EXHIBIT 10.13
SUNGLASS HUT INTERNATIONAL, INC.
RESTRICTED STOCK AGREEMENT
This RESTRICTED STOCK AGREEMENT made as of the 1st day of April, 1997, by and
between SUNGLASS HUT INTERNATIONAL, INC., a Florida corporation (the "Company"),
and Xxxxxx X. Xxxxx (the "Executive").
BACKGROUND
The Compensation Committee of the Company has determined that it is in
the best interests of the Company and its shareholders to recognize the
Executive's performance and to provide incentive to the Executive to remain an
executive with the Company and enhance the Company's profitability by making a
grant to him of Restricted Stock subject to and in accordance with the Sunglass
Hut International, Inc. 1996 Executive Incentive Compensation Plan (the "Plan")
and the terms of this Agreement. The Plan is incorporated herein by reference
and made a part of this Agreement, and any term used in this Agreement and not
defined herein shall have the meaning set forth in the Plan.
NOW, THEREFORE, in consideration of the covenants and of the mutual
promises contained herein, the parties hereto , intending to be legally bound
hereby, agrees as follows.
1. DEFINITIONS. As used in this Agreement, the following terms shall
have the meaning set forth below:
(a) "Agreement" shall mean this Restricted Stock Agreement
and any amendments thereto.
(b) "Award" shall mean the award of Restricted Stock under
this Agreement.
(c) "Cause" shall mean (i) the willful failure or refusal of
the Executive to perform the duties or render the services reasonably assigned
to him from time to time by the Company's Chief Executive Officer or Board of
Directors (except during reasonable vacation periods or sick leave), (ii) the
Executive's unsatisfactory performance of his duties as an employee of the
Company which continues after notice and a reasonable opportunity to cure, (iii)
the charging or indictment of the Executive in connection with a felony, (iv)
the association, directly or indirectly, of the Executive, for his profit or
financial benefit, with any person, firm, partnership, association, entity or
corporation that competes in any material way with the Company, (v) the
disclosing or using of any material trade secret or confidential information of
the Company at any time by the Executive, except as required in connection with
his duties to the Company, or (vi) the breach by the Executive of his fiduciary
duty or duty of trust to the Company.
(d) "Change in Control" shall mean a Change in Control as
defined in Section 9(b) of the Plan.
(e) "Committee" shall mean the Compensation Committee of the
Board of Directors of the Company.
(f) "Common Stock" shall mean the common stock of the Company
as described in the Company's Articles of Incorporation, or such other stock as
shall be substituted therefor.
(g) "Company" shall mean Sunglass Hut International, Inc., a
Florida corporation, or any successor to the Company.
(h) Disability" shall mean a permanent and total disability
(within the meaning of Section 22(e) of the Code), as determined by a medical
doctor satisfactory to the Committee.
(i) "Disposition" shall mean any sale, transfer, encumbrance,
gift, donation, assignment, pledge, hypothecation, or other disposition, whether
similar or dissimilar to those previously enumerated, whether voluntary or
involuntary, and including, but not limited to, any disposition by operation of
law, by court order, by judicial process, or by foreclosure, levy or attachment.
(j) "Earnings Per Share" shall mean earnings per share of the
Company, as reflected in the audited annual financial statements of the Company
for the year, excluding the impact of extraordinary items, non-recurring charges
and/or Watch Station and other non-Sunglass Hut business units that may be
established in the future.
(k) "Restricted Stock" shall mean the Common Stock awarded
to the Executive under the terms of this Agreement.
2. AWARD OF RESTRICTED STOCK. As of the date of this Agreement, the
Committee has granted the Award to the Executive, consisting of two hundred
thousand (200,000) shares of Common Stock. Such shares shall be issued promptly
hereafter in the Executive's name.
3. DELIVERY OF RESTRICTED STOCK.
(a) The restrictions on the Restricted Stock shall lapse, and
the shares of the Restricted Stock shall be delivered to the Executive,
cumulatively according to the following schedule (provided in each case that the
Executive is an employee of the Company or any of its subsidiaries on such
relevant vesting date):
66,667 shares on April 1, 1998
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66,667 shares on April 1, 1999
66,666 shares on April 1, 2000
(b) The restrictions on all of the shares of Restricted Stock
shall also lapse, and all such shares of Restricted Stock shall be delivered to
the Executive (or his beneficiaries or estate pursuant to Section 7 hereof in
the event of his death), promptly after the first to occur of the following:
(i) termination of the Executive's employment with
the Company and its subsidiaries by reason of the Executive's death or
Disability; or
(ii) the occurrence of a Change in Control of the
Company.
