Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers

EX-10.3 4 a30621exv10w3.txt EXHIBIT 10.3 EXHIBIT 10.3 PACIFIC SUNWEAR OF CALIFORNIA, INC. 2005 PERFORMANCE INCENTIVE PLAN RESTRICTED STOCK UNIT AWARD AGREEMENT THIS RESTRICTED STOCK UNIT AWARD AGREEMENT (this "Agreement") is dated as of May 24, 2007 by and between Pacific Sunwear of California, Inc., a California corporation (the "Corporation"), and Sally Frame Kasaks (the "Participant"). W I T N E S S E T H WHEREAS, pursuant to the Pacific Sunwear of California, Inc. 2005 Performance Incentive Plan (the "Plan"), the Corporation has granted to the Participant effective as of the date hereof (the "Award Date"), a credit of restricted stock units under the Plan (the "Award"), upon the terms and conditions set forth herein and in the Plan. NOW THEREFORE, in consideration of services rendered and to be rendered by the Participant, and the mutual promises made herein and the mutual benefits to be derived therefrom, the parties agree as follows: 1. Defined Terms. Capitalized terms used herein and not otherwise defined herein shall have the meaning assigned to such terms in the Plan. 2. Grant. Subject to the terms of this Agreement, the Corporation hereby grants to the Participant an Award with respect to an aggregate of 100,000 stock units (subject to adjustment as provided in Section 7.1 of the Plan) (the "Restricted Stock Units"). As used herein, the term "stock unit" shall mean a non-voting unit of measurement which is deemed for bookkeeping purposes to be equivalent to one outstanding share of the Corporation's Common Stock (subject to adjustment as provided in Section 7.1 of the Plan) solely for purposes of the Plan and this Agreement. The Restricted Stock Units shall be used solely as a device for the determination of the payment to eventually be made to the Participant if such Restricted Stock Units vest pursuant to Section 3, Section 8 or Section 9. The Restricted Stock Units shall not be treated as property or as a trust fund of any kind. Reference is made to that certain Employment Agreement (the "Employment Agreement"), dated as of May 22, 2007, between the Corporation and the Participant. The Award is in complete satisfaction of the rights of the Participant to be granted restricted stock units by the Corporation pursuant to Section 3(d)(2) of the Employment Agreement. 3. Vesting. Subject to Section 8 below, the Award shall vest and become nonforfeitable with respect to one-hundred (100%) of the total number of Restricted Stock Units (subject to adjustment under Section 7.1 of the Plan) on January 31, 2010. 4. Continuance of Employment. Except as otherwise provided herein, the vesting schedule requires continued employment through the vesting date as a condition to the vesting of the Award and the rights and benefits under this Agreement. Employment for only a portion of the vesting period, even if a substantial portion, will not entitle the Participant to any proportionate vesting or avoid or mitigate a termination of rights and benefits upon or following a termination of employment as provided in Section 8 below or under the Plan. 1 Nothing contained in this Agreement or the Plan constitutes an employment or service commitment by the Corporation, affects the Participant's status as an employee at will who is subject to termination without cause, confers upon the Participant any right to remain employed by or in service to the Corporation or any Subsidiary, interferes in any way with the right of the Corporation or any Subsidiary at any time to terminate such employment or services, or affects the right of the Corporation or any Subsidiary to increase or decrease the Participant's other compensation or benefits. Nothing in this paragraph, however, is intended to adversely affect the terms of the Employment Agreement or any other independent contractual right of the Participant without her consent thereto. 5. Dividend and Voting Rights. (a) Limitations on Rights Associated with Units. The Participant shall have no rights as a stockholder of the Corporation, no dividend rights (except as expressly provided in Section 5(b) with respect to Dividend Equivalent Rights) and no voting rights, with respect to the Restricted Stock Units and any shares of Common Stock underlying or issuable in respect of such Restricted Stock Units until such shares of Common Stock are actually issued to and held of record by the Participant. No adjustments will be made for dividends or other rights of a holder for which the record date is prior to the date of issuance of the stock certificate. (b) Dividend Equivalent Rights Distributions. As of any date that the Corporation pays an ordinary cash dividend on its Common Stock, the Corporation shall pay the Participant an amount equal to the per share cash dividend paid by the Corporation on its Common Stock on such date multiplied by the number of Restricted Stock Units remaining subject to this Award as of the related dividend payment record date. No such payment shall be made with respect to any Restricted Stock Units which, as of such record date, have either been paid pursuant to Section 7 or terminated pursuant to Section 8. 