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EXHIBIT 10.15
RESTRICTED STOCK
AWARD AGREEMENT
THIS RESTRICTED STOCK AWARD AGREEMENT (this "Agreement") is dated
as of the 3rd day of January, 2001, by and between PACIFIC SUNWEAR OF
CALIFORNIA, INC., a California corporation (the "Corporation"), and Xxxx X.
Xxxxxx (the "Participant").
WITNESSETH
WHEREAS, pursuant to the Corporation's 1999 Stock Award Plan (the
"1999 Plan"), the Corporation has granted to the Participant, effective as of
January 3, 2001 (the "Award Date"), a restricted stock award (the "Award") upon
the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises and
covenants made herein and the mutual benefits to be derived herefrom, the
parties hereto agree as follows:
1. GRANT OF AWARD. (a) The Corporation has granted to the
Participant an Award with respect to an aggregate of 75,000 shares of Restricted
Stock (as such term is defined in the 1999 Plan) at the price of $.01 per share
(the "Price"). Capitalized terms used herein without definition shall have the
meanings given to them in the Plan.
(b) The Corporation shall issue a certificate or certificates for
the shares of Restricted Stock subject to the Award, registered in the name of
the Participant, which certificate(s) shall be held by the Corporation until the
restrictions on such shares shall have lapsed and the shares shall thereby have
become vested. The Award shall vest as to 18,750 shares of Common Stock on each
of March 15, 2002, 2003, 2004 and 2005 if, at the time of the vesting date, the
Minimum Rate of Growth in EPS (as defined) has been met on the vesting date.
Minimum Rate of Growth in EPS means that EPS (as such term is defined in Exhibit
A to the 1999 Plan) has increased at a rate of 15% or more per year over the
vesting period prior to the scheduled vesting date where EPS for the
Corporation's fiscal year ended February 4, 2001 is the base year (the "Base
Year"). For example, if EPS for the Base Year is $1.00, then it is a condition
to vesting of (i) the first installment of Restricted Stock that EPS for the
Corporation's fiscal year ended on or about February 3, 2002 equal or exceed
$1.15, (ii) the second installment of Restricted Stock that EPS for the
Corporation's fiscal year ended on or about January 31, 2003 equal or exceed
$1.32, (iii) the third installment of Restricted Stock that EPS for the
Corporation's fiscal year ended on or about January 31, 2004 equal or exceed
$1.52 and (iv) the fourth installment of Restricted Stock that EPS for the
Corporation's fiscal year ended on or about January 31, 2005 equal or exceed
$1.75. In the event that audited financial statements are not available as of a
vesting date, then the determination of satisfaction or non-satisfaction of the
Minimum Rate of Growth in EPS shall be delayed until such audited financial
statements become available. Notwithstanding anything else contained herein to
the contrary, vesting shall
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only occur if the Corporation's Compensation Committee certifies in writing that
the applicable Minimum Rate of Growth in EPS has been achieved. In the event
that the Minimum Rate of Growth in EPS is not satisfied as of a scheduled
vesting date, the shares otherwise scheduled to vest on such date shall not vest
but shall remain available for vesting in the event that the Minimum Rate of
Growth in EPS for a later scheduled vesting date is achieved, in which event the
shares previously scheduled to vest as of an earlier date shall vest. The
parties hereto agree that the Minimum Rate of Growth in EPS is based on the
current operations of the Corporation and that in the event of an acquisition by
the Corporation of any business (whether by purchase of assets, stock or
merger), the Minimum Rate of Growth in EPS shall, if possible, be calculated
without regard to the acquisition and, if not possible, the parties hereto shall
negotiate (in all cases subject to the provisions of Section 162(m) of the
Internal Revenue Service Code) appropriate adjustments to the Maximum Rate of
Growth in EPS. The shares of Restricted Stock subject to the Award shall, to the
extent not vested on March 15, 2005 in connection with the Corporation's prior
fiscal years, be forfeited (subject to any greater period of time that the
Corporation's Compensation Committee may require to review the Corporation's EPS
for its fiscal year ended on or about January 31, 2005).