(c) One or more stock certificates evidencing the Restricted
Stock shall be issued in the name of the Executive. All such stock certificates
shall bear the following legend:
"The shares of the Common Stock evidenced by this Certificate
are subject to the terms and conditions of a Restricted Stock
Agreement dated April 1, 1997 between the registered owner and
Sunglass Hut International, Inc.; such shares are subject to
forfeiture under the terms of said Agreement; and such shares
shall not be sold, transferred, assigned, pledged, encumbered
or otherwise alienated or hypothecated except pursuant to the
provisions of said Agreement, a copy of which is available
from Sunglass Hut International, Inc. upon request."
Until certificates evidencing the shares of the Restricted Stock are delivered
without restrictions to the Executive in accordance with the terms of this
Agreement, the Executive shall (upon request by the Company) deposit with the
Company stock powers or other instruments of transfer or assignment, duly
endorsed in blank with signature guaranteed, corresponding to each certificate
for Restricted Stock. If the Executive shall fail to provide the Company with
any such stock power or other instrument of transfer or assignment, the
Executive hereby irrevocably appoints the Secretary of the Company as his
attorney-in-fact to execute and deliver any such power or other instrument which
may be necessary to effectuate the transfer of the Restricted Stock (or
assignment of distributions thereon) on the books and records of the Company.
(d) The Executive shall not effect a Disposition of any
shares of Restricted Stock unless, until and to the extent the restrictions
imposed upon such stock shall have lapsed in accordance with this Agreement. Any
attempt to effect a Disposition of any shares of Restricted Stock prior to the
date on which the restrictions have lapsed, shall be void ab initio.
4. FORFEITURE UPON TERMINATION OF EMPLOYMENT.
(a) Subject to paragraph (b) of this Section 4, if the
Executive's employment with the Company and its subsidiaries is terminated for
any reason prior to the date on which the
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restrictions on shares of Restricted Stock have lapsed pursuant to Section 3
hereof, the shares of Restricted Stock with respect to which the restrictions
have not so lapsed shall be returned to the Company and shall be deemed to have
been forfeited by the Executive. The Committee shall have the power and
authority to enforce on behalf of the Company any rights of the Company under
this Agreement in the event of the Executive's forfeiture of the shares of
Restricted Stock pursuant to this Agreement.
(b) Notwithstanding the foregoing, the restrictions on any
shares of Non-Forfeited Stock shall lapse, and the Non-Forfeited Stock shall be
promptly delivered to the Executive, upon the Company's termination of the
Executive's employment other than for Cause.
5. RIGHTS WITH RESPECT TO RESTRICTED STOCK.
(a) Except as otherwise provided in this Agreement, the
Executive shall have, with respect to all shares of Restricted Stock, all the
rights of a shareholder of the Company, including the right to vote the
Restricted Stock and the right to receive cash dividends, if any, as may be
declared on the Restricted Stock from time to time. Any shares of Common Stock
issued to the Executive as a dividend with respect to Restricted Stock shall
have the same status and bear the same legend as the Restricted Stock.
(b) In the event that the Common Stock, as a result of a
stock split or stock dividend or combination of shares or any other change or
exchange for other securities, by reclassification, reorganization or otherwise,
is increased or decreased or changed into or exchanged for a different number or
kind of shares of stock or other securities of the Company or of another
corporation, the number of shares of the Restricted Stock shall be
appropriately adjusted to reflect such change. If any such adjustment shall
result in a fractional share, such fraction shall be disregarded.
6. TAXES.
(a) The Executive agrees that he shall not make an election
(a "Section 83(b) Election") pursuant to Section 83(b) of the Internal Revenue
Code of 1986, as amended, to include the value of the Restricted Stock in his
gross income for 1997. In the event that notwithstanding the foregoing, the
Executive shall make a Section 83(b) Election with regard to the Restricted
Stock, then all of the Restricted Stock, and any dividends received by the
Executive with respect thereto, immediately shall be forfeited by the Executive
and shall be returned to the Company, and this Agreement shall be void ab
initio.
