As filed with the Securities and Exchange Commission on November 20, 1997.
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________
Pacific Sunwear of California, Inc.
(Exact name of registrant as specified in its charter)
___________________
California 95-3759463
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5037 East Hunter Avenue
Anaheim, California 92807
(714) 693-8066
(Address of principal executive offices)
PACIFIC SUNWEAR OF CALIFORNIA, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Greg H. Weaver, Chief Executive Officer
Pacific Sunwear of California, Inc.
5037 East Hunter Avenue
Anaheim, California 92807
(Name and address of agent for service)
Telephone number, including area code, of agent for service:
(714) 693-8066
___________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
securities to be price offering registration
to be registered registered per unit price fee
Common Stock, par 120,000<1> $30.3125<2> $3,637,500<2> $1,074<2>
value $0.01 per share shares
_______________
<FN>
<F1> This Registration Statement covers, in addition to the
number of shares of Common Stock stated above, options and
other rights to purchase or acquire the shares of Common
Stock covered by the Prospectus and, pursuant to Rule
416(c) under the Securities Act of 1933, an indeterminate
number of shares which by reason of certain events
specified in the Plan may become subject to the Plan.
<F2> Pursuant to Rule 457(h), the maximum offering price, per
share and in the aggregate, and the registration fee were
calculated based upon the average of the high and low
prices of the Common Stock on November 14, 1997 as reported
on the Nasdaq National Market System.
The Exhibit Index for this Registration Statement is at
page S-3.
</FN>
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in
Part I of Form S-8 (plan information and registrant information)
will be sent or given to optionees as specified by Rule 428(b)(1)
of the Securities Act of 1933, as amended (the "Securities Act").
Such documents need not be filed with the Securities and Exchange
Commission (the "Commission") either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to
Rule 424 of the Securities Act. These documents, which include the
statement of availability required by Item 2 of Form S-8, and the
documents incorporated by reference in this Registration Statement
pursuant to Item 3 of Form S-8 (Part II hereof), taken together,
constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act.
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of Pacific Sunwear of California,
Inc. (the "Company") filed with the Commission are incorporated
herein by reference:
(a) The Company's Annual Report on Form 10-K for the
Company's fiscal year ended February 2, 1997;
(b) The Company's Quarterly Reports on Forms 10-Q for
the Company's quarterly periods ended August 3,
1997 and May 4, 1997;
(c) The Company's Current Reports on Forms 8-K dated
September 4, 1997 and June 18, 1997; and
(d) The description of the Common Stock contained in
the Company's Registration Statement on Form 8-A,
filed with the Commission on February 24, 1993.
All documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), prior to the filing
of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities
then remaining unsold shall be deemed to be incorporated by
reference into the prospectus and to be a part hereof from the date
of filing of such documents. Any statement contained herein or in
a document, all or a portion of which is incorporated or deemed to
be incorporated by reference herein, shall be deemed to be modified
or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not
be deemed, except as so modified or amended, to constitute a part
of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
The Common Stock is registered pursuant to Section 12 of
the Exchange Act. Therefore, the description of the securities is
omitted.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Articles of Incorporation provide that the
liability of the Company's directors for monetary damages shall be
eliminated to the fullest extent permitted under California law.
The Company's Bylaws include a provision that eliminates, to the
fullest extent permitted by California law, the personal liability
of its directors and officers for monetary damages in any legal
proceeding based on their action or inaction as a director or
officer, subject to certain limitations for actions initiated by
the director or officer, settlements not approved by the Company,
losses covered by the directors' and officers' liability insurance
policy maintained by the Company, and judgments for an accounting
of profits pursuant to Section 16(b) of the Exchange Act and
similar laws.