(c) The Participant shall execute a stock power or stock powers,
in blank, with respect to such certificate(s) and shall deliver the same to the
Corporation. The Participant, by acceptance of the Award, hereby appoints the
Corporation and each of its authorized representatives as the Participant's
attorney(s)-in-fact to effect any transfer of such shares to the Corporation as
may be required pursuant to the Plan or this Agreement and to execute such
documents as the Corporation or such representatives deem necessary or advisable
in connection with any such transfer.
2. RESTRICTED STOCK. (a) Prior to the Vesting Date(s), the shares
of Restricted Stock subject to the Award may not be sold, assigned, transferred,
pledged or otherwise disposed of or encumbered, either voluntarily or
involuntarily.
(b) The Participant shall be entitled to dividend and voting
rights with respect to the shares of Restricted Stock subject to the Award even
though such shares are not vested, provided that such rights shall terminate
immediately as to any Restricted Stock which is forfeited. Any property received
by the Participant pursuant to an adjustment in accordance with Section 6.2 of
the 1999 Plan with respect to the Restricted Stock will be subject to the
restrictions set forth in this Agreement to the same extent as the shares of
Restricted Stock to which such property relates.
3. LAPSE OF RESTRICTIONS. The shares of Restricted Stock shall
vest on the Vesting Date(s) specified in Section 1(b) hereof, subject to the
terms thereof and provided that the other restrictions, if any, set forth in
this Agreement with respect to such shares shall have lapsed on or before the
Vesting Date. Promptly after the Vesting Date, a certificate or certificates
evidencing the number of shares of Common Stock as to which the restrictions
have lapsed or such lesser number as may be permitted pursuant to Section 11
hereof shall be delivered to the Participant. The
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Participant shall deliver to the Corporation any written statements required
pursuant to Section 8 hereof.
4. EFFECT OF TERMINATION OF RELATIONSHIP. (a) Upon the date the
Participant is no longer employed by the Company, by reason of death, voluntary
resignation, permanent disability or termination for cause (as those terms are
defined in that certain Amended and Restated Employment Agreement dated February
5, 2001 between Participant and the Corporation (the "Employment Agreement")),
the Participant's shares of Restricted Stock shall be forfeited on such date to
the extent such shares have not become vested on that date.
(b) Upon forfeiture of shares of Restricted Stock pursuant to
Section 1(b) or 4(a) above, the Participant, or the Participant's Beneficiary or
Personal Representative, as the case may be, shall transfer to the Corporation
the portion of the Award not vested at the date of termination of employment,
without payment of any consideration by the Company for such transfer other than
an amount equal to the Price per share of Restricted Stock forfeited.
Notwithstanding any such transfer to the Corporation, or failure, refusal or
neglect to transfer, by the Participant, or the Participant's Beneficiary or
Personal Representative, as the case may be, such nonvested portion of the Award
shall be deemed transferred automatically to the Corporation on the date of
forfeiture.
5. NON-ASSIGNABILITY OF AWARD. As set forth in Section 1.7 of the
1999 Plan, amounts payable pursuant to the Award shall be paid only to the
Participant or the Participant's Beneficiary or Personal Representative, as the
case may be. Amounts payable under and interests in the Award shall not subject
to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or
charge other than by will or the laws of descent and distribution regardless of
any community property or other interest therein of the Participant's spouse or
such spouse's successor in interest. In the event that the spouse of the
Participant shall have acquired a community property interest in the Option, the
Participant, or such transferees, may exercise it on behalf of the spouse of the
Participant or such spouse's successor in interest. Amounts payable under and
interests in the Award shall not, in any manner, be liable for, or subject to,
debts, contracts, liabilities, engagements or torts of the Participant or the
Participant's Beneficiary or Personal Representative.
