Form of Restricted Stock Unit and Performance Unit Agreement

EX-10.1 2 exhibit101.htm EXHIBIT 10.1 exhibit101
 
 
 
 
 
 
 
 
 
 
 
1
DELTA
 
APPAREL, INC. 2020 STOCK PLAN
RESTRICTED STOCK UNIT AND PERFORMANCE UNIT AWARD AGREEMENT
THIS RESTRICTED
 
STOCK UNIT
 
AND PERFORMANCE
 
UNIT AWARD
 
AGREEMENT (“Agreement”)
 
by and
 
between DELTA
 
APPAREL,
 
INC., a
Georgia corporation (“Company”), and ___________________________ (“Participant”)
 
is effective January 3, 2022.
WHEREAS, the Compensation Committee of the Board of
 
Directors of the Company has, pursuant to the
 
Delta Apparel, Inc. 2020 Stock Plan (“Plan”), made
an Award of the grant of Restricted Stock Units and Performance Units of the Company to the Participant and authorized and directed the execution and delivery of this
Agreement;
NOW THEREFORE, in
 
consideration of the
 
foregoing, the mutual
 
promises hereinafter set
 
forth, and other
 
good and valuable
 
consideration, the receipt and
sufficiency of which is hereby acknowledged, the
 
Company and the Participant hereby agree
 
as follows. All capitalized terms not otherwise
 
defined herein shall have the
meaning ascribed to them in the Plan.
Section 1.
 
AWARD
 
OF RESTRICTED STOCK UNITS AND PERFORMANCE
 
UNITS
In consideration of the services
 
performed and to be performed
 
by the Participant, the Company
 
hereby awards to the Participant
 
under the Plan a total
 
of __
,000
Restricted Stock Units under Section 8(c) of the Plan and a total of __
,000
Performance Units under Section 8(e) of the Plan, both of which are subject to the terms and
conditions set forth in this Agreement
 
and the Plan. The value of each Restricted
 
Stock Unit and Performance Unit shall
 
be determined and measured by the value of
 
one
share of stock of the Company.
Section 2.
 
VESTING OF UNITS BASED ON SERVICE REQUIREMENTS
The Restricted Stock
 
Unit grants are
 
based on Service
 
requirements and shall vest
 
on the date
 
on which the
 
Company files with
 
the Securities and
 
Exchange
Commission its Annual Report on Form 10-K for the Company's
 
fiscal year ending _________________ ___, 202_ (“RSU Vesting Date”).
Notwithstanding the above, occurrence of any of the following
 
events shall cause the immediate vesting of Restricted Stock
 
Units:
(a)
The death of the Participant;
(b)
Disability of the Participant; or
(c)
A Change in Control.
 
Except as otherwise
 
set forth herein, the
 
unvested portion of the
 
Restricted Stock Unit
 
Award
 
shall be entirely
 
forfeited by the Participant
 
in the event
 
that
prior to vesting the Participant breaches any terms or conditions of the Plan, the Participant resigns from the Company,
 
the Participant's employment with the Company
is terminated for reasons other than death or Disability, or any conditions imposed upon vesting
 
are not met.
Section 3.
 
VESTING OF UNITS BASED ON PERFORMANCE REQUIREMENTS
The Performance
 
Unit grants
 
are based
 
on the
 
Company’s
 
achievement of
 
performance requirements
 
and shall
 
vest upon
 
the later
 
of the
 
date the
 
Board of
Directors (or committee
 
thereof, if applicable)
 
certifies in writing
 
that the Company
 
achieved the following
 
performance-based goals
 
established by the
 
Board of Directors
(or committee thereof, if applicable) on a consolidated basis
 
or the date on which the Company files with the Securities
 
and Exchange Commission its Annual Report on
Form 10-K for the Company's fiscal year ending _________________
 
___, 202_ (“PSU Vesting Date”):
Granted Units Earned based on Return
 
on Capital Employed
Fiscal Year 202__ Return on Capital
 
Employed Requirement
Minimum 50%
5%
Par 100%
10%
Maximum 150%
15%
Performance Unit Awards shall be prorated between the Minimum and Maximum percentages based upon
 
actual Return on Capital Employed results.
Return on Capital Employed shall mean an amount calculated by dividing the sum of Delta Apparel, Inc.'s consolidated earnings before interest and tax for the
202_ fiscal year by the sum of Delta Apparel, Inc.'s consolidated
 
average annual capital employed for the 202_ fiscal year.
 