The General Corporations Law of California (the
"Corporations Law") (i) eliminates the liability of directors and
officers for monetary damages in an action brought by a shareholder
in the right of the Company (referred to herein as a "derivative
action") or by the Company for breach of duty to the Company and
its shareholders and (ii) authorizes the Company to indemnify
directors and officers for monetary damages for all acts or
omissions committed by them in their respective capacities. Both
the Corporations Law and the Bylaws of the Company, however,
prohibit indemnification for (a) acts or omissions that involve
intentional misconduct or knowing and culpable violation of law,
(b) acts or omissions that a director or officer believes to be
contrary to the best interests of the Company or its shareholders
or that involve the absence of good faith on the part of a director
or officer seeking indemnification, (c) any transaction from which
a director or officer derives an improper personal benefit, (d)
acts or omissions that show a reckless disregard for the director's
or officer's duty to the Company or its shareholders in
circumstances in which such person was aware, or should have been
aware, in the ordinary course of performing his or her other
duties, of a risk of serious injury to the Company or its
shareholders, (e) acts or omissions that constitute an unexcused
pattern of inattention that amounts to an abdication of the
director's or officer's duty to the Company or its shareholders and
(f) liabilities arising under Section 310 (contracts in which a
director has material financial interest) and 316 (certain unlawful
dividends, distributions, loans, and guarantees) of the
Corporations Law. In addition, the Company may not indemnify
directors and officers in circumstances in which indemnification is
expressly prohibited by Section 317 of the Corporations Law.
The Company has entered into indemnification agreements
with its directors and executive officers that require the Company
to indemnify such directors and officers to the fullest extent
permitted by applicable provisions of the Corporations Law,
provided that any settlement of a third party action against a
director or officer is approved by the Company, and subject to
limitations for actions initiated by the director or officer,
penalties paid by insurance, and violations of Section 16(b) of the
Exchange Act and similar laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
See the attached Exhibit Index on page S-3.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus
required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any
facts or events arising after the effective date of
this Registration Statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth in
this Registration Statement; and
(iii) To include any material
information with respect to the plan of
distribution not previously disclosed in this
Registration Statement or any material change to
such information in this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant with or
furnished to the Commission pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference
in this Registration Statement;
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions
described in Item 6 above, or otherwise, the registrant has been
advised that in the opinion of the Commission such indemnification
is against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the
registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of
Anaheim, State of California, on November 19, 1997.
By:__/s/ Greg H. Weaver___________
Greg H. Weaver, President and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and
appoints Greg H. Weaver and Carl W. Womack, or either of them, his
or her true and lawful attorney-in-fact and agent, with full powers
of substitution and resubstitution, for him or her and in his or
her name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this
Registration Statement, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the
Commission, granting unto said attorney-in-fact and agents, full
power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorney-in-
fact and agent, or either of them or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
Signature Title Date
/s/ Greg H. Weaver President, Chief Executive November 19, 1997
Greg H. Weaver Officer and Director
/s/ Carl W. Womack Senior Vice President, November 19, 1997
Carl W. Womack Chief Financial Officer and
Secretary (Principal Financial
and Accounting Officer)
/s/ Julius Jensen III Director November 19, 1997
Julius Jensen III
/s/ Pearson Cummin III Director November 19, 1997
Pearson Cummin III
/s/ Peter L. Harris Director November 19, 1997
Peter L. Harris
/s/ James B. McCurry Director November 19, 1997
James B. McCurry
/s/ Sally Frame Kasaks Director November 19, 1997
Sally Frame Kasaks
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
4.1 Pacific Sunwear of California, Inc. Employee
Stock Purchase Plan.
4.2 Form of Pacific Sunwear of California, Inc.
Employee Stock Purchase Plan Subscription
Agreement.
5. Opinion of O'Melveny & Myers LLP (opinion
re legality).
23.1 Consent of Deloitte & Touche LLP (consent of
independent auditors).
23.2 Consent of Counsel (included in Exhibit 5).
24. Power of Attorney (included in this
Registration Statement under "Signatures").
<PAGE>
PACIFIC SUNWEAR OF CALIFORNIA, INC.