6. ADJUSTMENTS UPON SPECIFIED CHANGES. As set forth in Section
5.2(f) of the 1999 Plan, upon the occurrence of specified events relating to the
Corporation's stock, adjustments will be made in the number and kind of shares
that may be issuable under or in the consideration payable with respect to the
Award.
7. ACCELERATION. Notwithstanding any other provisions of the 1999
Plan or this Agreement and subject to any applicable restriction imposed by the
Securities Exchange Act of 1934 and the rules thereunder, to the extent that the
Award is not then vested and has not previously terminated or been forfeited, it
shall become immediately vested (i) upon the date the Participant is no longer
employed by the Corporation by reason of termination or non-renewal of
Participant's employment by the Corporation without cause (as defined in Section
3(e) of the
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Employment Agreement) or (ii) immediately prior to the effective date of (a) the
dissolution or liquidation of the Corporation, (b) the merger or consolidation
or other reorganization of the Corporation with or into one or more entities
other than a subsidiary, as a result of which less than 50% of the outstanding
voting securities of the surviving or resulting entity are, or are to be, owned
by shareholders of the Corporation immediately prior to such event or (c) the
sale of substantially all of the Corporation's business assets to a person or
entity which is not a subsidiary. Notwithstanding any other provisions of the
1999 Plan or this Agreement and subject to any applicable restriction imposed by
the Securities Exchange Act of 1934 and the rules thereunder, to the extent that
the Award is not then vested and has not previously terminated or been
forfeited, it shall also become immediately vested if (i) any person or entity
or group or affiliated persons or entities, including a group which is deemed a
"person" by Section 13(d)(3) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), first acquires in one or more transactions ownership of
50% or more of the outstanding shares of the Common Stock of this Corporation or
(ii) during any period of two consecutive years individuals who at the beginning
of such period constitute the Board of Directors of the Corporation cease for
any reason to constitute at least a majority thereof unless, at the time of
election of each new director during such two year period, such election was
approved by the vote of a majority or more of the remaining directors (excluding
Employee) who were also directors at the beginning of the period; provided,
however, that if only two directors at the time of such vote were directors at
the beginning of the period, then the election of each new director need be
approved by the vote of only one of such two directors. Upon the occurrence of
events specified in this Section 7 where acceleration of the vesting of the
Award is not permissible under the applicable Securities and Exchange Commission
rules, any such outstanding portion of the Award will terminate and any
Restricted Stock will be forfeited and the Corporation shall thereupon pay to
the Participant an amount equal to the Price per share of Restricted Stock
forfeited. "Ownership" means beneficial or record ownership, directly or
indirectly, other than (i) by a person owning such shares merely of record (such
as a member of a securities exchange, a nominee or a securities depositary
system), (ii) by a person as a bona fide pledge of shares prior to a default and
determination to exercise powers as an owner of the shares, (iii) by a person
who is not required to file statements on Schedule 13D by virtue of Rule
13d-1(b) of the Securities and Exchange Commission under the Exchange Act, or
(iv) by a person who owns or holds shares as an underwriter acquired in
connection with an underwritten offering pending and for purposes of their
public resale or planned private placement or by persons who were shareholders
of the Corporation on or before March 15, 1993 or their respective successors.
Without limitation, the right to acquire ownership shall not of itself
constitute ownership of shares.
8. APPLICATION OF SECURITIES LAWS. (a) No shares of Common Stock
may be issued pursuant to the Award or subsequently offered for sale unless and
until any then applicable requirements of the Securities and Exchange Commission
(the "Commission"), the California Commissioner of Corporations or any other
regulatory agency having jurisdiction and any exchanges upon which the Common
Stock may be listed shall have been fully complied with. Upon the Corporation's
request, the Participant, or any other person entitled to such shares of Common
Stock pursuant to the Award, shall provide written assurance of such compliance
satisfactory to the Corporation.
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(b) The Committee may impose such conditions on the Award or on
its acceleration or on the payment of any withholding obligation as may be
required to satisfy applicable regulatory requirements, including, without
limitation, Rule 16b-3 (or any successor rule) promulgated by the Commission
pursuant to the Securities Exchange Act of 1934, as amended.