6. Restrictions on Transfer. Neither the Award, nor any interest therein or amount or shares payable in respect thereof may be sold, assigned, transferred, pledged or otherwise disposed of, alienated or encumbered, either voluntarily or involuntarily. The transfer restrictions in the preceding sentence shall not apply to (a) transfers to the Corporation, or (b) transfers by will or the laws of descent and distribution. 7. Timing and Manner of Payment of Restricted Stock Units. On or as soon as administratively practical following the vesting of the Award pursuant to Section 3, Section 8 or Section 9 (and in any event within seventy-five (75) days following such vesting event), the Corporation shall deliver to the Participant a number of shares of Common Stock (either by delivering one or more certificates for such shares or by entering such shares in book entry form, as determined by the Corporation in its discretion) equal to the number of Restricted Stock Units subject to this Award that vest on the applicable vesting date, unless such Restricted Stock Units terminate prior to the given vesting date pursuant to Section 8; provided, however, that any payment hereunder of the Restricted Stock Units that is triggered by a termination of the Participant's employment or services shall be subject to Section 29(c) of the Employment Agreement. The Corporation's obligation to deliver shares of Common Stock or otherwise make payment with respect to vested Restricted Stock Units is subject to the condition precedent that the Participant or other person entitled under the Plan to receive any shares with respect to the 2 vested Restricted Stock Units deliver to the Corporation any representations or other documents or assurances required pursuant to Section 8.1 of the Plan. The Participant shall have no further rights with respect to any Restricted Stock Units that are paid or that terminate pursuant to Section 8 hereof or Section 7 of the Plan. 8. Effect of Termination of Employment. The Participant's Restricted Stock Units shall terminate to the extent such units have not become vested prior to the first date the Participant is no longer employed by the Corporation, regardless of the reason for the termination of the Participant's employment and regardless of whether the Participant continues to serve thereafter as a member of the Board or otherwise provides services to the Corporation in any capacity other than as an employee; provided, however, that in the event that the Participant's employment is terminated by the Corporation without Cause (as defined in the Employment Agreement) or by the Participant for Good Reason (as defined in the Employment Agreement), the Restricted Stock Units, to the extent then outstanding and unvested, shall become fully vested as of the date of the termination of the Participant's employment. If any unvested Restricted Stock Units are terminated hereunder, such Restricted Stock Units shall automatically terminate and be cancelled as of the applicable termination date without payment of any consideration by the Corporation and without any other action by the Participant, or the Participant's beneficiary or personal representative, as the case may be. 9. Adjustments; Change in Control. Upon the occurrence of certain events relating to the Corporation's stock contemplated by Section 7.1 of the Plan (including, without limitation, an extraordinary cash dividend on such stock), the Administrator shall make adjustments in accordance with such section in the number of Restricted Stock Units then outstanding and the number and kind of securities that may be issued in respect of the Award. No such adjustment shall be made with respect to any ordinary cash dividend for which dividend equivalents are paid pursuant to Section 5(b). In the event that the vesting of the Restricted Stock Units is accelerated pursuant to Section 7 of the Plan and a successor corporation refuses to assume the Plan and the then-outstanding awards under the Plan (including any then-outstanding Restricted Stock Units) in connection with an event that constitutes a change in ownership or effective control of the Corporation (within the meaning of Section 409A of the Code and regulations and other guidance of the Internal Revenue Service promulgated thereunder), and, thus, the Plan and the then-outstanding awards thereunder (including any then-outstanding Restricted Stock Units) will be terminated in connection with such event, the Restricted Stock Units shall terminate and be paid in connection with such event in a manner compliant with Treas. Reg. Section 1.409A-3(j)(4)(ix)(B) promulgated under the Code (or any similar successor provision). 