Exhibit 10.15
THE STOCK APPRECIATION AND PHANTOM STOCK UNIT PLAN OF
PAYLESS SHOESOURCE, INC. AND ITS SUBSIDIARIES
FOR
PAYLESS SHOESOURCE INTERNATIONAL EMPLOYEES
AS
AMENDED SEPTEMBER 18, 2003
THE STOCK APPRECIATION AND PHANTOM STOCK UNIT PLAN
OF
PAYLESS SHOESOURCE, INC. AND ITS SUBSIDIARIES
FOR
PAYLESS SHOESOURCE INTERNATIONAL EMPLOYEES
Amended September 18, 2003
I. GENERAL
1. PURPOSE. The purpose of the Plan is to aid Payless ShoeSource,
Inc. and its subsidiaries in attracting, retaining, motivating and rewarding
certain management employees.
2. DEFINITIONS. Whenever used herein, the following terms shall have
the meanings set forth below:
(a) "Agreement" means the agreement between the Company
or any International Subsidiary and a Participant evidencing the
award of Stock Appreciation Units or Phantom Stock Units and
containing the terms and conditions, not inconsistent with the Plan,
that are applicable to such Units.
(b) "Award" means an award of Units under the Plan.
(c) "Exercise Price" means, with respect to a Stock
Appreciation Unit, the Fair Market Value of a share of Stock on the
date the Stock Appreciation Unit is granted.
(d) "Board" means the Board of Directors of Payless
ShoeSource, Inc., a Delaware corporation.
(e) "Committee" means a committee designated by the
Board which shall consist of not less than 2 members of the Board
who shall be appointed by and serve at the pleasure of the Board and
who shall be "outside" directors within the meaning of Section
162(m) of the Code.
(f) "Company" means Payless ShoeSource, Inc., a Delaware
corporation.
(g) "Disability" means a total and permanent disability
which enables the Participant to be eligible for and to receive
disability benefits under (i) the Social Security Act of the United
States of America or (ii) under any
comparable governmental arrangements in the country in which the
Participant resides.
(h) "Fair Market Value" of a share of Stock means the
average of the high and low price of the Stock on the New York Stock
Exchange on the date in question, or if no sales occurred on such
day, on the last preceding day on which Stock was traded.
(i) "International Subsidiary" means any Subsidiary
primarily engaged in business outside of the United States of
America.
(j) "Participant" means an individual to whom an Award
for Stock Appreciation Units or a Phantom Stock Units is made under
the Plan.
(k) "Phantom Stock Unit" means a non-transferrable, non-
assignable right described in Part II of the Plan awarded by the
Company or any Subsidiary and approved by the Committee under or
pursuant to the Plan which provides for the payment of an amount in
cash in accordance with such terms and conditions, not inconsistent
with the Plan, that are applicable to such Unit.
(l) "Plan" means The Stock Appreciation and Phantom
Stock Unit Plan of Payless ShoeSource, Inc. and Its Subsidiaries For
Payless ShoeSource International Employees.
(m) "Retirement" means "retirement" as that word is
defined in any retirement plan sponsored by an International
Subsidiary which is applicable to the Participant or, if there is no
such plan, as defined in the Company's Profit Sharing Plan.
(n) "Subsidiary" means any company owned, directly or
indirectly by the Company or any subsidiary thereof.
(o) "Stock" means common stock of the Company.
(p) "Stock Appreciation Unit" means a non-transferrable,
non- assignable right described in Part II of the Plan awarded by
the Company or any Subsidiary and approved by the Committee under or
pursuant to the Plan which provides for the payment of an amount in
cash in accordance with such terms and conditions, not inconsistent
with the Plan, that are applicable to such Unit and whose Exercise
Price is the Fair Market Value of a share of Stock on the date of
the Award.
