Control” shall
mean, in the case of a particular Award, unless the applicable Award Agreement (or any employment, consulting, change-in-control, severance
or other agreement between the Participant and the Company or an Affiliate) states otherwise, the first to occur of any of the following
events:
(i) the acquisition by any Person or related
“group” (as such term is used in Section 13(d) and Section 14(d) of the Exchange Act) of Persons, or persons acting jointly
or in concert, of Beneficial Ownership (including control or direction) of 50% or more (on a fully diluted basis) of either (A) the then-outstanding
shares of Common Stock, including Common Stock issuable upon the exercise of options or warrants, the conversion of convertible stock
or debt, and the exercise of any similar right to acquire such Common Stock (the “Outstanding Company Common Stock”);
or (B) the combined voting power of the then-outstanding voting securities of the Company entitled to vote in the election of directors
(the “Outstanding Company Voting Securities”); but excluding any acquisition by the Company or any of its Affiliates,
or the Investor, its Permitted Transferees or any of their respective Affiliates or by any employee benefit plan sponsored or maintained
by the Company or any of its Affiliates;
(ii) a change in the composition of the
Board such that members of the Board during any consecutive 12-month period (the “Incumbent Directors”) cease
to constitute a majority of the Board. Any person becoming a director through election or nomination for election approved by a valid
vote of at least two thirds of the Incumbent Directors shall be an Incumbent Director; provided, however, that no individual
becoming a director as a result of an actual or threatened election contest, as such terms are used in Rule 14a-12 of Regulation 14A promulgated
under the Exchange Act, or as a result of any other actual or threatened solicitation of proxies or consents by or on behalf of any person
other than the Board, shall be an Incumbent Director;
(iii) the approval by the shareholders
of the Company of a plan of complete dissolution or liquidation of the Company; and
(iv) the consummation of a reorganization,
recapitalization, merger, amalgamation, consolidation, statutory share exchange or similar form of corporate transaction involving the
Company (a “Business Combination”), or sale, transfer or other disposition of all or substantially all of the
business or assets of the Company to an entity that is not an Affiliate of the Company (a “Sale”), unless immediately
following such Business Combination or Sale: (A) more than 50% of the total voting power of the entity
resulting from such Business Combination or the entity that
acquired all or substantially all of the business or assets of the Company in such Sale (in either case, the “Surviving Company”),
or the ultimate parent entity that has Beneficial Ownership of sufficient voting power to elect a majority of the board of directors (or
analogous governing body) of the Surviving Company (the “Parent Company”), is represented by the Outstanding
Company Voting Securities that were outstanding immediately prior to such Business Combination or Sale (or, if applicable, is represented
by shares into which the Outstanding Company Voting Securities were converted pursuant to such Business Combination or Sale), and such
voting power among the holders thereof is in substantially the same proportion as the voting power of the Outstanding Company Voting Securities
among the holders thereof immediately prior to the Business Combination or Sale, (B) no Person (other than any employee benefit plan sponsored
or maintained by the Surviving Company or the Parent Company) is or becomes the beneficial owner, directly or indirectly, of 50% or more
of the total voting power of the outstanding voting securities eligible to elect members of the board of directors (or the analogous governing
body) of the Parent Company (or, if there is no Parent Company, the Surviving Company) and (C) at least a majority of the members of the
board of directors (or the analogous governing body) of the Parent Company (or, if there is no Parent Company, the Surviving Company)
following the consummation of the Business Combination or Sale were Board members at the time of the Board’s approval of the execution
of the initial agreement providing for such Business Combination or Sale.
(h) “Code” means the U.S.
Internal Revenue Code of 1986, as amended, and any successor thereto. References to any section of the Code shall be deemed to include
any regulations or other interpretative guidance under such section, and any amendments or successors thereto.
(i) “Committee” means the
Compensation Committee of the Board or subcommittee thereof or, if no such Compensation Committee or subcommittee thereof exists, or if
the Board otherwise takes action hereunder on behalf of the Committee, the Board.
(j) “Common Stock” means
the common stock of the Company, par value $0.01 per share (and any stock or other securities into which such common stock may be converted
or into which it may be exchanged).
(k) “Deferred Stock Unit”
means a right granted by the Company to a Participant to receive upon settlement, on a deferred basis, one share of Common Stock or the
cash equivalent thereof on the terms contained herein.
(l) “Disability” means cause
for termination of the Participant’s employment or service due to a determination that the Participant is disabled in accordance
with a long-term disability insurance program maintained by the Company or a determination by the U.S. Social Security Administration
that the Participant is totally disabled.
(m) “$” shall refer to the
United States dollars.
(n) “Eligible Director” means
a director who satisfies the conditions set forth in Section 4(a) of the Plan.
(o) “Eligible Person” means
any (i) individual employed by the Company or an Affiliate; provided, however, that no employee covered by a collective
bargaining agreement shall be an Eligible Person; (ii) director or officer of the Company or an Affiliate; (iii) consultant or advisor
to the Company or an Affiliate who may be offered securities registrable on Form S-8 under the Securities Act; or (iv) prospective employee,
director, officer, consultant or advisor who has accepted an offer of employment or service from the Company or its Affiliates (and would
satisfy the provisions of clause (i), (ii) or (iii) above once such Person begins employment with or providing services to the Company
or an Affiliate).
(p) “Exchange Act” means
the U.S. Securities Exchange Act of 1934, as amended, and any successor thereto. References to any section of (or rule promulgated under)
the Exchange Act shall be deemed to include any rules, regulations or other interpretative guidance under such section or rule, and any
amendments or successors thereto.
(q) “Exercise Price” has
the meaning set forth in Section 7(b) of the Plan.
(r) “Fair Market Value” means,
(i) with respect to Common Stock on a given date, (x) if the Common Stock is listed on a national securities exchange, the closing sales
price of the common shares of Common Stock reported on such exchange on such date, or if there is no such sale on that date, then on the
last preceding date on which such a sale was reported; or (y) if the Common Stock is not listed on any national securities exchange,
the amount determined by the Committee in good faith to be the fair market value of the Common Stock, or (ii) with respect to any other
property on any given date, the amount determined by the Committee in good faith to be the fair market value of such other property as
of such date.
(s) “Incentive Stock Option”
means an Option that is designated by the Committee as an incentive stock option as described in Section 422 of the Code and otherwise
meets the requirements set forth in the Plan.
(t) “Immediate Family Members”
has the meaning set forth in Section 15(b)(ii) of the Plan.
(u) “Indemnifiable Person”
has the meaning set forth in Section 4(e) of the Plan.
(v) “Investor” means TowerBrook
Capital Partners, L.P.
(w) “NYSE” means The New
York Stock Exchange.
(x) “Nonqualified Stock Option”
means an Option that is not designated by the Committee as an Incentive Stock Option.
(y) “Option” means an Award
granted under Section 7 of the Plan.
(z) “Option Period” has the
meaning set forth in Section 7(c) of the Plan.
(aa) “Other Stock-Based Awards”
means an Award granted under Section 10 of the Plan.
(bb) “Participant” has the
meaning set forth in Section 6 of the Plan.
(cc) “Performance Compensation Award”
means an Award designated by the Committee as a Performance Compensation Award pursuant to Section 11 of the Plan.
(dd) “Performance Criterion”
or “Performance Criteria” shall mean the criterion or criteria that the Committee shall select for purposes of establishing
the Performance Goal(s) for a Performance Period with respect to any Performance Compensation Award under the Plan.
(ee) “Performance Formula”
shall mean, for a Performance Period, the one or more objective formulae applied against the relevant Performance Goal to determine, with
regard to the Performance Compensation Award of a particular Participant, whether all, some portion but less than all, or none of the
Performance Compensation Award has been earned for the Performance Period.
(ff) “Performance Goals”
shall mean, for a Performance Period, the one or more goals established by the Committee for the Performance Period based upon the Performance
Criteria.
(gg) “Performance Period”
shall mean the one or more periods of time as the Committee may select, over which the attainment of one or more Performance Goals will
be measured for the purpose of determining the Participant’s right to, and the payment with respect to, a Performance Compensation
Award.
(hh) “Permitted Transferee”
has the meaning set forth in Section 15(b)(ii) of the Plan.
(ii) “Person” has the meaning
given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof, except that such term shall not
include (i) the Company or any of its subsidiaries, (ii) a trustee or other fiduciary holding securities under an employee benefit plan
of the Company or any of its Affiliates, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities,
or (iv) a corporation owned, directly or indirectly, by the shareholders of the Company in substantially the same proportions as their
ownership of Common Stock of the Company.
(jj) “Released Unit” has
the meaning set forth in Section 9(d)(ii) of the Plan.
(kk) “Restricted Period”
has the meaning set forth in Section 9(a) of the Plan.
(ll) “Restricted Stock” means
an Award of Common Stock, subject to certain specified restrictions, granted under Section 9 of the Plan.
(mm) “Restricted Stock Unit”
means an Award of an unfunded and unsecured promise to deliver shares of Common Stock, cash, other securities or other property, subject
to certain specified restrictions, granted under Section 9 of the Plan.
(nn) “SAR Period” has the
meaning set forth in Section 8(c) of the Plan.
(oo) “Securities Act” means
the U.S. Securities Act of 1933, as amended, and any successor thereto. Reference in the Plan to any section of (or rule promulgated under)
the Securities Act shall be deemed to include any rules, regulations or other interpretative guidance under such section or rule, and
any amendments or successor provisions to such section, rules, regulations or other interpretive guidance.