Notwithstanding the above, occurrence of any of the following
 
events shall cause the immediate vesting at 100% of Performance
 
Units:
(a)
The death of the Participant;
(b)
Disability of the Participant; or
(c)
A Change in Control.
Except as otherwise set forth herein,
 
the unvested portion of the
 
Performance Unit Award
 
shall be entirely forfeited by the
 
Participant in the event that prior
 
to vesting
the Participant breaches any terms or conditions
 
of the Plan, the Participant resigns from
 
the Company, the Participant's employment with the Company is terminated
 
for
reasons other than death or Disability, or any conditions imposed upon vesting are not met.
Section 4.
 
NON-TRANSFERABILITY OF RIGHTS
 
 
 
 
2
The Participant shall have
 
no right to sell,
 
transfer, pledge, assign or otherwise
 
assign or hypothecate any
 
of the Participant's rights
 
under this Agreement or, until
the portion of the
 
Awards granted hereby
 
covering the Restricted
 
Stock Units and
 
Performance Units shall
 
vest, the Restricted
 
Stock Units and
 
Performance Units covered
by the
 
Award
 
granted hereby,
 
other than by
 
will or
 
the laws of
 
descent and distribution,
 
and such
 
rights shall be
 
exercisable during Participant's
 
lifetime only by
 
the
Participant.
Section 5.
 
PAYMENT
 
UPON VESTING OF RESTRICTED STOCK UNITS AND
 
PERFORMANCE UNITS
Subject to the terms and
 
conditions of the Plan, the
 
Company shall, as soon as practicable
 
following the RSU Vesting
 
Date (but no later than
 
March 15 of the
calendar year following the calendar year
 
that includes such vesting date), deliver
 
to you a number of
 
Shares equal to one-half of
 
the value of the aggregate number
 
of
Restricted Stock Units that became vested
 
on the RSU Vesting Date and a cash payment equal to one-half
 
of the value of the aggregate number
 
of Restricted Stock Units
that became vested on the RSU Vesting Date.
 
Subject to the terms and
 
conditions of the Plan, the
 
Company shall, as soon as
 
practicable following the PSU Vesting
 
Date (but no later than
 
March 15 of the
calendar year following the calendar year
 
that includes such vesting date), deliver
 
to you a number of
 
Shares equal to one-half of
 
the value of the aggregate number
 
of
Performance Units that became vested on
 
the PSU Vesting
 
Date and a cash payment
 
equal to one-half of
 
the value of the
 
aggregate number of Performance Units
 
that
became vested on the PSU Vesting Date.
 
Upon payment
 
by the
 
Company, the
 
respective Restricted Stock
 
Units and Performance
 
Units shall
 
therewith be cancelled.
 
The delivery
 
of Shares
 
and cash
awards under this Section 5 shall be subject to applicable
 
employment and income tax withholding and the terms
 
of Section 7 herein.
Section 6.
 
NO DIVIDEND OR VOTING RIGHTS
The Participant acknowledges that he or she shall be entitled
 
to no dividend or voting rights with respect to the
 
Restricted Stock Units or Performance Units.
Section 7.
 
WITHHOLDING TAXES; SECTION 83(b) ELECTION
 
 
(a)
No Shares will be payable upon the vesting of a Restricted Stock Unit or Performance Unit unless and until
 
the Participant satisfies any Federal, state or
local withholding tax obligation
 
required by law to
 
be withheld in respect
 
of this Award. The Participant acknowledges
 
and agrees that to
 
satisfy any such
tax obligation the Company
 
may deduct and retain
 
from the Shares payable
 
upon vesting of the
 
Restricted Stock Units or
 
Performance Units such
 
number
of Shares as is equal
 
in value to the Company's
 
minimum statutory withholding
 
obligations with respect to the
 
income recognized by the Participant
 
upon
such vesting (based
 
on minimum
 
statutory withholding
 
rates for Federal
 
and state tax
 
purposes, including
 
payroll taxes,
 
that are
 
applicable to
 
such income).
The number of such Shares to be deducted and retained shall be based on the closing price of the Shares on the day prior to the applicable RSU Vesting
Date or PSU Vesting Date.
 