EMPLOYEE STOCK PURCHASE PLAN
<PAGE>
TABLE OF CONTENTS
Page
1. PURPOSE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 1
3. ELIGIBILITY. . . . . . . . . . . . . . . . . . . . . . . . . . 4
4. STOCK SUBJECT TO THIS PLAN; SHARE LIMITATIONS. . . . . . . . . 4
5. OFFERING PERIODS . . . . . . . . . . . . . . . . . . . . . . . 4
6. PARTICIPATION. . . . . . . . . . . . . . . . . . . . . . . . . 4
7. METHOD OF PAYMENT OF CONTRIBUTIONS . . . . . . . . . . . . . . 4
8. GRANT OF OPTION. . . . . . . . . . . . . . . . . . . . . . . . 5
9. EXERCISE OF OPTION . . . . . . . . . . . . . . . . . . . . . . 6
10. DELIVERY . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
11. TERMINATION OF EMPLOYMENT; CHANGE IN ELIGIBLE STATUS . . . . . 6
12. ADMINISTRATION . . . . . . . . . . . . . . . . . . . . . . . . 7
13. DESIGNATION OF BENEFICIARY . . . . . . . . . . . . . . . . . . 8
14. TRANSFERABILITY. . . . . . . . . . . . . . . . . . . . . . . . 8
15. USE OF FUNDS; INTEREST . . . . . . . . . . . . . . . . . . . . 9
16. REPORTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
17. ADJUSTMENTS OF AND CHANGES IN THE STOCK. . . . . . . . . . . . . 9
18. POSSIBLE EARLY TERMINATION OF PLAN AND OPTIONS . . . . . . . . . 9
19. TERM OF PLAN; AMENDMENT OR TERMINATION . . . . . . . . . . . . . 10
20. NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
21. CONDITIONS UPON ISSUANCE OF SHARES . . . . . . . . . . . . . . . 10
22. PLAN CONSTRUCTION. . . . . . . . . . . . . . . . . . . . . . . . 11
23. EMPLOYEES' RIGHTS. . . . . . . . . . . . . . . . . . . . . . . . 11
24. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . 11
<PAGE>
PACIFIC SUNWEAR OF CALIFORNIA, INC.
EMPLOYEE STOCK PURCHASE PLAN
The following constitute the provisions of the Pacific Sunwear
of California, Inc. Employee Stock Purchase Plan (this "Plan").
1. PURPOSE
The purpose of this Plan is to provide Eligible Employees
with an incentive to advance the best interests of the
Corporation (and those Subsidiaries which may be designated
by the Committee as "Participating Corporations") by
providing a method whereby they may voluntarily purchase
Common Stock at a favorable price and upon favorable terms.
2. DEFINITIONS
Capitalized terms used herein which are not otherwise defined
shall have the following meanings.
"Account" shall mean the bookkeeping account maintained
by the Corporation, or by a recordkeeper on behalf of the
Corporation, for a Participant pursuant to Section 7(a).
"Board" shall mean the Board of Directors of the
Corporation.
"Change in Control" shall mean any of the following:
a. Approval by the shareholders of the Corporation
of the dissolution or liquidation of the Corporation;
b. Approval by the shareholders of the Corporation
of an agreement to merge or consolidate, or otherwise
reorganize, with or into one or more entities other than
Subsidiaries, 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 former
shareholders of the Corporation;
c. Approval by the shareholders of the Corporation
of the sale of substantially all of the Corporation's
business assets to a person or entity that is not a
Subsidiary.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Committee" shall mean the committee appointed by the
Board to administer this Plan pursuant to Section 12.
"Common Stock" shall mean the common stock of the
Corporation.
"Company" shall mean the Corporation and its
Subsidiaries.
"Compensation" shall mean an Eligible Employee's regular
earnings, overtime pay, sick pay, shift differential, shift
premium, vacation pay, incentive compensation, commissions
and bonuses. Compensation also includes any amounts
contributed as salary reduction contributions to a plan
qualifying under Section 401(k), 125 or 129 of the Code. Any
other form of remuneration is excluded from Compensation,
including (but not limited to) the following: prizes,
awards, housing allowances, stock option exercises, stock
appreciation rights, restricted stock exercises, performance
awards, auto allowances, tuition reimbursement and other
forms of imputed income. Notwithstanding the foregoing,
Compensation shall not include any amounts deferred under or
paid from the Corporation's Executive Deferred Compensation
Plan.