(pp) “Strike Price” has the
meaning set forth in Section 8(b) of the Plan.
(qq) “Stock Appreciation Right”
or “SAR” means an Award granted under Section 8 of the Plan.
(rr) “Substitute Awards”
has the meaning set forth in Section 5(e) of the Plan.
4. Administration.
(a) The Committee shall administer the Plan,
and shall have the sole and plenary authority to: (i) designate Participants; (ii) determine the type, size, and terms and conditions
of Awards to be granted and to grant such Awards; (iii) determine the method by which an Award may be settled, exercised, canceled, forfeited,
suspended, or repurchased by the Company; (iv) determine the circumstances under which the delivery of cash, property or other amounts
payable with respect to an Award may be deferred, either automatically or at the Participant’s or Committee’s election; (v)
interpret and administer, reconcile any inconsistency in, correct any defect in and supply any omission in the Plan and any Award granted
under, the Plan; (vi) establish, amend, suspend, or waive any rules and regulations and appoint such agents as the Committee shall deem
appropriate for the proper administration of the Plan; (vii) accelerate the vesting, delivery or exercisability of, or payment for or
lapse of restrictions on, or waive any condition in respect of, Awards; and (viii) make any other determination and take any other action
that the Committee deems necessary or desirable for the administration of the Plan or to comply with any applicable law. To the extent
required to comply with the provisions of Rule 16b-3 promulgated under the Exchange Act (if applicable and if the Board is not acting
as the Committee under the Plan), or any exception or exemption under applicable securities laws or the applicable the rules of the NYSE
or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, as applicable, it is
intended that each member of the Committee shall, at the time such member takes any action with respect to an Award under the Plan, be
(i) a “non-employee director” within the meaning of Rule 16b-3 promulgated under the Exchange Act and/or (ii) an “independent
director” under the rules of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock
is listed or quoted, or a person meeting any similar requirement under any successor rule or regulation (“Eligible Director”).
However, the fact that a Committee member shall fail to qualify as an Eligible Director shall not invalidate any Award granted or action
taken by the Committee that is otherwise validly granted or taken under the Plan.
(b) The Committee may allocate all or any portion
of its responsibilities and powers to any person(s) selected by it, except for grants of Awards to persons who are non-employee members
of the Board or are otherwise subject to Section 16 of the Exchange Act. Any such allocation or delegation may be revoked by the Committee
at any time.
(c) As further set forth in Section 15(f) of
the Plan, the Committee shall have the authority to amend the Plan and Awards to the extent necessary to permit participation in the Plan
by Eligible Persons who are located outside of the United States on terms and conditions comparable to those afforded to Eligible Persons
located within the United States; provided, however, that no such action shall be taken without shareholder approval if
such approval is required by applicable securities laws or regulation.
(d) Unless otherwise expressly provided in the
Plan, all designations, determinations, interpretations, and other decisions regarding the Plan or any Award or any documents evidencing
Awards granted pursuant to the Plan shall be within the sole discretion of the Committee, may be made at any time and shall be final,
conclusive and binding upon all persons or entities, including, without limitation, the Company, any Affiliate, any Participant, any holder
or beneficiary of any Award, and any shareholder of the Company.
(e) No member of the Board or the Committee,
nor any employee or agent of the Company (each such person, an “Indemnifiable Person”), shall be liable for
any action taken or omitted to be taken or any determination made with respect to the Plan or any Award hereunder (unless constituting
fraud or a willful criminal act or willful criminal omission). Each Indemnifiable Person shall be indemnified and held harmless by the
Company against and from any loss, cost, liability, or expense (including attorneys’ fees) that may be imposed upon or incurred
by such Indemnifiable Person in connection with or resulting from any action, suit or proceeding to which such Indemnifiable Person may
be involved as a party, witness or otherwise by reason of any action taken or omitted to be taken or determination made under the Plan
or any Award Agreement and against and from any and all amounts paid by such Indemnifiable Person with the Company’s approval (not
to be unreasonably withheld), in settlement thereof, or paid by such Indemnifiable Person in satisfaction of any judgment in any such
action, suit or proceeding against such Indemnifiable Person, and the Company shall advance to such Indemnifiable Person any such expenses
promptly upon written request (which request shall include an undertaking by the Indemnifiable Person to repay the amount of such advance
if it shall ultimately be determined as provided below that the Indemnifiable Person is not entitled to be indemnified); provided,
that the Company shall have the right, at its own expense, to assume and defend any such action, suit or proceeding and once the Company
gives notice of its intent to assume the defense, the Company shall have sole control over such defense with counsel of recognized standing
of the Company’s choice. The foregoing right of indemnification shall not be available to an Indemnifiable Person to the extent
that a final judgment or other final adjudication (in either case not subject to further appeal) binding upon such Indemnifiable Person
determines that the acts or omissions or determinations of such Indemnifiable Person giving rise to the indemnification claim resulted
from such Indemnifiable Person’s fraud or willful criminal act or willful criminal omission or that such right of indemnification
is otherwise prohibited by law or by the Company’s certificate of incorporation or by-laws. The foregoing right of indemnification
shall not be exclusive of or otherwise supersede any other rights of indemnification to which such Indemnifiable Persons may be entitled
under the Company’s certificate of incorporation or by-laws, as a matter of law, individual indemnification agreement or contract
or otherwise, or any other power that the Company may have to indemnify such Indemnifiable Persons or hold them harmless.
(f) The Board may from time to time grant Awards
and administer the Plan with respect to such Awards. In any such case, the Board shall have all the authority granted to the Committee
under the Plan.
5. Grant of Awards; Shares Subject to the Plan;
Limitations.
(a) The Committee may grant Awards to one or
more Eligible Persons.
(b) Subject to Section 12 of the Plan and subsection
(e) below, the following limitations apply to the grant of Awards: (i) no more than 2,043,453 shares of Common Stock may be reserved for
issuance and delivered in the aggregate pursuant to Awards granted under the Plan; (ii) no more than 570,000 shares of Common Stock may
be subject to grants of Options or SARs under the Plan to any single Participant during any single fiscal year; (iii) no more than 570,000
shares of Common Stock may be delivered pursuant to the exercise of Incentive Stock Options granted under the Plan; and (iv) the maximum
amount (based on the Fair Market Value of shares of Common Stock on the date of grant as determined in accordance with applicable financial
accounting rules) of Awards that may be granted in any single fiscal year to any non-employee member of the Board shall be $750,000; provided,
that the foregoing limitation shall not apply in respect of any Restricted Stock Units or Deferred Stock Units issued to a non-employee
director in lieu of payment of cash director compensation or board or committee fees or in respect of any one-time initial equity grant
upon a nonemployee director’s appointment to the Board.
(c) Shares of Common Stock shall be deemed to
have been used in settlement of Awards whether or not they are actually delivered or the Fair Market Value on the date of issuance equivalent
of such shares is paid in cash; provided, however, that if shares of Common Stock issued upon exercise, vesting or settlement
of an Award, or shares of Common Stock owned by the Participant are surrendered or tendered to the Company in payment of the Exercise
Price or any taxes required to be withheld in respect of an Award, in each case, in accordance with the terms and conditions of the Plan
and any applicable Award Agreement, such surrendered or tendered shares shall again become available for other Awards; provided,
further, that in no event shall such shares increase the number of shares of Common Stock that may be delivered pursuant to Incentive
Stock Options. If and to the extent that all or any portion of an Award expires, terminates or is canceled or forfeited for any reason
without the Participant’s having received any benefit therefrom, the shares covered by such Award or portion thereof shall again
become available for other Awards. For purposes of the foregoing sentence, the Participant shall not be deemed to have received any “benefit”
(i) in the case of forfeited Restricted Stock by reason of having enjoyed voting rights and dividend rights prior to the date of forfeiture
or (ii) in the case of an Award canceled by reason of a new Award being granted in substitution therefor.
(d) Shares of Common Stock delivered by the
Company in settlement of Awards may be authorized and unissued shares, shares held in the treasury of the Company, shares purchased on
the open market or by private purchase, or a combination of the foregoing.
(e) The Committee may grant Awards in assumption
of, or in substitution for, outstanding awards previously granted by the Company or any Affiliate or an entity directly or indirectly
acquired by the Company or with which the Company combines (“Substitute Awards”), and such Substitute Awards
shall not be counted against the aggregate number of
shares of Common Stock available for Awards; provided,
that Substitute Awards issued or intended as “incentive stock options” within the meaning of Section 422 of the Code shall
be counted against the aggregate number of Incentive Stock Options available under the Plan.
6. Eligibility. Participation shall be
limited to Eligible Persons who have been selected by the Committee and who have entered into an Award Agreement with respect to an Award
granted to them under the Plan (each such Eligible Person, a “Participant”).
7. Options.
(a) Generally. Each Option shall be subject
to the conditions set forth in the Plan and in the applicable Award Agreement. All Options granted under the Plan shall be Nonqualified
Stock Options unless the Award Agreement expressly states otherwise. Incentive Stock Options shall be granted only subject to and in compliance
with Section 422 of the Code, and only to Eligible Persons who are employees of the Company and its Affiliates and who are eligible to
receive an Incentive Stock Option under the Code. If for any reason an Option intended to be an Incentive Stock Option (or any portion
thereof) shall not qualify as an Incentive Stock Option, then, to the extent of such nonqualification, such Option or portion thereof
shall be regarded as a Nonqualified Stock Option properly granted under the Plan.