(b) The Executive shall, no later than the date as of which
any restrictions referred to in this Agreement hereof shall lapse, pay to the
Company, or make arrangements satisfactory to the Compensation Committee for
payment of, any federal, state or local taxes of any kind required by law to be
withheld with respect to the Restricted Stock with respect to which the
restrictions have lapsed, and the Company shall, to the extent permitted by law,
have
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the right to deduct from any payment of any kind otherwise due to Executive
any federal, state, or local taxes of any kind required by law to be withheld
with respect to such Restricted Stock.
7. DELIVERY UPON DEATH. In the event of the Executive's death while
employed by the Company and its subsidiaries, any shares of Restricted Stock
that previously had not been forfeited pursuant to Sections 3 or 4 hereof shall
be delivered, without continuance of any restrictions provided for in this
Agreement, to the beneficiary or beneficiaries designated by the Executive, or
if the Executive has not so designated any beneficiary, or no designated
beneficiary survives the Executive, such shares shall be delivered to the
personal representative of the Executive's estate.
8. AMENDMENT, MODIFICATION AND ASSIGNMENT. No provision of this
Agreement may be modified, waived or discharged unless such waiver, modification
or discharge is agreed to in writing signed by the Executive and the Committee.
No waiver by either party of any breach by the other party hereto of any
condition or provision of this Agreement shall be deemed a waiver of any other
conditions or provisions of this Agreement. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not set forth expressly in this
Agreement. This Agreement shall not be assigned by the Executive in whole or in
part. The rights and obligations created hereunder shall be binding on the
Executive and his heirs and legal representatives and on the successors and
assigns of the Company.
9. MISCELLANEOUS
(a) NO RIGHT TO EMPLOYMENT. The grant of the Award shall not
be construed as giving the Executive the right to be retained in the employ
of the Company nor affect in any way the right of the Company to terminate such
employment at any time, with or without cause.
(b) NO LIMIT ON OTHER COMPENSATION ARRANGEMENTS. Nothing
contained in this Agreement shall preclude the Company from adopting or
continuing in effect other or additional compensation arrangements, and such
arrangements may be either generally applicable or applicable only in specific
cases.
(c) SEVERABILITY. If any provision of this Agreement is or
becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction
or would disqualify this Agreement or the Award under any applicable law, such
provision shall be construed or deemed amended to conform to applicable law (or
if such provision cannot be so construed or deemed amended without materially
altering the purpose or intent of this Agreement and the Award, such provision
shall be stricken as to such jurisdiction and the remainder of this Agreement
and the Award shall remain in full force and effect).
(d) NO TRUST OR FUND CREATED. Neither this Agreement nor the
Award shall create or be construed to create a trust or separate fund of any
kind or a fiduciary relationship between the Company and the Executive or any
other person. To the extent that the Executive or
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any other person acquires a right to receive payments from the Company pursuant
to this Agreement, such right shall be no greater than the right of any
unsecured general creditor of the Company.
(e) GOVERNING LAW. The validity, interpretation, construction
and performance of this Agreement shall be governed by the laws of the State
of Florida.
(f) HEADINGS. Headings are given to the Sections and
Subsections of this Agreement solely as a convenience to facilitate reference.
Such headings shall not be deemed in any way material or relevant to the
construction or interpretation of this Agreement or any provision thereof.
(g) INTERPRETATION. The Executive accepts the Restricted
Stock subject to all of the terms and provisions of the Plan and this Agreement.
The Executive hereby accepts as binding, conclusive and final all decisions or
interpretations of the Committee or the Board upon any questions arising under
the Plan and this Agreement.
(h) PLAN CONTROLS. In the event of any actual or alleged
conflict between the provisions of the Plan and the provisions of this
Agreement, the provisions of the Plan shall be controlling and determinative.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
SUNGLASS HUT INTERNATIONAL, INC.
By:_____________________________________
XXXX X. XXXXXXX, President and Chief
Executive Officer
________________________________________
XXXXXX X. XXXXX