"Contributions" shall mean all bookkeeping amounts
credited to the Account of a Participant pursuant to
Section 7(a).
"Corporation" shall mean Pacific Sunwear of California,
Inc., a California corporation.
"Eligible Employee" shall mean any employee of the
Corporation, or of any Subsidiary which has been designated
in writing by the Committee as a "Participating Corporation"
(including any Subsidiaries which have become such after the
date that this Plan is approved by shareholders).
Notwithstanding the foregoing, "Eligible Employee" shall not
include any employee who (i) has not as of the Grant Date
completed at least three months of continuous full-time
employment with the Company, (ii) whose customary employment
is for 20 hours per week or less; or (iii) whose customary
employment is for not more than five months in a calendar
year. In addition, no Officer shall be an Eligible Employee.
"Effective Date" shall mean January 1, 1998.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
"Exercise Date" shall mean, with respect to an Offering
Period, the last day of that Offering Period.
"Fair Market Value" shall mean the closing price of a
Share on The New York Stock Exchange on such date (or, in the
event that the Common Stock is not traded on such date, on
the immediately preceding trading date), as reported in The
Wall Street Journal or, in the event the Common Stock is not
listed on The New York Stock Exchange, the "Fair Market
Value" shall be the closing price of the Common Stock for
such date (or, in the event that the Common Stock is not
traded on such date, on the immediately preceding trading
date), as reported by the National Association of Securities
Dealers Automated Quotation ("NASDAQ") or, if such price is
not reported, the mean of the bid and asked prices per Share
as reported by NASDAQ or, if such prices are not so listed or
reported, as determined by the Committee (or its delegate),
in its discretion.
"Grant Date" shall mean the first day of each Offering
Period.
"Offering Period" shall mean the six-consecutive month
periods commencing on each January 1 and July 1.
"Officer" shall mean (i) any individual who is a named
officer of the Corporation pursuant to the Corporation's By-
Laws, and (ii) any other individual who the Committee
determines, in its sole discretion, to be (A) a highly
compensated employee (within the meaning of Section 414(q) of
the Code) and (B) an officer of the Company for purposes of
this Plan.
"Option" shall mean the stock option to acquire Shares
granted to a Participant pursuant to Section 8.
"Option Price" shall mean the per share exercise price
of an Option as determined in accordance with Section 8(b).
"Participant" shall mean an Eligible Employee who has
elected to participate in this Plan and who has filed a valid
and effective Subscription Agreement to make Contributions
pursuant to Section 6.
"Plan" shall mean this Pacific Sunwear of California,
Inc. Employee Stock Purchase Plan, as amended from time to
time.
"Rule 16b-3" shall mean Rule 16b-3 promulgated under
Section 16.
"Section 16" shall mean Section 16 of the Exchange Act.
"Share" shall mean a share of Common Stock.
"Subscription Agreement" shall mean the written agreement
filed by an Eligible Employee with the Corporation pursuant
to Section 6 to participate in this Plan.
"Subsidiary" shall mean any corporation in an unbroken
chain of corporations (beginning with the Corporation) in
which each corporation (other than the last corporation) owns
stock possessing 50% or more of the total combined voting
power of all classes of stock in one or more of the other
corporations in the chain.
3. ELIGIBILITY
Any person employed as an Eligible Employee as of a Grant
Date shall be eligible to participate in this Plan during the
Offering Period in which such Grant Date occurs, subject to
the Eligible Employee satisfying the requirements of
Section 6.
4. STOCK SUBJECT TO THIS PLAN; SHARE LIMITATIONS
The total number of Shares to be made available under this
Plan is 120,000 authorized and unissued or treasury shares of
Common Stock, or Shares repurchased on the open market,
subject to adjustments pursuant to Section 17. In the event
that all of the Shares made available under this Plan are
subscribed prior to the expiration of this Plan, this Plan
may be terminated in accordance with Section 19.