(b) Exercise Price. The exercise price
(“Exercise Price”) per share of Common Stock for each Option shall not be less than 100% of the Fair Market
Value of such share, determined as of the date of grant. Any modification to the Exercise Price of an outstanding Option shall be subject
to the prohibition on repricing set forth in Section 14(b).
(c) Vesting, Exercise and Expiration.
The Committee shall determine the manner and timing of vesting, exercise and expiration of Options. The period between the date of grant
and the scheduled expiration date of the Option (“Option Period”) shall not exceed ten years, unless the Option
Period (other than in the case of an Incentive Stock Option) would expire at a time when trading in the shares of Common Stock is prohibited
by the Company’s insider trading policy or a Company-imposed “blackout period,” in which case the Option Period shall
be automatically extended until the 30th day following the expiration of such prohibition (so long as such extension shall not violate
Section 409A of the Code). The Committee may accelerate the vesting and/or exercisability of any Option, which acceleration shall not
affect any other terms and conditions of such Option.
(d) Method of Exercise and Form of Payment.
No shares of Common Stock shall be delivered pursuant to any exercise of an Option until the Participant has paid the Exercise Price to
the Company in full, and an amount equal to any U.S. federal, state and local income and employment taxes and non-U.S. income and employment
taxes, social contributions and any other tax-related items required to be withheld. Options may be exercised by delivery of written or
electronic notice of exercise to the Company or its designee (including a third-party administrator) in accordance with the terms of the
Option and the Award Agreement accompanied by payment of the Exercise Price and such applicable taxes. The Exercise Price and delivery
of all applicable required withholding taxes shall be payable (i) in cash or by check, cash equivalent and/or shares of Common Stock valued
at the Fair Market Value at the time the Option is exercised (including, pursuant to procedures approved by the Committee, by means of
attestation of ownership of a sufficient number of shares of Common
Stock in lieu of actual delivery of such shares to the Company) (or any combination of the foregoing); provided, that such shares
of Common Stock are not subject to any pledge or other security interest (or any combination of the foregoing); or (ii) by such other
method as elected by the Participant and that the Committee may permit, in its sole discretion, including without limitation: (A) in the
form of other property having a Fair Market Value on the date of exercise equal to the Exercise Price and all applicable required withholding
taxes; (B) if there is a public market for the shares of Common Stock at such time, by means of a broker-assisted “cashless exercise”
pursuant to which the Company or its designee (including third-party administrators) is delivered a copy of irrevocable instructions to
a stockbroker to sell the shares of Common Stock otherwise deliverable upon the exercise of the Option and to deliver promptly to the
Company an amount equal to the Exercise Price and all applicable required withholding taxes against delivery of the shares of Common Stock
to settle the applicable trade; or (C) by means of a “net exercise” procedure effected by withholding the minimum number of
shares of Common Stock otherwise deliverable in respect of an Option that are needed to pay for the Exercise Price and all applicable
required withholding taxes. Notwithstanding the foregoing, unless otherwise determined by the Committee or as set forth in an Award Agreement,
if on the last day of the Option Period, the Fair Market Value of the Common Stock exceeds the Exercise Price, the Participant has not
exercised the Option, and the Option has not previously expired, such Option shall be deemed exercised by the Participant on such last
day by means of a “net exercise” procedure described above. In all events of cashless or net exercise, any fractional shares
of Common Stock shall be settled in cash.
(e) Notification upon Disqualifying Disposition
of an Incentive Stock Option. Each Participant awarded an Incentive Stock Option under the Plan shall notify the Company in writing
immediately after the date on which the Participant makes a disqualifying disposition of any Common Stock acquired pursuant to the exercise
of such Incentive Stock Option. A disqualifying disposition is any disposition (including, without limitation, any sale) of such Common
Stock before the later of (i) two years after the date of grant of the Incentive Stock Option and (ii) one year after the date of exercise
of the Incentive Stock Option. The Company may, if determined by the Committee and in accordance with procedures established by the Committee,
retain possession, as agent for the applicable Participant, of any Common Stock acquired pursuant to the exercise of an Incentive Stock
Option until the end of the period described in the preceding sentence, subject to complying with any instruction from such Participant
as to the sale of such Common Stock.
(f) Compliance with Laws. Notwithstanding
the foregoing, in no event shall the Participant be permitted to exercise an Option in a manner that the Committee determines would violate
the Sarbanes-Oxley Act of 2002, or any other applicable law or the applicable rules and regulations of the Securities and Exchange Commission
or the applicable rules and regulations of any securities exchange or inter-dealer quotation service on which the Common Stock of the
Company is listed or quoted.
(g) Incentive Stock Option Grants to 10%
Shareholders. Notwithstanding anything to the contrary in this Section 7, if an Incentive Stock Option is granted to a Participant
who owns stock representing more than ten percent of the voting power of all classes of stock of the Company or of a subsidiary or a parent
of the Company, the Option Period shall not exceed five
years from the date of grant of such Option and the Option Price
shall be at least 110% of the Fair Market Value (on the date of grant) of the shares subject to the Option.
(h) $100,000 Per Year Limitation for Incentive
Stock Options. To the extent that the aggregate Fair Market Value (determined as of the date of grant) of shares of Common Stock for
which Incentive Stock Options are exercisable for the first time by any Participant during any calendar year (under all plans of the Company)
exceeds $100,000, such excess Incentive Stock Options shall be treated as Nonqualified Stock Options.
8. Stock Appreciation Rights (SARs).
(a) Generally. Each SAR shall be subject
to the conditions set forth in the Plan and the Award Agreement. Any Option granted under the Plan may include a tandem SAR. The Committee
also may award SARs independent of any Option.
(b) Strike Price. The strike price (“Strike
Price”) per share of Common Stock for each SAR shall not be less than 100% of the Fair Market Value of such share, determined
as of the date of grant; provided, however, that a SAR granted in tandem with (or in substitution for) an Option previously
granted shall have a Strike Price equal to the Exercise Price of the corresponding Option. Any modification to the Strike Price of an
outstanding SAR shall be subject to the prohibition on repricing set forth in Section 14(b).
(c) Vesting and Expiration. A SAR granted
in tandem with an Option shall become exercisable and shall expire according to the same vesting schedule and expiration provisions as
the corresponding Option. A SAR granted independently of an Option shall vest and become exercisable and shall expire in such manner and
on such date or dates determined by the Committee and shall expire after such period, not to exceed ten years, as may be determined by
the Committee (the “SAR Period”); provided, however, that notwithstanding any vesting or exercisability
dates set by the Committee, the Committee may accelerate the vesting and/or exercisability of any SAR, which acceleration shall not affect
the terms and conditions of such SAR other than with respect to vesting and/or exercisability. If the SAR Period would expire at a time
when trading in the shares of Common Stock is prohibited by the Company’s insider trading policy or a Company-imposed “blackout
period,” the SAR Period shall be automatically extended until the 30th day following the expiration of such prohibition (so long
as such extension shall not violate Section 409A of the Code).
(d) Method of Exercise. SARs may be exercised
by delivery of written or electronic notice of exercise to the Company or its designee (including a third-party administrator) in accordance
with the terms of the Award, specifying the number of SARs to be exercised and the date on which such SARs were awarded. Notwithstanding
the foregoing, if on the last day of the Option Period (or in the case of a SAR independent of an Option, the SAR Period), the Fair Market
Value exceeds the Strike Price, the Participant has not exercised the SAR or the corresponding Option (if applicable), and neither the
SAR nor the corresponding Option (if applicable) has previously expired, such SAR shall be deemed to have been exercised by the Participant
on such last day and the Company shall make the appropriate payment therefor.
(e) Payment. Upon the exercise of a SAR,
the Company shall pay to the holder thereof an amount equal to the number of shares subject to the SAR that are being exercised multiplied
by the excess, if any, of the Fair Market Value of one share of Common Stock on the exercise date over the Strike Price, less an amount
equal to any U.S. federal, state and local income and employment taxes and non-U.S. income and employment taxes, social contributions
and any other tax-related items required to be withheld. The Company shall pay such amount in cash, in shares of Common Stock valued at
Fair Market Value as determined on the date of exercise, or any combination thereof, as determined by the Committee. Any fractional shares
of Common Stock shall be settled in cash.
9. Restricted Stock; Restricted Stock Units;
and Deferred Stock Units.
(a) Generally. Each Restricted Stock,
Restricted Stock Unit, and Deferred Stock Unit Award shall be subject to the conditions set forth in the Plan and the applicable Award
Agreement. Subject to such rules, approvals, and conditions as the Committee may impose from time to time, an Eligible Person who is a
non-employee director may elect to receive all or a portion of such Eligible Person’s cash director fees and other cash director
compensation payable for director services provided to the Company by such Participant in any fiscal year, in whole or in part, in the
form of Deferred Stock Units. The Committee shall establish restrictions applicable to Restricted Stock and Restricted Stock Units, including
the period over which the restrictions shall apply (the “Restricted Period”), and the time or times at which
Restricted Stock or Restricted Stock Units shall become vested. Deferred Stock Units shall be fully vested upon grant. The Committee may
accelerate the vesting and/or the lapse of any or all of the restrictions on Restricted Stock and Restricted Stock Units, which acceleration
shall not affect any other terms and conditions of such Awards. No share of Common Stock shall be issued at the time an Award of Restricted
Stock Units or Deferred Stock Units is made, and the Company will not be required to set aside a fund for the payment of any such Award.