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(q) "Unit" means a Stock Appreciation Unit or a Phantom
Stock Unit. Each Phantom Stock Unit shall represent the right to
receive 100% of the value of a share of Stock on the day the Unit
vests. Each Stock Appreciation Unit shall represent the right to
receive the difference, if positive, between the Fair Market Value
of a share of stock on the date the Unit is exercised and the
Exercise Price of the Unit. Units are not shares of stock and do not
entitle Participants to receive Stock or exercise any rights
incident to ownership of Stock, except that the Committee may
provide in an agreement that holders of Phantom Stock Units will
receive dividend equivalents if any cash dividends are paid on its
Stock by the Company.
3. ADMINISTRATION. The Plan shall be administered by the Committee.
Subject to all the applicable provisions of the Plan, including, without
limitation, Section 4 of Part I of the Plan, the Committee is authorized to
approve Awards of Units in accordance with the Plan, to construe and interpret
the Plan, to prescribe, amend, and rescind rules and regulations relating to the
Plan, and to make all determinations and take all actions necessary or advisable
for the Plan's administration. The Committee shall act by vote or written
consent of a majority of its members. Whenever the Plan authorizes or requires
the Committee to take any action, make any determination or decision, or form
any opinion, then any such action, determination, decision or opinion by or of
the Committee shall be in the absolute discretion of the Committee.
4. PARTICIPANTS. The individuals who are eligible to receive Awards for
Units hereunder shall be limited to management employees of any Subsidiary who,
on the date of the award of Units under the Plan, are not citizens of the United
States of America and who are employed and reside out of the boundaries of the
United States of America.
From time to time the Committee shall in its sole discretion, but
subject to all of the provisions of the Plan, determine which eligible employees
will receive Awards of Units under the Plan and the size, terms and conditions
of the Unit or Units to be awarded to each Participant. In any year, the
Committee may approve the award to any eligible employee of Units subject to
differing terms and conditions. Neither the Committee's decision to approve the
award of a Unit to that employee in any other year or to any other employee in
any other year, nor the Committee's decision with respect to the size, terms and
conditions of the Award(s) to be made to an employee in any year, require the
Committee to approve the award of the Unit(s) of the same size or with the same
terms and conditions to such employee in any other year or to any other employee
in any year. The Committee shall not be precluded from approving the award of a
Unit to any eligible employee solely because such employee may previously have
received an Award under the Plan.
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5. EMPLOYMENT. In the absence of any specific agreement to the
contrary, no Award of Units to a Participant under the Plan shall affect any
right of the Participant's employer to terminate the Participant's employment at
any time.
II. UNITS
1. UNITS. The Committee may from time to time in its discretion approve
the award of Units to employees who are eligible to receive an Award in
accordance with Section 4 of Part I of the Plan. An Award shall be evidenced by
an Agreement which shall contain such terms and conditions (which may include
vesting provisions and other restrictions not inconsistent with the Plan as the
Committee shall determine); provided, however, that an Award shall satisfy the
requirements set forth in Part II of the Plan.
2. GRANT. An Award may be granted by the Committee and shall be
effective upon the date approved by the Committee.
3. EXERCISE AND VESTING. Stock Appreciation Unit Awards may be
exercised by the Participant only at such time or times, and only upon such
terms and conditions, as shall be set forth in the Agreement relating to such
Stock Appreciation Unit Award. A Phantom Stock Unit Award will vest on the date
or dates as are set forth in the Agreement respecting such Phantom Stock Unit
Award.
4. AMOUNT OF PAYMENT. Upon the exercise of a Stock Appreciation Unit
Award, a Participant shall be entitled to receive the excess of the Fair Market
Value of a share of Stock over the Exercise Price of a Unit with respect to each
Unit exercised. Upon vesting of a Phantom Stock Unit, a participant shall be
entitled to receive an amount for such Unit equal to the Fair Market Value of a
share of Stock on the date the Unit vests.