5. OFFERING PERIODS
During the term of this Plan, the Corporation will offer
Options to purchase Shares to all Participants during each
Offering Period. Each Option shall become effective on the
Grant Date. The term of each Option shall be six months and
shall end on the Exercise Date. The first Offering Period
shall commence on or after the Effective Date. Offering
Periods shall continue until this Plan is terminated in
accordance with Section 18 or 19, or, if earlier, until no
Shares remain available for Options pursuant to Section 4.
6. PARTICIPATION
An Eligible Employee may become a participant in this Plan by
completing a Subscription Agreement on a form approved by and
in a manner prescribed by the Committee (or its delegate).
To become effective, a Subscription Agreement must be filed
with the Corporation prior to the start of the Offering
Period with respect to which it is to become effective and
must set forth the percentage of the Eligible Employee's
Compensation (which shall be a whole percentage point not
less than 1% and not more than 10%) to be credited to the
Participant's Account as Contributions each pay period.
Subscription Agreements shall contain the Eligible Employee's
authorization and consent to the Corporation's withholding
from his or her Compensation the amount of his or her
Contributions. Subscription Agreements shall remain valid
for all Offering Periods until (i) an Eligible Employee's
participation terminates pursuant to the terms hereof, or
(ii) until a new Subscription Agreement becomes effective.
7. METHOD OF PAYMENT OF CONTRIBUTIONS
(a) The Corporation shall maintain on its books, or cause to
be maintained by a recordkeeper, an Account in the name
of each Participant. The percentage of Compensation
elected to be applied as Contributions by a Participant
shall be deducted from such Participant's Compensation
on each payday during the period for payroll deductions
set forth below and such payroll deductions shall be
credited to that Participant's Account as soon as
administratively practicable after such date. A
Participant may not make any additional payments to his
or her Account. A Participant's Account shall be
reduced by any amounts used to pay the Option Price of
Shares acquired, or by any other amounts distributed
pursuant to the terms hereof.
(b) Payroll deductions with respect to an Offering Period
shall commence as of the first day of the payroll period
which coincides with or immediately follows the
applicable Grant Date and shall end on the last day of
the payroll period which coincides with or immediately
precedes the applicable Exercise Date, unless sooner
terminated by the Participant as provided in this
Section or until his or her participation terminates
pursuant to Section 11.
(c) A Participant may terminate his or her Contributions
during an Offering Period by completing and filing with
the Corporation, in such form and on such terms as the
Committee (or its delegate) may prescribe, a written
withdrawal form which shall be signed by the
Participant. Such termination shall be effective as
soon as administratively practicable after its receipt
by the Corporation.
(d) A Participant may discontinue or otherwise change the
level of his or her Contributions (within Plan limits)
effective as of the next Grant Date by completing and
filing with the Corporation, on such terms as the
Committee (or its delegate) may prescribe, a new
Subscription Agreement.
8. GRANT OF OPTION
(a) On each Grant Date, each Eligible Employee who is a
participant during that Offering Period shall be granted
an Option to purchase a number of Shares. The Option
shall be exercised on the Exercise Date. The number of
Shares subject to the Option shall be determined by
dividing the Participant's Account balance as of the
applicable Exercise Date by the Option Price.
(b) The Option Price per Share of the Shares subject to an
Option shall be the lesser of: (i) 90% of the Fair
Market Value of a Share on the applicable Grant Date; or
(ii) 90% of the Fair Market Value of a Share on the
applicable Exercise Date.
(c) Notwithstanding anything else contained herein, a person
who is otherwise an Eligible Employee shall not be
granted any Option or other right to purchase Shares
under this Plan to the extent (i) it would, if
exercised, cause the person to own "stock" (as such term
is defined for purposes of Section 423(b)(3) of the
Code) possessing 5% or more of the total combined voting
power or value of all classes of stock of the
Corporation, or any Subsidiary, or (ii) such Option
causes such individual to have rights to purchase stock
under this Plan and any other plan of the Company
qualified under Section 423 of the Code which accrue at
a rate which exceeds $25,000 of the fair market value of
the stock of the Corporation or of a Subsidiary
(determined at the time the right to purchase such Stock
is granted) for each calendar year in which such right
is outstanding. For this purpose a right to purchase
Shares accrues when it first become exercisable during
the calendar year. In determining whether the stock
ownership of an Eligible Employee equals or exceeds the
5% limit set forth above, the rules of Section 424(d) of
the Code (relating to attribution of stock ownership)
shall apply.