(b) Stock Certificates; Escrow or Similar
Arrangement. Upon the grant of Restricted Stock, the Committee shall cause share(s) of Common Stock to be registered in the name of
the Participant and held in book-entry form subject to the Company’s directions. The Committee may also cause a stock certificate
registered in the name of the Participant to be issued. In such event, the Committee may provide that such certificates shall be held
by the Company or in escrow rather than delivered to the Participant pending vesting and release of restrictions, in which case the Committee
may require the Participant to execute and deliver to the Company or its designee (including third-party administrators) (i) an escrow
agreement satisfactory to the Committee, if applicable, and (ii) the appropriate stock power (endorsed in blank) with respect to the Restricted
Stock. If the Participant shall fail to execute and deliver the escrow agreement and blank stock power within the amount of time specified
by the Committee, the Award shall be null and void. Subject to the restrictions set forth in this Section 9 and the Award Agreement, the
Participant shall have the rights and privileges of a shareholder as to such Restricted Stock, including without limitation the right
to vote such Restricted Stock.
(c) Restrictions; Forfeiture. Restricted
Stock and Restricted Stock Units awarded to the Participant shall be subject to forfeiture until the expiration of the Restricted Period
and the attainment of any other vesting criteria established by the Committee, and shall be subject to the restrictions on transferability
set forth in the Award Agreement. In the event of any forfeiture,
all rights of the Participant to such Restricted Stock (or as a
shareholder with respect thereto), and/or to such Restricted Stock Units, as applicable, including to any dividends and/or dividend equivalents
that may have been accumulated and withheld during the Restricted Period in respect thereof, shall terminate without further action or
obligation on the part of the Company. The Committee shall have the authority to remove any or all of the restrictions on the Restricted
Stock and Restricted Stock Units whenever it may determine that, by reason of changes in applicable laws or other changes in circumstances
arising after the date of grant of the Restricted Stock Award or Restricted Stock Unit Award, such action is appropriate.
(d) Delivery of Restricted Stock and Settlement
of Restricted Stock Units.
(i) Upon the expiration of the Restricted
Period with respect to any shares of Restricted Stock and the attainment of any other vesting criteria, the restrictions set forth in
the applicable Award Agreement shall be of no further force or effect, except as set forth in the Award Agreement. If an escrow arrangement
is used, upon such expiration the Company shall deliver to the Participant or such Participant’s beneficiary (via book entry notation
or, if applicable, in stock certificate form) the shares of Restricted Stock with respect to which the Restricted Period has expired (rounded
down to the nearest full share). Dividends, if any, that may have been withheld by the Committee and attributable to the Restricted Stock
shall be distributed to the Participant in cash or in shares of Common Stock having a Fair Market Value (on the date of distribution)
(or a combination of cash and shares of Common Stock) equal to the amount of such dividends, upon the release of restrictions on such
share.
(ii) Unless otherwise provided by the
Committee in an Award Agreement, upon the expiration of the Restricted Period and the attainment of any other vesting criteria established
by the Committee, with respect to any outstanding Restricted Stock Units, the Company shall deliver to the Participant, or such Participant’s
beneficiary (via book entry notation or, if applicable, in stock certificate form), one share of Common Stock (or other securities or
other property, as applicable) for each such outstanding Restricted Stock Unit that has not then been forfeited and with respect to which
the Restricted Period has expired and any other such vesting criteria are attained (“Released Unit”); provided,
however, that the Committee may elect to (A) pay cash or part cash and part Common Stock in lieu of delivering only shares of Common
Stock in respect of such Released Units or (B) defer the delivery of Common Stock (or cash or part Common Stock and part cash, as the
case may be) beyond the expiration of the Restricted Period if such extension would not cause adverse tax consequences under Section 409A
of the Code. If a cash payment is made in lieu of delivering shares of Common Stock, the amount of such payment shall be equal to the
Fair Market Value of the Common Stock as of the date on which the shares of Common Stock would have otherwise been delivered to the Participant
in respect of such Restricted Stock Units.
(iii) Unless otherwise provided by the
Committee in an Award Agreement, upon a Participant’s separation from service with the Company, the Company shall deliver to the
Participant, or the Participant’s beneficiary (via book entry notation or, if applicable, in share certificate form), one share
of Common Stock (or other securities or other property, as applicable) for each such outstanding Deferred Stock Unit then held by the
Participant; provided, however, unless otherwise
provided in the Award Agreement, that the Committee may elect to pay cash or part cash and part shares of Common Stock in lieu of delivering
only shares of Common Stock in respect of such Deferred Stock Units. If a cash payment is made in lieu of delivering shares of Common
Stock, the amount of such payment shall be equal to the Fair Market Value of the shares of Common Stock as of the date on which such shares
would have otherwise been delivered to the Participant in respect of such Deferred Stock Units.
(iv) To the extent provided in an Award
Agreement, the holder of outstanding Restricted Stock Units or Deferred Stock Units shall be entitled to be credited with dividend equivalent
payments (upon the payment by the Company of dividends on shares of Common Stock) either in cash or, if determined by the Committee, in
shares of Common Stock having a Fair Market Value equal to the amount of such dividends as of the date of payment (or a combination of
cash and shares of Common Stock) (and interest may, if determined by the Committee, be credited on the amount of cash dividend equivalents
at a rate and subject to such terms as determined by the Committee), which accumulated dividend equivalents (and interest thereon, if
applicable) shall be payable at the same time as the underlying Restricted Stock Units or Deferred Stock Units, as applicable, are settled
(in the case of Restricted Stock Units, following the release of restrictions on such Restricted Stock Units), and if such Restricted
Stock Units are forfeited, the holder thereof shall have no right to such dividend equivalent payments.
(e) Legends on Restricted Stock. Each
certificate representing Restricted Stock awarded under the Plan, if any, shall bear a legend substantially in the form of the following
in addition to any other information the Company deems appropriate until the lapse of all restrictions with respect to such Common Stock:
TRANSFER OF THIS CERTIFICATE AND THE SHARES
REPRESENTED HEREBY IS RESTRICTED PURSUANT TO THE
TERMS OF THE J.JILL, INC. AMENDED AND RESTATED 2017 OMNIBUS EQUITY INCENTIVE
PLAN, AND A RESTRICTED STOCK
AWARD AGREEMENT, DATED AS OF __________, BETWEEN
J.JILL, INC. AND _________. A COPY OF SUCH PLAN AND AWARD
AGREEMENT IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES
OF J.JILL, INC.
10. Other Stock-Based Awards. The Committee
may issue unrestricted Common Stock, rights to receive future grants of Awards, or other Awards denominated in Common Stock (including
performance shares or performance units), or Awards that provide for cash payments based in whole or in part on the value or future value
of shares of Common Stock under the Plan to Eligible Persons, alone or in tandem with other Awards, in such amounts as the Committee shall
from time to time determine (“Other Stock-Based Awards”). Each Other Stock-Based Award shall be evidenced by
an Award Agreement, which may include conditions including, without
limitation, the payment by the Participant of the Fair Market Value
of such shares of Common Stock on the date of grant.
11. Performance Compensation Awards.
(a) Generally. The Committee shall have
the authority, at or before the time of grant of any Award described in Sections 7 through 10 of the Plan, to designate such Award as
a Performance Compensation Award. In addition, the Committee shall have the authority to grant a cash bonus Award to any Participant and
designate such Award as a Performance Compensation Award.
(b) Discretion of Committee with Respect
to Performance Compensation Awards. The Committee may select the length of a Performance Period, the type(s) of Performance Compensation
Awards to be issued, the Performance Criteria used to establish the Performance Goal(s), the kind(s) and/or level(s) of the Performance
Goal(s) and the Performance Formula.
(c) Performance Criteria. The Performance
Criteria that will be used to establish the Performance Goal(s) may be based on the attainment of specific levels of performance of the
Company (and/or one or more Affiliates, divisions or operational and/or business units, product lines, brands, business segments, administrative
departments, units, or any combination of the foregoing), which may include (but will not be limited to) the following: (i) net earnings
or net income (before or after taxes); (ii) basic or diluted earnings per share (before or after taxes); (iii) net revenue or net revenue
growth; (iv) gross revenue or gross revenue growth, gross profit or gross profit growth; (v) net operating profit (before or after taxes);
(vi) return measures (including, but not limited to, return on investment, assets, net assets, capital, gross revenue or gross revenue
growth, invested capital, equity or sales); (vii) cash flow measures (including, but not limited to, operating cash flow, free cash flow
and cash flow return on capital), which may but are not required to be measured on a per-share basis; (viii) earnings before or after
taxes, interest, depreciation, and amortization (including EBIT and EBITDA); (ix) gross or net operating margins; (x) productivity ratios;
(xi) share price (including, but not limited to, growth measures and total shareholder return); (xii) expense targets or cost reduction
goals, general and administrative expense savings; (xiii) operating efficiency; (xiv) objective measures of customer satisfaction; (xv)
working capital targets; (xvi) measures of economic value added or other “value creation” metrics; (xvii) enterprise value;
(xviii) stockholder return; (xix) customer retention; (xx) competitive market metrics; (xxi) employee retention; (xxii) objective measures
of personal targets, goals or completion of projects (including but not limited to succession and hiring projects, completion of specific
acquisitions, reorganizations or other corporate transactions or capital-raising transactions, expansions of specific business operations
and meeting divisional or project budgets); (xxiii) system-wide revenues; (xxiv) cost of capital, debt leverage year-end cash position
or book value; (xxv) strategic objectives, development of new product lines and related revenue, sales and margin targets, or international
operations; (xxvi) total company comparable sales; or (xxvii) any combination of the foregoing. Any one or more of the Performance Criteria
may be stated as a percentage of other Performance Criteria, or a percentage of a prior period’s Performance Criteria, or used on
an absolute, relative or adjusted basis to measure the performance of the Company and/or one or more Affiliates as a whole or any divisions
or operational and/or business units, product lines, brands, business segments, administrative departments of the Company and/or one or
more Affiliates or any combination
thereof, as the Committee may deem appropriate, or any of the above
Performance Criteria may be compared to the performance of a group of comparator companies, or a published or special index that the Committee
deems appropriate, or as compared to various stock market indices. The Committee also has the authority to provide for accelerated vesting,
delivery and exercisability of any Award based on the achievement of Performance Goals pursuant to the Performance Criteria specified
in this paragraph.