10.Tax Withholding. Subject to Section 8.1 of the Plan, upon any distribution of shares of Common Stock in respect of the Restricted Stock Units, the Corporation shall automatically reduce the number of shares to be delivered by (or otherwise reacquire) the appropriate number of whole shares, valued at their then fair market value (with the "fair market value" of such shares determined in accordance with the applicable provisions of the Plan), to satisfy any withholding obligations of the Corporation or its Subsidiaries with respect to such distribution of shares at the minimum applicable withholding rates. In the event that the Corporation cannot legally satisfy such withholding obligations by such reduction of shares, or in the event of a cash payment or any other withholding event in respect of the Restricted Stock Units, the Corporation (or a Subsidiary) shall be entitled to require a cash payment by or on behalf of the Participant 3 and/or to deduct from other compensation payable to the Participant any sums required by federal, state or local tax law to be withheld with respect to such distribution or payment. 11.Notices. Any notice to be given under the terms of this Agreement shall be in writing and addressed to the Corporation at its principal office to the attention of the Secretary, and to the Participant at the Participant's last address reflected on the Corporation's records, or at such other address as either party may hereafter designate in writing to the other. Any such notice shall be given only when received, but if the Participant is no longer an employee of the Corporation, shall be deemed to have been duly given by the Corporation 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. 12.Plan. The Award and all rights of the Participant under this Agreement are subject to the terms and conditions of the provisions of the Plan, incorporated herein by reference. The Participant agrees to be bound by the terms of the Plan and this Agreement. The Participant acknowledges having read and understanding the Plan, the Prospectus for the Plan, and this Agreement. Unless otherwise expressly provided in other sections of this Agreement, provisions of the Plan that confer discretionary authority on the Board or the Administrator 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 Board or the Administrator so conferred by appropriate action of the Board or the Administrator under the Plan after the date hereof. 13.Entire Agreement. This Agreement and the Plan, together with the Employment Agreement, constitute the entire agreement and supersede all prior understandings and agreements, written or oral, of the parties hereto with respect to the subject matter hereof. The Plan and this Agreement may be amended pursuant to Section 8.6 of the Plan. Such amendment must be in writing and signed by the Corporation. The Corporation may, however, unilaterally waive any provision hereof in writing to the extent such waiver does not adversely affect the interests of the Participant hereunder, but no such waiver shall operate as or be construed to be a subsequent waiver of the same provision or a waiver of any other provision hereof. 14.Limitation on Participant's Rights. Participation in the Plan confers no rights or interests other than as herein provided. This Agreement creates only a contractual obligation on the part of the Corporation as to amounts payable and shall not be construed as creating a trust. Neither the Plan nor any underlying program, in and of itself, has any assets. The Participant shall have only the rights of a general unsecured creditor of the Corporation with respect to amounts credited and benefits payable, if any, with respect to the Restricted Stock Units, and rights no greater than the right to receive the Common Stock as a general unsecured creditor with respect to the Restricted Stock Units, as and when payable hereunder. 15.Counterparts. This Agreement may be executed simultaneously in any number of counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. 16.Section Headings. The section headings of this Agreement are for convenience of reference only and shall not be deemed to alter or affect any provision hereof. 4 17.Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California without regard to conflict of law principles thereunder. 18.Construction. It is intended that the terms of the Award will not result in the imposition of any tax liability pursuant to Section 409A of the Code. This Agreement shall be construed and interpreted consistent with that intent. 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 her hand as of the date and year first above written. PACIFIC SUNWEAR OF CALIFORNIA, INC., a PARTICIPANT California corporation By: ---------------------------------- ------------------------------ Signature Print Name: --------------------------- Its: --------------------------------- ------------------------------ Print Name 5