5. FORM OF PAYMENT. Any amount which becomes payable upon exercise or
vesting of an Award under the Plan shall be paid entirely in cash. The Committee
may determine that amounts shall be payable in United States dollars or in local
currency, converted on such basis and at such conversion rate as the Committee
shall deem reasonable.
6. TERMINATION.
(a) GENERAL. A Stock Appreciation Unit Award shall terminate
as of the earlier of (i) the date of exercise of Award, to the extent
that it is exercised, or (ii) the expiration date specified in the
Agreement with respect to such Award. If an unexercised Stock
Appreciation Unit Award is otherwise exercisable on the date that it
expires, and if the Fair Market Value of Stock with
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respect to which it was granted, determined as of the date of such
expiration, exceeds the Exercise Price of the Units (under such Award
as set forth in the Stock Appreciation Unit Agreement), then the Award
shall automatically be deemed to have been exercised as of the date of
such expiration.
(b) TERMINATION OF EMPLOYMENT. If a Participant ceases to be
an employee of the Company or of a Subsidiary, for any reason other
than such Participant's Disability, Retirement or Death, then any Award
not theretofore exercised or vested, as applicable, shall immediately
be terminated and may not thereafter be exercised, and no payment shall
be made hereunder pursuant to such Award. Each Agreement shall provide
that the Committee may terminate any Award prior to the date on which
the Unit is exercised or vested, as applicable, if the Participant
engages during the life of the Award in employment or activities
contrary, in the opinion of the Committee, to the best interests of the
Company or of any Subsidiary.
(c) DISABILITY. If a Participant ceases to be an employee of
the Company or of a Subsidiary by reason of such Participant's
Disability, then the Participant's rights under the Award after the
date of such Disability shall be determined by the provisions of the
Agreement applicable to such Award.
(d) DEATH. If a Participant ceases to be an employee of the
Company or of a Subsidiary by reason of the Participant's death, the
participant's rights under the Award shall be determined by the
provisions of the Agreement applicable to such Award.
(e) RETIREMENT. If a Participant ceases to be an employee of
the Company or of a Subsidiary by reason of the Participant's
Retirement, any unvested Phantom Stock Units shall expire. The right to
exercise all or any portion of any Award of Stock Appreciation Units
shall be determined by the provisions of the Agreement applicable to
such Award.
7. NON-ASSIGNABILITY. An Award shall not be transferable (other than by
will or the laws of descent and distribution) and, during the Participant's
lifetime, shall be exercisable by, and payable to, only the Participant.
8. RESTRICTIONS. Awards shall be subject to the condition that if at
any time the Company shall determine in its discretion that the registration of
the Plan with any regulatory authority, the satisfaction of withholding tax or
other withholding liabilities under the law of any applicable jurisdiction or
the consent or approval of any regulatory body is necessary or desirable as a
condition of, or in connection with, the exercise or vesting of such Award,
then, in any such event, such exercise or vesting shall
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not be effective unless such registrations withholding, consent or approval
shall have been effected or obtained free of any conditions not acceptable to
the Company.
9. REPRICING PROHIBITED. There shall be no grant of a Stock
Appreciation Unit in exchange for a Participant's agreement to cancellation of a
Stock Appreciation Unit with a higher Exercise Price that was previously granted
to such Participant.
III. CANCELLATION AND RESCISSION
1. COMPETITION; CONFIDENTIAL INFORMATION.
(a) Unless a Stock Appreciation Right Agreement (any
such agreement being referred to herein as an "Agreement") specifies
otherwise, the Committee may
(i) cancel at any time any unexercised Stock
Appreciation Unit; or
(ii) rescind any exercise of a Stock Appreciation Unit
if the Participant is not in compliance with all other applicable
provisions of the Agreement or the Plan or if, prior to any such
exercise or within six months after such exercise, the Participant
(A) engages in a Competing Business, as such term is
defined in the Agreement; or
(B) solicits for employment, hires or offers employment
to, or discloses information to or otherwise aids or
assists any other person or entity other than the
Company in soliciting for employment, hiring or offering
employment to, any employee of the Company; or
(C) takes any action which is intended to harm the
Company or its reputation, which the Company reasonably
concludes could harm the Company or its reputation or
which the Company reasonably concludes could lead to
unwanted or unfavorable publicity to the Company; or
(D) discloses to anyone outside the Company, or uses in
other than the Company's business, any "confidential
information," as such term is defined in the Agreement.