(d) Modification of Performance Goal(s).
The Committee may alter Performance Criteria without obtaining shareholder approval if applicable tax and/or securities laws so permit.
The Committee may modify the calculation of a Performance Goal to reflect any of the following events: (i) asset write-downs; (ii) litigation
or claim judgments or settlements; (iii) the effect of changes in tax laws, accounting principles, or other laws or regulatory rules affecting
reported results; (iv) any reorganization and restructuring programs; (v) extraordinary nonrecurring items as described in Accounting
Standards Codification Topic 225-20 (or any successor pronouncement thereto) and/or in management’s discussion and analysis of financial
condition and results of operations appearing in the Company’s annual report to shareholders for the applicable year; (vi) acquisitions
or divestitures; (vii) any other specific unusual or nonrecurring events, or objectively determinable category thereof; (viii) foreign
exchange gains and losses; (ix) discontinued operations and nonrecurring charges; and (x) a change in the Company’s fiscal year.
(e) Payment of Performance Compensation Awards.
(i) Condition to Receipt of Payment.
Unless otherwise provided in the applicable Award Agreement or any employment, consulting, change-in-control, severance or other agreement
between the Participant and the Company or an Affiliate, the Participant must be employed by or rendering services for the Company or
an Affiliate on the last day of a Performance Period to be eligible for payment in respect of a Performance Compensation Award for such
Performance Period.
(ii) Limitation. Unless otherwise
provided in the applicable Award Agreement, or any employment, consulting, change-in-control, severance or other agreement between the
Participant and the Company or an Affiliate, the Participant shall be eligible to receive payment or delivery, as applicable, in respect
of a Performance Compensation Award only to the extent that the Committee determines that: (A) the Performance Goal(s) for such period
are achieved; and (B) all or some of the portion of such Participant’s Performance Compensation Award has been earned for the Performance
Period based on the application of the Performance Formula to such achieved Performance Goals; provided, however, that,
notwithstanding anything stated to the contrary in Section 13, the Committee may in its sole discretion provide that, in the event of
(x) the termination of the Participant’s employment or service by the Company other than for Cause (and other than due to death
or Disability) on or within 12 months following a Change in Control, or (y) the termination of a Participant’s employment or service
due to the Participant’s death or Disability, the Participant shall receive payment in respect of a Performance Compensation Award
based on (1) actual performance through the date of termination as determined by the Committee, or (2) if the Committee determines that
measurement of actual performance cannot be reasonably assessed, the
assumed achievement of target performance as determined by
the Committee, with payment or delivery, as applicable, to be made immediately following the date of such termination of employment.
(iii) Determination. The Committee
shall determine the amount of each Participant’s Performance Compensation Award actually payable for the Performance Period.
(f) Timing of Award Payments. Unless
otherwise provided in the applicable Award Agreement, Performance Compensation Awards granted for a Performance Period shall be paid to
Participants as soon as administratively practicable following completion of the certifications required by this Section 11. Any Performance
Compensation Award that has been deferred shall not (between the date as of which the Award is deferred and the payment date) increase
(i) with respect to a Performance Compensation Award that is payable in cash, by a measuring factor for each fiscal year greater than
a reasonable rate of interest set by the Committee or (ii) with respect to a Performance Compensation Award that is payable in shares
of Common Stock, by an amount greater than the appreciation of a share of Common Stock from the date such Award is deferred to the payment
date. Unless otherwise provided in an Award Agreement, any Performance Compensation Award that is deferred and is otherwise payable in
shares of Common Stock shall be credited (during the period between the date as of which the Award is deferred and the payment date) with
dividend equivalents (in a manner consistent with the methodology set forth in the last sentence of Section 9(d)(iv)).
12. Changes in Capital Structure and Similar
Events. In the event of (a) any dividend (other than regular cash dividends) or other distribution (whether in the form of cash, shares
of Common Stock, other securities or other property), recapitalization, stock split, reverse stock split, reorganization, merger, amalgamation,
consolidation, split-up, split-off, spin-off, combination, repurchase or exchange of shares of Common Stock or other securities of the
Company, issuance of warrants or other rights to acquire shares of Common Stock or other securities of the Company, or other similar corporate
transaction or event (including, without limitation, a Change in Control) that affects the shares of Common Stock, or (b) unusual or nonrecurring
events (including, without limitation, a Change in Control) affecting the Company, any Affiliate, or the financial statements of the Company
or any Affiliate, or changes in applicable rules, rulings, regulations or other requirements of any governmental body or securities exchange
or inter-dealer quotation service, accounting principles or law, such that in any case an adjustment is determined by the Committee to
be necessary or appropriate, then the Committee shall make any such adjustments in such manner as it may deem equitable, including without
limitation any or all of the following:
(i) adjusting any or all of (A) the number
of shares of Common Stock or other securities of the Company (or number and kind of other securities or other property) that may be delivered
in respect of Awards or with respect to which Awards may be granted under the Plan (including, without limitation, adjusting any or all
of the limitations under Section 5 of the Plan) and (B) the terms of any outstanding Award, including, without limitation, (1) the number
of shares of Common Stock or other securities of the Company (or number and kind of other securities or other property) subject to outstanding
Awards or to which outstanding Awards relate, (2) the Exercise Price or Strike Price with respect
to any Award and/or (3) any applicable performance measures
(including, without limitation, Performance Criteria, Performance Formulae and Performance Goals);
(ii) providing for a substitution or assumption
of Awards (or awards of an acquiring company), accelerating the delivery, vesting and/or exercisability of, lapse of restrictions and/or
other conditions on, or termination of, Awards or providing for a period of time (which shall not be required to be more than ten (10)
days) for Participants to exercise outstanding Awards prior to the occurrence of such event (and any such Award not so exercised shall
terminate or become no longer exercisable upon the occurrence of such event); and
(iii) cancelling any one or more outstanding
Awards (or awards of an acquiring company) and causing to be paid to the holders thereof, in cash, shares of Common Stock, other securities
or other property, or any combination thereof, the value of such Awards, if any, as determined by the Committee (which if applicable may
be based upon the price per share of Common Stock received or to be received by other shareholders of the Company in such event), including
without limitation, in the case of an outstanding Option or SAR, a cash payment in an amount equal to the excess, if any, of the Fair
Market Value (as of a date specified by the Committee) of the shares of Common Stock subject to such Option or SAR over the aggregate
Exercise Price or Strike Price of such Option or SAR, respectively (it being understood that, in such event, any Option or SAR having
a per share Exercise Price or Strike Price equal to, or in excess of, the Fair Market Value (as of the date specified by the Committee)
of a share of Common Stock subject thereto may be canceled and terminated without any payment or consideration therefor);
provided, however, that the Committee shall make an
equitable or proportionate adjustment to outstanding Awards to reflect any “equity restructuring” (within the meaning of the
Financial Accounting Standards Codification Topic 718 (or any successor pronouncement thereto)). Except as otherwise determined by the
Committee, any adjustment in Incentive Stock Options under this Section 12 (other than any cancellation of Incentive Stock Options) shall
be made only to the extent not constituting a “modification” within the meaning of Section 424(h)(3) of the Code, and any
adjustments under this Section 12 shall be made in a manner which does not adversely affect the exemption provided pursuant to Rule 16b3
promulgated under the Exchange Act. The Company shall give each Participant notice of an adjustment hereunder and, upon notice, such adjustment
shall be conclusive and binding for all purposes. In anticipation of the occurrence of any event listed in the first sentence of this
Section 12, for reasons of administrative convenience, the Committee in its sole discretion may refuse to permit the exercise of any Award
during a period of up to 30 days prior to the anticipated occurrence of any such event.
13. Effect of Change in Control. Except
to the extent otherwise provided in an Award Agreement, or any applicable employment, consulting, change-in-control, severance or other
agreement between the Participant and the Company or an Affiliate, in the event of a Change in Control, the Committee may provide for
the following:
(a) If the acquirer or Successor Company in
such Change in Control has agreed to provide for the substitution, assumption, exchange or other continuation of Awards granted
pursuant to the Plan, then, if the Participant’s employment
with the Company or an Affiliate is terminated by the Company or Affiliate without Cause (and other than due to death or Disability) on
or within 12 months following a Change in Control, the Committee may provide that all Options and SARs held by such Participant shall
become immediately exercisable with respect to 100% of the shares subject to such Options and SARs, and that the Restricted Period (and
any other conditions) shall expire immediately with respect to 100% of the shares of Restricted Stock and Restricted Stock Units and any
other Awards held by such Participant (including a waiver of any applicable Performance Goals); provided, that if the vesting or
exercisability of any Award would otherwise be subject to the achievement of performance conditions, the portion of such Award that shall
become fully vested and immediately exercisable shall be based on the assumed achievement of target performance as determined by the Committee.