9. EXERCISE OF OPTION
Unless a Participant's Plan participation is terminated as
provided in Section 11, his or her Option for the purchase of
Shares shall be exercised automatically on the Exercise Date
for that Offering Period, without any further action on the
Participant's part, and the maximum number of whole Shares
subject to such Option shall be purchased at the Option Price
with the balance of such Participant's Account. If any
amount (which is not sufficient to purchase a whole Share)
remains in a Participant's Account after the exercise of his
or her Option on the Exercise Date: (i) such amount shall be
credited to such Participant's Account for the next Offering
Period, if he or she is then a Participant; or (ii) if such
Participant is not a Participant in the next Offering Period,
or if the Committee so elects, such amount shall be refunded
to such Participant as soon as administratively practicable
after such date.
10. DELIVERY
As soon as administratively practicable after the Exercise
Date, the Corporation shall deliver to each Participant a
certificate representing the Shares purchased upon exercise
of his or her Option. The Corporation may make available an
alternative arrangement for delivery of Shares to a
recordkeeping service. The Committee (or its delegate), in
its discretion, may either require or permit the Participant
to elect that such certificates be delivered to such
recordkeeping service. In the event the Corporation is
required to obtain from any commission or agency authority to
issue any such certificate, the Corporation will seek to
obtain such authority. Inability of the Corporation to
obtain from any such commission or agency authority which
counsel for the Corporation deems necessary for the lawful
issuance of any such certificate shall relieve the
Corporation from liability to any Participant except to
return to the Participant the amount of the balance in his or
her Account.
11. TERMINATION OF EMPLOYMENT; CHANGE IN ELIGIBLE STATUS
(a) Upon a Participant's termination from employment with
the Company for any reason or in the event that a
Participant is no longer an Eligible Employee or if the
Participant elects to terminate Contributions pursuant
to Section 7(c), at any time prior to the last day of an
Offering Period in which he or she participates, such
Participant's Account shall be paid to him or her or in
cash, or, in the event of such Participant's death, paid
to the person or persons entitled thereto under
Section 13, and such Participant's Option and
participation in the Plan shall be automatically
terminated.
(b) A Participant's termination from Plan participation
precludes the Participant from again participating in
this Plan during that Offering Period. However, such
termination shall not have any effect upon his or her
ability to participate in any succeeding Offering
Period, provided that the applicable eligibility and
participation requirements are again then met. A
Participant's termination from Plan participation shall
be deemed to be a revocation of that Participant's
Subscription Agreement and such Participant must file a
new Subscription Agreement to resume Plan participation
in any succeeding Offering Period.
12. ADMINISTRATION
(a) The Board shall appoint the Committee, which shall be
composed of not less than two members of the Board.
Each member of the Committee, in respect of any
transaction at a time when an affected Participant may
be subject to Section 16 of the Exchange Act, shall be
a "non-employee director" within the meaning of Rule
16b-3 promulgated under Section 16. The Board may, at
any time, increase or decrease the number of members of
the Committee, may remove from membership on the
Committee all or any portion of its members, and may
appoint such person or persons as it desires to fill any
vacancy existing on the Committee, whether caused by
removal, resignation, or otherwise. The Board may also,
at any time, assume or change the administration of this
Plan.
(b) The Committee shall supervise and administer this Plan
and shall have full power and discretion to adopt, amend
and rescind any rules deemed desirable and appropriate
for the administration of this Plan and not inconsistent
with the terms of this Plan, and to make all other
determinations necessary or advisable for the
administration of this Plan. The Committee shall act by
majority vote or by unanimous written consent. No
member of the Committee shall be entitled to act on or
decide any matter relating solely to himself or herself
or any of his or her rights or benefits under this Plan.