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(b) Upon exercise of Stock Appreciation Unit, the
Participant shall certify on a form acceptable to the Committee that
the Participant is in compliance with the terms and conditions of
the Agreement and the Plan.
(c) The Company shall immediately notify the Participant
in writing of any cancellation of any unexercised Stock Appreciation
Unit. Following receipt of such notice, the Participant shall have
no further rights with respect to such Stock Appreciation Unit.
(d) The Company shall notify the Participant in writing
of any rescission of an exercise of a Stock Appreciation Unit within
one year after the activity referred to in Part III, Section 1(a).
Within ten days after receiving such a notice from the Company, the
Participant shall pay to the Company the excess of the Fair Market
Value of the Stock on the date of exercise of a Stock Appreciation
Unit over the Exercise Price for the Unit.
2. AGREEMENT BY PARTICIPANT REGARDING DEDUCTION. The Participant
shall agree and consent to a deduction from any amounts the Company or a
Subsidiary owes to the Participant from time to time (including amounts owed as
wages or other compensation, fringe benefits, or vacation pay, as well as any
other amounts owed to the Participant by the Company or a subsidiary), to the
extent of the amounts the Participant owes the Company under this Article III.
Whether or not the Company elects to make any set-off in whole or in part, if
the Company does not recover by means of set- off the full amount owed by the
Participant, calculated as set forth in this Article III, then the Participant
agrees to pay immediately the unpaid balance to the Company.
IV. MISCELLANEOUS
1. EFFECTIVE DATE. The Plan shall become effective on May 14, 1997.
2. DURATION OF PLAN. The Plan shall remain in effect until it is
terminated by the Company.
3. WITHHOLDING. The Company or any Subsidiary shall have the right
to deduct from the amount of any payment arising from the exercise or vesting of
an Award any taxes required by applicable law to be withheld from such amount.
4. UNFUNDED PLAN. The Plan shall be unfunded. Neither the Company
nor any Subsidiary nor the Committee shall be required to segregate any assets
that may at any time be represented by Awards under the Plan. Neither the
Company nor the Committee shall be deemed to be a trustee of any amounts to be
paid under the Plan. Any liability of the Company to any Participant with
respect to an Award shall be based solely upon any contractual obligations
created by the Plan or an Agreement, and no such
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obligation shall be deemed to be secured by any pledge or any encumbrance on any
property of the Company or of any Subsidiary.
5. CHANGES IN CAPITAL STRUCTURE. In the event that there is any
change in the capital structure of the Company, through merger, consolidation,
reorganization, recapitalization, spinoff or otherwise, or if there shall be any
dividend on the Stock, payable in such Stock, or if there shall be a stock split
or combination of shares, the number and/or the Exercise Price of the Units
shall be proportionately adjusted by the Board as it deems equitable, in its
absolute discretion, to prevent dilution or enlargement of the Participant's
Award. The issuance of Stock for consideration and the issuance of Stock rights
shall not be considered a change in the Company's capital structure. No
adjustment provided for in this section will result in fractional Units.
6. AMENDMENT OR TERMINATION. The Board may, by resolution, amend or
terminate the Plan at any time; provided, however, that the Board may not,
without the consent of the holder of the Unit, alter or impair any Award
previously granted under the Plan except as authorized herein.