(b) If that the acquirer or Successor Company
has not agreed to a provision for the substitution, assumption, exchange or other continuation of Awards granted pursuant to the Plan,
then, in either case, the Committee may provide that all Options and SARs held by such Participant shall become immediately exercisable
with respect to 100% of the shares subject to such Options and SARs, and that the Restricted Period (and any other conditions) shall expire
immediately with respect to 100% of the shares of Restricted Stock and Restricted Stock Units and any other Awards held by such Participant
(including a waiver of any applicable Performance Goals); provided, that if the vesting or exercisability of any Award would otherwise
be subject to the achievement of performance conditions, the portion of such Award that shall become fully vested and immediately exercisable
shall be based on the assumed achievement of target performance as determined by the Committee.
(c) In addition, the Committee may upon at least
ten (10) days’ advance notice to the affected persons, cancel any outstanding Award and pay to the holders thereof, in cash, securities
or other property (including of the acquiring or successor company), or any combination thereof, the value of such Awards based upon the
price per share of Common Stock received or to be received by other shareholders of the Company in the event. Notwithstanding the above,
the Committee shall exercise such discretion over the timing of settlement of any Award subject to Code Section 409A at the time such
Award is granted.
To the extent practicable, the provisions of
this Section 13 shall occur in a manner and at a time that allows affected Participants the ability to participate in the Change in Control
transaction with respect to the Common Stock subject to their Awards.
14. Amendments and Termination.
(a) Amendment and Termination of the Plan.
The Board may amend, alter, suspend, discontinue, or terminate the Plan or any portion thereof at any time; provided, that no such
amendment, alteration, suspension, discontinuation or termination shall be made without shareholder approval if such approval is necessary
to comply with any tax or regulatory requirement applicable to the Plan (including, without limitation, as necessary to comply with any
applicable rules or requirements of any securities exchange or inter-dealer quotation service on which the shares of Common Stock may
be listed or quoted, for changes in GAAP to new accounting standards); provided, further, that any such amendment, alteration,
suspension, discontinuance or termination that would materially and adversely affect the rights of any
Participant or any holder or beneficiary of any Award theretofore
granted shall not to that extent be effective without the consent of the affected Participant, holder or beneficiary, unless the Committee
determines that such amendment, alteration, suspension, discontinuance or termination is either required or advisable in order for the
Company, the Plan or the Award to satisfy any applicable law or regulation. Notwithstanding the foregoing, no amendment shall be made
to the last proviso of Section 14(b) without shareholder approval.
(b) Amendment of Award Agreements. The
Committee may, to the extent not inconsistent with the terms of any applicable Award Agreement, waive any conditions or rights under,
amend any terms of, or alter, suspend, discontinue, cancel or terminate, any Award theretofore granted or the associated Award Agreement,
prospectively or retroactively (including after the Participant’s termination of employment or service with the Company); provided,
that any such waiver, amendment, alteration, suspension, discontinuance, cancellation or termination that would materially and adversely
affect the rights of any Participant with respect to any Award theretofore granted shall not to that extent be effective without the consent
of the affected Participant unless the Committee determines that such waiver, amendment, alteration, suspension, discontinuance, cancellation
or termination is either required or advisable in order for the Company, the Plan or the Award to satisfy any applicable law or regulation;
provided, further, that except as otherwise permitted under Section 12 of the Plan, if (i) the Committee reduces the Exercise
Price of any Option or the Strike Price of any SAR, (ii) the Committee cancels any outstanding Option or SAR and replaces it with a new
Option or SAR (with a lower Exercise Price or Strike Price, as the case may be) or other Award or cash in a manner that would either (A)
be reportable on the Company’s proxy statement or Form 10-K (if applicable) as Options that have been “repriced” (as
such term is used in Item 402 of Regulation S-K promulgated under the Exchange Act), or (B) result in any “repricing” for
financial statement reporting purposes (or otherwise cause the Award to fail to qualify for equity accounting treatment), (iii) the Committee
takes any other action that is considered a “repricing” for purposes of the shareholder approval rules of the applicable securities
exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, or (iv) the Committee cancels any outstanding
Option or SAR that has a per-share Exercise Price or Strike Price (as applicable) at or above the Fair Market Value of a share of Common
Stock on the date of cancellation, and pays any consideration to the holder thereof, whether in cash, securities, or other property, or
any combination thereof, then, in the case of the immediately preceding clauses (i) through (iv), any such action shall not be effective
without shareholder approval.
15. General.
(a) Award Agreements; Other Agreements.
Each Award under the Plan shall be evidenced by an Award Agreement, which shall be delivered to the Participant and shall specify the
terms and conditions of the Award and any rules applicable thereto. In the event of any conflict between the terms of the Plan and any
Award Agreement or employment, change-in-control, severance or other agreement in effect with the Participant, the term of the Plan shall
control.
(b) Nontransferability.
(i) Each Award shall be exercisable only
by the Participant during the Participant’s lifetime, or, if permissible under applicable law, by the Participant’s legal
guardian or representative. No Award may be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the
Participant other than by will or by the laws of descent and distribution and any such purported assignment, alienation, pledge, attachment,
sale, transfer or encumbrance shall be void and unenforceable against the Company or an Affiliate; provided, that the designation
of a beneficiary shall not constitute an assignment, alienation, pledge, attachment, sale, transfer or encumbrance.
(ii) Notwithstanding the foregoing, the
Committee may permit Awards (other than Incentive Stock Options) to be transferred by the Participant, without consideration, subject
to such rules as the Committee may adopt, to: (A) any person who is a “family member” of the Participant, as such term is
used in the instructions to Form S-8 under the Securities Act or any successor form of registration statements promulgated by the Securities
and Exchange Commission (collectively, the “Immediate Family Members”); (B) a trust solely for the benefit of
the Participant or the Participant’s Immediate Family Members; (C) a partnership or limited liability company whose only partners
or shareholders are the Participant and the Participant’s Immediate Family Members; or (D) any other transferee as may be approved
either (1) by the Board or the Committee, or (2) as provided in the applicable Award Agreement; (each transferee described in clause (A),
(B), (C) or (D) above is hereinafter referred to as a “Permitted Transferee”); provided, that the Participant
gives the Committee advance written notice describing the terms and conditions of the proposed transfer and the Committee notifies the
Participant in writing that such a transfer would comply with the requirements of the Plan.
(iii) The terms of any Award transferred
in accordance with the immediately preceding paragraph shall apply to the Permitted Transferee, and any reference in the Plan, or in any
applicable Award Agreement, to the Participant shall be deemed to refer to the Permitted Transferee, except that (A) Permitted Transferees
shall not be entitled to transfer any Award, other than by will or the laws of descent and distribution; (B) Permitted Transferees shall
not be entitled to exercise any transferred Option unless there shall be in effect a registration statement on an appropriate form covering
the shares of Common Stock to be acquired pursuant to the exercise of such Option if the Committee determines, consistent with any applicable
Award Agreement, that such a registration statement is necessary or appropriate; (C) the Committee or the Company shall not be required
to provide any notice to a Permitted Transferee, whether or not such notice is or would otherwise have been required to be given to the
Participant under the Plan or otherwise; and (D) the consequences of the termination of the Participant’s employment by, or services
to, the Company or an Affiliate under the terms of the Plan and the applicable Award Agreement shall continue to be applied with respect
to the transferred Award, including, without limitation, that an Option shall be exercisable by the Permitted Transferee only to the extent,
and for the periods, specified in the Plan and the applicable Award Agreement.
(c) Dividends and Dividend Equivalents.
The Committee may provide the Participant as part of an Award with dividends or dividend equivalents, payable in cash, shares of Common
Stock, other securities, other Awards or other property, on a current or deferred basis, on such
terms and conditions as may be determined by the Committee, including,
without limitation, payment directly to the Participant, withholding of such amounts by the Company subject to vesting of the Award or
reinvestment in additional shares of Common Stock, Restricted Stock or other Awards; provided, that no dividends or dividend equivalents
shall be payable in respect of outstanding (i) Options or SARs or (ii) unearned Performance Compensation Awards or other unearned Awards
subject to performance conditions (other than or in addition to the passage of time); provided, further, that dividend equivalents
may be accumulated in respect of unearned Awards and paid as soon as administratively practicable, but no more than 60 days, after such
Awards are earned and become payable or distributable (and the right to any such accumulated dividends or dividend equivalents shall be
forfeited upon the forfeiture of the Award to which such dividends or dividend equivalents relate).
(d) Tax Withholding.
(i) The Participant shall be required
to pay to the Company or any Affiliate, and the Company or any Affiliate shall have the right (but not the obligation) and is hereby authorized
to withhold, from any cash, shares of Common Stock, other securities or other property deliverable under any Award or from any compensation
or other amounts owing to the Participant, the amount (in cash, Common Stock, other securities or other property) of any required withholding
taxes (up to the maximum permissible withholding amounts) in respect of an Award, its exercise, or any payment or transfer under an Award
or under the Plan and to take such other action as the Committee or the Company deem necessary to satisfy all obligations for the payment
of such withholding taxes.
(ii) Without limiting the generality of
paragraph (i) above, the Committee may permit the Participant to satisfy, in whole or in part, the foregoing withholding liability by
(A) payment in cash, (B) the delivery of shares of Common Stock (which shares are not subject to any pledge or other security interest)
owned by the Participant having a Fair Market Value on such date equal to such withholding liability or (C) having the Company withhold
from the number of shares of Common Stock otherwise issuable or deliverable pursuant to the exercise or settlement of the Award a number
of shares with a Fair Market Value on such date equal to such withholding liability.