9. NOTICES. Any notice to be given to the Corporation under the
terms of this Agreement or pursuant to the 1999 Plan shall be in writing and
addressed to the Secretary of the Corporation at its principal office and any
notice to be given to the Participant shall be addressed to him or her at the
address given beneath the Participant's signature hereto, or at such other
address as either party may hereafter designate in writing to the other party.
Any such notice shall be deemed to have been duly given when enclosed in a
properly sealed envelope addressed as aforesaid, registered or certified, and
deposited (postage and registry or certification fee prepaid) in a post office
or branch post office regularly maintained by the United States Government.
10. EFFECT OF AGREEMENT. This Agreement shall inure to the
benefit of any successor or successors of the Corporation. Notwithstanding the
foregoing, this Agreement shall not be assumed by or be binding upon any
successor or successors of the Corporation unless, in accordance with Section
6.2 of the 1999 Plan, provision for assumption of the Award is made in
connection with (i) any dissolution or liquidation, (ii) upon a reorganization,
merger or consolidation of the Corporation with one or more corporations as a
result of which the Corporation is not the surviving corporation, or (iii) upon
a sale of substantially all the property of the Corporation.
11. TAX WITHHOLDING. At the time that the shares of Restricted
Stock vest or are treated as vesting under an election pursuant to Section 83(b)
of the Internal Revenue Code, the Participant may be given the opportunity to
elect to pay such amounts to the Corporation in cash or in Common Stock, in
accordance with procedures established by the Committee, as may be necessary to
meet any withholding requirements imposed by federal, state, local, or foreign
tax law with respect thereto. If such a withholding election is not permitted or
not made, the Corporation may reduce the number of shares delivered at the time
of vesting, but only in the event that a Section 83(b) election has not been
made, by such number of shares as the Corporation may deem appropriate to meet
such withholding requirements. To the extent the Participant does not provide
for the amount of any required tax withholding and the Corporation can not (or
elects not to) use a share off-set, the Corporation shall have the right to
deduct the amount of any required withholding from other amounts payable to the
Participant by the Corporation.
12. THE PLAN. The Award and all rights of the Participant
thereunder are subject to, and the Participant agrees to be bound by, all of the
terms and conditions of the provisions of the 1999 Plan, incorporated herein by
this reference. In the event of a conflict or inconsistency between the terms
and conditions of this Agreement and of the 1999 Plan, except as otherwise
expressly stated herein, the terms and conditions of the 1999 Plan shall govern.
The Participant acknowledges receipt of a copy of the 1999 Plan, which is made a
part hereof by this
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reference, and agrees to be bound by the terms thereof. Unless otherwise
expressly provided in other Sections of this Agreement, provisions of the 1999
Plan that confer discretionary authority on the Committee do not (and shall not
be deemed to) create any rights in the Participant unless such rights are
expressly set forth herein or are otherwise in the sole discretion of the
Committee so conferred by appropriate action of the Committee under the Plan
after the date hereof.
IN WITNESS WHEREOF, the Corporation has caused this Agreement to
be executed on its behalf by a duly authorized officer and the Participant has
hereunto set his or her hand as of the date and year first above written.
PACIFIC SUNWEAR OF CALIFORNIA,
INC., A CALIFORNIA CORPORATION
By: __________________________
Title: _______________________
PARTICIPANT
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(Signature)
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(Print Name)
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(Address)
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(City, State, Zip Code)
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(Social Security Number)
CONSENT OF SPOUSE
In consideration of the execution of the foregoing Restricted
Stock Award Agreement by the Corporation, I, _________________, the spouse of
the Participant herein named, do hereby join with my spouse in executing the
foregoing Restricted Stock Award Agreement and do hereby agree to be bound by
all of the terms and provisions thereof and of the Plan.
DATED: ____________________, 20__. __________________________
Signature of Spouse
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