 
(b)
The Participant acknowledges that in the event an election under Section 83(b) of the Internal
 
Revenue Code of 1986 is filed with respect to this Award,
Participant must give a copy of the election to the Company
 
within ten days after filing with the Internal Revenue
 
Service.
Section 8.
 
ENFORCEMENT; INCORPORATION OF PLAN PROVISIONS
The participant acknowledges receipt of the Delta
 
Apparel, Inc. 2020 Stock Plan (the “Plan”).
 
The Restricted Stock Units Award and Performance Units Award
evidenced hereby are made under and pursuant to the Plan, and incorporated herein by reference, and the Awards
 
are subject to all of the provisions thereof. Capitalized
terms used herein without definition shall have the same meanings given such terms in the Plan. The Participant represents and warrants that he or she has read the Plan
and is fully familiar with all the terms and conditions of the
 
Plan and agrees to be bound thereby.
Section 9.
 
MISCELLANEOUS
 
 
(a)
No Representations or
 
Warranties.
 
Neither the Company
 
nor the
 
Committee or any
 
of their
 
representatives or agents
 
has made any
 
representations or
warranties to the Participant with
 
respect to the income
 
tax or other consequences
 
of the transactions contemplated
 
by this Agreement, and the
 
Participant
is in no manner relying on the Company, the Committee or any of their representatives
 
or agents for an assessment of such tax or other
 
consequences.
 
 
(b)
Employment.
 
Nothing in this
 
Agreement or in
 
the Plan or in
 
the making of the
 
Award shall confer on the Participant
 
any right to
 
or guarantee of continued
employment with
 
the Company
 
or
 
any of
 
its
 
Subsidiaries or
 
in any
 
way limit
 
the
 
right of
 
the Company
 
or
 
any of
 
its
 
Subsidiaries to
 
terminate the
employment of the Participant at any time.
 
 
(c)
Investment.
 
The Participant hereby agrees and represents that any Shares
 
payable upon Vesting of the Restricted Stock Units or Performance Units shall
be held for the Participant's own account
 
for investment purposes only and not with
 
a view of resale or distribution unless the
 
Shares are registered under
the Securities Act of 1933, as amended.
 
 
(d)
Necessary Acts.
 
The Participant and
 
the Company hereby
 
agree to
 
perform any
 
further acts and
 
to execute and
 
deliver any
 
documents which may
 
be
reasonably necessary to carry out the provisions of this Agreement.
 
 
 
 
 
3
 
(e)
Severability.
 
The provisions
 
of this Agreement
 
are severable and
 
if any one
 
or more provisions
 
may be determined
 
to be illegal
 
or otherwise unenforceable,
in whole or in part, the
 
remaining provisions, and any partially enforceable provision to the
 
extent enforceable in any jurisdiction, shall nevertheless be
binding and enforceable.
 
 
(f)
Waiver.
 
The waiver by the Company of
 
a breach of any provision of
 
this Agreement by the Participant shall not
 
operate or be construed as a
 
waiver of
any subsequent breach by the Participant.
 
 
(g)
Binding Effect; Applicable Law.
 
This Agreement shall bind and inure to the benefit
 
of the Company and its successors and
 
assigns, and the Participant
and any heir,
 
legatee, or legal
 
representative of the
 
Participant. This Agreement shall
 
be construed, administered and
 
enforced in accordance
 
with and
subject to the terms of the Plan and the laws of the
 
State of Georgia.
 
 
(h)
Administration.
 
The authority
 
to manage
 
and control
 
the operation
 
and administration
 
of
 
this Agreement
 
shall be
 
vested in
 
the Committee,
 
and the
Committee shall have all powers with
 
respect to this Agreement as it has with
 
respect to the Plan. Any interpretation of
 
the Agreement by the Committee
and any decision made by it with respect to the Agreement
 
is final and binding.
 
 
(i)
Amendment. This Agreement may be amended by written
 
agreement of the Participant and the Company, without the consent of any other person.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and
 
year first hereinabove written.
DELTA
 
APPAREL, INC.
By: ___________________________
PARTICIPANT
_______________________________