(e) No Claim to Awards; No Rights to Continued
Employment, Directorship or Engagement. No employee or director of the Company or an Affiliate, or other person, shall have any claim
or right to be granted an Award under the Plan or, having been selected for the grant of an Award, to be selected for a grant of any other
Award. There is no obligation for uniformity of treatment of Participants or holders or beneficiaries of Awards. The terms and conditions
of Awards and the Committee’s determinations and interpretations with respect thereto need not be the same with respect to each
Participant and may be made selectively among Participants, whether or not such Participants are similarly situated. Neither the Plan
nor any action taken hereunder shall be construed as giving any Participant any right to be retained in the employ or service of the Company
or an Affiliate, or to continue in the employ or the service of the Company or an Affiliate, nor shall it be construed as giving any Participant
who is a director any rights to continued service on the Board.
(f) International Participants. With
respect to Participants who reside or work outside of the United States, the Committee may amend the terms of the Plan or appendices thereto,
or outstanding Awards, with respect to such Participants, in order to conform such terms with or accommodate the requirements of local
laws, procedures or practices or to obtain more favorable tax or other treatment for the Participant, the Company or its Affiliates. Without
limiting the generality of this subsection, the Committee is specifically authorized to adopt rules, procedures and sub-plans with provisions
that limit or modify rights on death, disability, retirement or other terminations of employment, available methods of exercise or settlement
of an Award, payment of income, social insurance contributions or payroll taxes, withholding procedures and handling of any stock certificates
or other indicia of ownership that vary with local requirements. The Committee may also adopt rules, procedures or sub-plans applicable
to particular Affiliates or locations.
(g) Beneficiary Designation. The Participant’s
beneficiary shall be the Participant’s spouse (or domestic partner if such status is recognized by the Company and in such jurisdiction),
or if the Participant is otherwise unmarried at the time of death, the Participant’s estate, except to the extent that a different
beneficiary is designated in accordance with procedures that may be established by the Committee from time to time for such purpose. Notwithstanding
the foregoing, in the absence of a beneficiary validly designated under such Committee-established procedures and/or applicable law who
is living (or in existence) at the time of death of a Participant residing or working outside the United States, any required distribution
under the Plan shall be made to the executor or administrator of the estate of the Participant, or to such other individual as may be
prescribed by applicable law.
(h) Termination of Employment or Service.
The Committee, in its sole discretion, shall determine the effect of all matters and questions related to the termination of employment
of or service of a Participant. Except as otherwise provided in an Award Agreement, or any employment, consulting, change-in-control,
severance or other agreement between the Participant and the Company or an Affiliate, unless determined otherwise by the Committee: (i)
neither a temporary absence from employment or service due to illness, vacation or leave of absence (including, without limitation, a
call to active duty for military service through a Reserve or National Guard unit) nor a transfer from employment or service with the
Company to employment or service with an Affiliate (or vice versa) shall be considered a termination of employment or service with the
Company or an Affiliate; and (ii) if the Participant’s employment with the Company or its Affiliates terminates, but such Participant
continues to provide services with the Company or its Affiliates in a non-employee capacity (including as a non-employee director) (or
vice versa), such change in status shall not be considered a termination of employment or service with the Company or an Affiliate for
purposes of the Plan.
(i) No Rights as a Shareholder. Except
as otherwise specifically provided in the Plan or any Award Agreement, no person shall be entitled to the privileges of ownership in respect
of shares of Common Stock that are subject to Awards hereunder until such shares have been issued or delivered to that person.
(j) Government and Other Regulations.
(i) The Plan, the granting and vesting
of Awards under the Plan and the issuance and delivery of share of Common Stock and the payment of money under the Plan or under Awards
granted or awarded under the Plan are subject to compliance with all applicable U.S. federal, state, local, and non-U.S. laws, rules,
and regulations (including but not limited to state, U.S. federal, and non-U.S. securities law, and margin requirements) and to such approvals
by any listing, regulatory, or governmental authority as may, in the opinion of counsel for the Company, be necessary or advisable in
connection therewith. Any securities delivered under the Plan shall be subject to such restrictions, and the person acquiring such securities
shall, if requested by the Company, provide such assurances and representations to the Company as the Company may deem necessary or desirable
to assure compliance with all applicable legal requirements. To the extent permitted by applicable law, the Plan and Awards granted or
awarded hereunder shall be deemed amended to the extent necessary to conform to such laws, rules, and regulations.
(ii) Nothing in the Plan shall be deemed
to authorize the Committee or Board or any members thereof to take any action contrary to applicable law or regulation, or rules of the
NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted.
(iii) The obligation of the Company to
settle Awards in Common Stock or other consideration shall be subject to all applicable laws, rules, and regulations, and to such approvals
by governmental agencies as may be required. Notwithstanding any terms or conditions of any Award to the contrary, the Company shall be
under no obligation to offer to sell or to sell, and shall be prohibited from offering to sell or selling, any shares of Common Stock
pursuant to an Award unless such shares have been properly registered for sale pursuant to the Securities Act with the Securities and
Exchange Commission or unless the Company has received an opinion of counsel, satisfactory to the Company, that such shares may be offered
or sold without such registration pursuant to and in compliance with the terms of an available exemption. The Company shall be under no
obligation to register for sale under the Securities Act any of the shares of Common Stock to be offered or sold under the Plan. The Committee
shall have the authority to provide that all shares of Common Stock or other securities of the Company or any Affiliate delivered under
the Plan shall be subject to such stop-transfer orders and other restrictions as the Committee may deem advisable under the Plan, the
applicable Award Agreement, U.S. federal securities laws, or the rules, regulations and other requirements of the U.S. Securities and
Exchange Commission, any securities exchange or inter-dealer quotation service upon which such shares or other securities of the Company
are then listed or quoted and any other applicable federal, state, local or non-U.S. laws, rules, regulations and other requirements,
and, without limiting the generality of Section 9 of the Plan, the Committee may cause a legend or legends to be put on any such certificates
of Common Stock or other securities of the Company or any Affiliate delivered under the Plan to make appropriate reference to such restrictions
or may cause such Common Stock or other securities of the Company or any Affiliate delivered under the Plan in book-entry form to be held
subject to the Company’s instructions or subject to appropriate stop-transfer orders. Notwithstanding any provision in the Plan
to the contrary, the Committee reserves the right to add any additional terms or provisions to any Award granted under
the Plan that it in its sole discretion deems necessary or
advisable in order that such Award complies with the legal requirements of any governmental entity to whose jurisdiction the Award is
subject.
(iv) The Committee may cancel an Award
or any portion thereof if it determines that legal or contractual restrictions and/or blockage and/or other market considerations would
make the Company’s acquisition of shares of Common Stock from the public markets, the Company’s issuance of Common Stock to
the Participant, the Participant’s acquisition of Common Stock from the Company and/or the Participant’s sale of Common Stock
to the public markets illegal, impracticable or inadvisable. If the Committee determines to cancel all or any portion of an Award in accordance
with the foregoing, unless prevented by applicable laws, the Company shall pay to the Participant an amount equal to the excess of (A)
the aggregate Fair Market Value of the shares of Common Stock subject to such Award or portion thereof canceled (determined as of the
applicable exercise date, or the date that the shares would have been vested or delivered, as applicable), over (B) the aggregate Exercise
Price or Strike Price (in the case of an Option or SAR, respectively) or any amount payable as a condition of delivery of shares of Common
Stock (in the case of any other Award). Such amount shall be delivered to the Participant as soon as practicable following the cancellation
of such Award or portion thereof.
(k) Payments to Persons Other Than Participants.
If the Committee shall find that any person to whom any amount is payable under the Plan is unable to care for the Participant because
of illness or accident, or is a minor, or has died, then any payment due to such person or the Participant’s estate (unless a prior
claim therefor has been made by a duly appointed legal representative or a beneficiary designation form has been filed with the Company)
may, if the Committee so directs the Company, be paid to such person’s spouse, child, or relative, or an institution maintaining
or having custody of such person, or any other person deemed by the Committee to be a proper recipient on behalf of such person otherwise
entitled to payment. Any such payment shall be a complete discharge of the liability of the Committee and the Company therefor.
(l) Nonexclusivity of the Plan. Neither
the adoption of the Plan by the Board nor the submission of the Plan to the shareholders of the Company for approval shall be construed
as creating any limitations on the power of the Board to adopt such other incentive arrangements as it may deem desirable, including,
without limitation, the granting of stock options or awards otherwise than under the Plan, and such arrangements may be either applicable
generally or only in specific cases.
(m) No Trust or Fund Created. Neither
the Plan nor any Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between
the Company or any Affiliate, on the one hand, and the Participant or other person or entity, on the other hand. No provision of the Plan
or any Award shall require the Company, for the purpose of satisfying any obligations under the Plan, to purchase assets or place any
assets in a trust or other entity to which contributions are made or to otherwise segregate any assets, nor shall the Company maintain
separate bank accounts, books, records or other evidence of the existence of a
segregated or separately maintained or administered fund for such
purposes. Participants shall have no rights under the Plan other than as unsecured general creditors of the Company.
(n) Reliance on Reports. Each member
of the Committee and each member of the Board (and each such member’s respective designees) shall be fully justified in acting or
failing to act, as the case may be, and shall not be liable for having so acted or failed to act in good faith, in reliance upon any report
made by the independent registered public accounting firm of the Company and its Affiliates and/or any other information furnished in
connection with the Plan by any agent of the Company or the Committee or the Board, other than such member or designee.