Notwithstanding the foregoing, the Board may, by resolution, amend the Plan in
any way that it deems necessary or appropriate in order to make income with
respect to the Plan deductible for United States Federal income tax purposes
under Section 162(m) of the Code without regard to the foregoing proviso and any
such amendment shall be effective as of such date as is necessary to make such
income under the Plan so deductible.
7. CHANGE OF CONTROL. If while unexercised awards remain outstanding
under the Plan:
(a) Any individual, entity or group (within the meaning
of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) (a "Person") acquires
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 20% or more of either (i) the
then-outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (ii) the combined voting
power of the then- outstanding voting securities of the Company
entitled to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); provided, however, that,
for purposes of this Section 7, none of the following shall
constitute a Change of Control: (A) any acquisition directly from
the Company of 30% or less of Outstanding Company Common Stock or
Outstanding Company Voting Securities provided that at least a
majority of the members of the board of directors of the Company
following such acquisition were members of the Incumbent Board at
the time of the Board's approval of such acquisition, (B) any
acquisition by the Company, (C) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the
Company or any affiliated company, or (D) any acquisition by the
Company which, by reducing the number of shares of Outstanding
Company Common Stock or Outstanding Company Voting Securities,
increases the proportionate number of shares of Outstanding Company
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Common Stock or Outstanding Company Voting Securities beneficially
owned by any Person to 20% or more of the Outstanding Company Common
Stock or Outstanding Company Voting Securities; provided, however,
that, if such Person shall thereafter become the beneficial owner of
any additional shares of Outstanding Company Common Stock or
Outstanding Company Voting Securities and beneficially owns 20% or
more of either the Outstanding Company Common Stock or the
Outstanding Company Voting Securities, then such additional
acquisition shall constitute a Change of Control; or
(b) Individuals who, as of the date hereof, constitute
the Board (the "Incumbent Board") cease for any reason to constitute
at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the date hereof whose
election, or nomination for election by the Company's stockholders,
was approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for
this purpose, any such individual whose initial assumption of office
occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board;
(c) A reorganization, merger, consolidation or sale or
other disposition of all or substantially all of the assets of the
Company (a "Business Combination") is consummated, in each case,
unless, immediately following such Business Combination, (i), more
than 50%, respectively, of the then-outstanding shares of common
stock and the combined voting power of the then-outstanding voting
securities entitled to vote generally in the election of directors,
as the case may be, of (x) the corporation resulting from such
Business Combination or (y) a corporation that, as a result of such
transaction, owns the Company or all or substantially all of the
Company's assets either directly or through one or more
subsidiaries, is represented by the Outstanding Company Common Stock
and the Outstanding Company Voting Securities (or, if applicable, is
represented by shares into which Outstanding Company Common Stock or
Outstanding Company Voting Securities were converted pursuant to
such Business Combination) in substantially the same proportions as
their ownership immediately prior to such Business Combination of
the Outstanding Company Common Stock and the Outstanding Company
Voting Securities, as the case may be, (ii) no Person (excluding any
corporation resulting from such Business Combination or any employee
benefit plan (or related trust) of the Company or such corporation
resulting from such Business Combination) beneficially owns,
directly or indirectly, 20% or more of, respectively, the
then-outstanding shares of common stock of the corporation resulting
from such Business Combination or the combined voting power of the
then-outstanding voting securities of such corporation, except to
the extent that such ownership existed prior to the Business
Combination, and (iii) at least a majority of the members of
the board of directors of the corporation resulting from such
Business Combination were members of
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the Incumbent Board at the time of the execution of the initial
agreement or of the action of the Board providing for such Business
Combination; or
(d) The stockholders of the Company approve of a
complete liquidation or dissolution of the Company.
then from and after the date of the first of the foregoing events to occur, all
outstanding Stock Appreciation Unit Awards held by active employees on such date
shall be exercised in full, whether or not otherwise exercisable, and all
outstanding Phantom Stock Unit Awards held by active employees on such date
shall vest in full, and shall be deemed fully payable.
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