(o) Relationship to Other Benefits. No
payment under the Plan shall be taken into account in determining any benefits under any pension, retirement, profit sharing, group insurance
or other benefit plan of the Company except as otherwise specifically provided in such other plan.
(p) Purchase for Investment. Whether
or not the Options and shares covered by the Plan have been registered under the Securities Act, each person exercising an Option under
the Plan or acquiring shares under the Plan may be required by the Company to give a representation in writing that such person is acquiring
such shares for investment and not with a view to, or for sale in connection with, the distribution of any part thereof. The Company will
endorse any necessary legend referring to the foregoing restriction upon the certificate or certificates representing any shares issued
or transferred to the Participant upon the exercise of any Option granted under the Plan.
(q) Governing Law. The Plan shall be
governed by and construed in accordance with the laws of the State of Delaware, without regard to principles of conflicts of laws thereof,
or principles of conflicts of laws of any other jurisdiction that could cause the application of the laws of any jurisdiction other than
the State of Delaware.
(r) Severability. If any provision of
the Plan or any Award or Award Agreement is or becomes or is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as
to any person or entity or Award, or would disqualify the Plan or any Award under any law deemed applicable by the Committee, such provision
shall be construed or deemed amended to conform to the applicable laws, or if it cannot be construed or deemed amended without, in the
determination of the Committee, materially altering the intent of the Plan or the Award, such provision shall be construed or deemed stricken
as to such jurisdiction, person or entity or Award, and the remainder of the Plan and any such Award shall remain in full force and effect.
(s) Obligations Binding on Successors.
The obligations of the Company under the Plan shall be binding upon any successor corporation or organization resulting from the merger,
consolidation or other reorganization of the Company, or upon any successor corporation or organization succeeding to all or substantially
all of the assets and business of the Company.
(t) 409A of the Code.
(i) It is intended that the Plan comply
with Section 409A of the Code, and all provisions of the Plan shall be construed and interpreted in a manner consistent with the
requirements for avoiding taxes or penalties under Section
409A of the Code. Each Participant is solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed
on or in respect of such Participant in connection with the Plan or any other plan maintained by the Company, including any taxes and
penalties under Section 409A of the Code, and neither the Company nor any Affiliate shall have any obligation to indemnify or otherwise
hold such Participant or any beneficiary harmless from any or all of such taxes or penalties. With respect to any Award that is considered
“deferred compensation” subject to Section 409A of the Code, references in the Plan to “termination of employment”
(and substantially similar phrases) shall mean “separation from service” within the meaning of Section 409A of the Code. For
purposes of Section 409A of the Code, each of the payments that may be made in respect of any Award granted under the Plan is designated
as a separate payment.
(ii) Notwithstanding anything in the Plan
to the contrary, if the Participant is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code,
no payments or deliveries in respect of any Awards that are “deferred compensation” subject to Section 409A of the Code shall
be made to such Participant prior to the date that is six months after the date of such Participant’s “separation from service”
within the meaning of Section 409A of the Code or, if earlier, the Participant’s date of death. All such delayed payments or deliveries
will be paid or delivered (without interest) in a single lump sum on the earliest date permitted under Section 409A of the Code that is
also a business day.
(iii) In the event that the timing of
payments in respect of any Award that would otherwise be considered “deferred compensation” subject to Section 409A of the
Code would be accelerated upon the occurrence of (A) a Change in Control, no such acceleration shall be permitted unless the event giving
rise to the Change in Control satisfies the definition of a change in the ownership or effective control of a corporation, or a change
in the ownership of a substantial portion of the assets of a corporation pursuant to Section 409A of the Code and any Treasury Regulations
promulgated thereunder or (B) a Disability, no such acceleration shall be permitted unless the Disability also satisfies the definition
of “disability” pursuant to Section 409A of the Code and any Treasury Regulations promulgated thereunder.
(u) Clawback/Forfeiture. Notwithstanding
anything to the contrary contained herein, the Committee may cancel an Award if the Participant, without the consent of the Company, (A)
has engaged in or engages in activity that is in conflict with or adverse to the interests of the Company or any Affiliate while employed
by or providing services to the Company or any Affiliate, including fraud or conduct contributing to any financial restatements or irregularities,
(B) violates a non-competition, non-solicitation, non-disparagement or non-disclosure covenant or agreement with the Company or any Affiliate,
as determined by the Committee, or (C) if the Participant’s employment or service is terminated for Cause. The Committee may also
provide in an Award Agreement that in such event the Participant will forfeit any compensation, gain or other value realized thereafter
on the vesting, exercise or settlement of such Award, the sale or other transfer of such Award, or the sale of shares of Common Stock
acquired in respect of such Award, and must promptly repay such amounts to the Company. The Committee may also provide in an Award Agreement
that if the Participant receives any amount in excess of what the
Participant should have received under the terms of the Award for
any reason (including without limitation by reason of a financial restatement, mistake in calculations or other administrative error),
all as determined by the Committee, then the Participant shall be required to promptly repay any such excess amount to the Company. In
addition, the Company shall retain the right to bring an action at equity or law to enjoin the Participant’s activity and recover
damages resulting from such activity. Further, to the extent required by applicable law (including, without limitation, Section 304 of
the Sarbanes-Oxley Act and Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act) and/or the rules and regulations
of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, or if so
required pursuant to a written policy adopted by the Company, Awards shall be subject (including on a retroactive basis) to clawback,
forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into all outstanding Award Agreements).
(v) No Representations or Covenants With
Respect to Tax Qualification. Although the Company may endeavor to (i) qualify an Award for favorable U.S. or non-U.S. tax treatment
or (ii) avoid adverse tax treatment, the Company makes no representation to that effect and expressly disavows any covenant to maintain
favorable or avoid unfavorable tax treatment. The Company shall be unconstrained in its corporate activities without regard to the potential
negative tax impact on holders of Awards under the Plan.
(w) No Interference. The existence of
the Plan, any Award Agreement, and the Awards granted hereunder shall not affect or restrict in any way the right or power of the Company,
the Board, the Committee, or the shareholders of the Company to make or authorize any adjustment, recapitalization, reorganization, or
other change in the Company’s capital structure or its business, any merger or consolidation of the Company, any issue of stock
or of options, warrants, or rights to purchase stock or of bonds, debentures, or preferred or prior preference stocks whose rights are
superior to or affect the Common Shares or the rights thereof or that are convertible into or exchangeable for Common Shares, or the dissolution
or liquidation of the Company or any Affiliate, or any sale or transfer of all or any part of their assets or business, or any other corporate
act or proceeding, whether of a similar character or otherwise.
(x) Expenses; Titles and Headings. The
expenses of administering the Plan shall be borne by the Company and its Affiliates. The titles and headings of the sections in the Plan
are for convenience of reference only, and in the event of any conflict, the text of the Plan, rather than such titles or headings shall
control.
(y) Whistleblower Acknowledgments. Notwithstanding
anything to the contrary herein, nothing in this Plan or any Award Agreement will (i) prohibit a Participant from making reports of possible
violations of federal law or regulation to any governmental agency or entity in accordance with the provisions of and rules promulgated
under Section 21F of the Exchange Act or Section 806 of the Sarbanes-Oxley Act of 2002, or of any other whistleblower protection provisions
of federal law or regulation, or (ii) require prior approval by the Company or any of its Affiliates of any reporting described in clause
(i).
(z) Defend Trade Secrets Act Acknowledgment.
Notwithstanding anything to the contrary contained nothing in this Plan or any Award Agreement, pursuant to the Defend Trade
Secrets Act of 2016, no Participant shall be held criminally or
civilly liable under any federal or state trade secret law for the disclosure of a trade secret that: (A) is made (i) in confidence to
a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting
or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding,
if such filing is made under seal. If a Participant files a lawsuit for retaliation by the Company for reporting a suspected violation
of law, such Participant may disclose the trade secret to his or her attorney and use the trade secret information in the court proceeding,
if such Participant (x) files any document containing the trade secret under seal, and (y) does not disclose the trade secret, except
pursuant to court order.
* * *
As adopted by the Board of Directors of the
Company on March 29, 2023.
As approved by the shareholders of the Company
on June 1, 2023.
EXHIBIT 107
Calculation of Filing Fee Table
Form S-8
(Form Type)
J.Jill, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered
Securities
| Security Type |
Security Class Title |
Fee
Calculation
Rule |
Amount
Registered(1) |
Proposed
Maximum
Offering
Price Per Unit(2) |
Maximum
Aggregate
Offering Price |
Fee Rate |
Amount of
Registration Fee |
| Equity |
Common stock, par value $0.01 per share, issuable pursuant to the J.Jill,
Inc. Amended & Restated 2017 Omnibus Equity Incentive Plan |
Other |
750,000 |
$21.14 |
$15,855,000 |
0.00011020 |
$1,747.22 |
| |
Total Offering Amounts |
|
|
$15,855,000 |
|
$1,747.22 |
| |
Total Fees Previously Paid |
|
|
|
|
- |
| |
Total Fee Offsets |
|
|
|
|
- |
| |
Net Fee Due |
|
|
|
|
$1,747.22 |
| (1) | Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”),
this registration statement shall be deemed to cover any additional securities to be offered or issued from stock splits, stock dividends
or similar transactions. |
| (2) | Estimated in accordance with Rule 457(c) and 457(h) solely for the purpose of calculating the registration
fee on the basis of the average of the high and low prices of J.Jill, Inc.’s common stock reported by the New York Stock Exchange
as of June 23, 2023. |
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