The Committee shall have full power and discretionary
authority to construe and interpret the terms and
conditions of this Plan, which construction or
interpretation shall be final and binding on all parties
including the Corporation, Participants and
beneficiaries. The Committee may delegate ministerial
non-discretionary functions to third parties, including
officers of the Corporation.
(c) Any action taken by, or inaction of, the Corporation,
the Board or the Committee relating to this Plan shall
be within the absolute discretion of that entity or
body. No member of the Board or Committee, or officer
of the Corporation shall be liable for any such action
or inaction.
13. DESIGNATION OF BENEFICIARY
(a) A Participant may file, in a manner prescribed by the
Committee (or its delegate), a written designation of a
beneficiary who is to receive any Shares or cash from
such Participant's Account under this Plan in the event
of such Participant's death. If a Participant's death
occurs subsequent to the end of an Offering Period but
prior to the delivery to him or her of any Shares
deliverable under the terms of this Plan, such Shares
and any remaining balance of such Participant's Account
shall be paid to such beneficiary (or such other person
as set forth in Section 13(b)) as soon as
administratively practicable after the Corporation
receives notice of such Participant's death and any
outstanding unexercised Option shall terminate. If a
Participant's death occurs at any other time, the
balance of such Participant's Account shall be paid to
such beneficiary (or such other person as set forth in
Section 13(b)) in cash as soon as administratively
practicable after the Corporation receives notice of
such Participant's death and such Participant's Option
shall terminate. If a Participant is married and the
designated beneficiary is not his or her spouse, spousal
consent shall be required for such designation to be
effective.
(b) Beneficiary designations may be changed by the
Participant (and his or her spouse, if required) at any
time on forms provided and in the manner prescribed by
the Committee (or its delegate). If a Participant dies
with no validly designated beneficiary under this Plan
who is living at the time of such Participant's death,
the Corporation shall deliver all Shares and/or cash
payable pursuant to the terms hereof to the executor or
administrator of the estate of the Participant, or if no
such executor or administrator has been appointed, the
Corporation, in its discretion, may deliver such Shares
and/or cash to the spouse or to any one or more
dependents or relatives of the Participant, or if no
spouse, dependent or relative is known to the
Corporation, then to such other person as the
Corporation may designate.
14. TRANSFERABILITY
Neither Contributions credited to a Participant's Account nor
any Options or rights with respect to the exercise of Options
or right to receive Shares under this Plan may be
anticipated, alienated, encumbered, assigned, transferred,
pledged or otherwise disposed of in any way (other than by
will, the laws of descent and distribution, or as provided in
Section 13) by the Participant. Any such attempt at
anticipation, alienation, encumbrance, assignment, transfer,
pledge or other disposition shall be without effect and all
amounts shall be paid and all shares shall be delivered in
accordance with the provisions of this Plan. Amounts payable
or Shares deliverable pursuant to this Plan shall be paid or
delivered only to the Participant or, in the event of the
Participant's death, to the Participant's beneficiary
pursuant to Section 13.
15. USE OF FUNDS; INTEREST
All Contributions received or held by the Corporation under
this Plan will be included in the general assets of the
Corporation and may be used for any corporate purpose. No
interest will be paid to any Participant or credited to his
or her Account under this Plan.
16. REPORTS
Statements shall be provided to Participants as soon as
administratively practicable following each Exercise Date.
Each Participant's statement shall set forth, as of such
Exercise Date, that Participant's Account balance immediately
prior to the exercise of his or her Option, the Fair Market
Value of a Share, the Option Price, the number of whole
Shares purchased and his or her remaining Account balance, if
any.
17. ADJUSTMENTS OF AND CHANGES IN THE STOCK
In the event that the Shares shall be changed into or
exchanged for a different number or kind of shares of stock
or other securities of the Corporation or of another
corporation (whether by reason of merger, consolidation,
recapitalization, stock split, combination of shares, or
otherwise), or if the number of Shares shall be increased
through a stock split or the payment of a stock dividend,
then there shall be substituted for or added to each Share
theretofore reserved for sale under this Plan, the number and
kind of shares of stock or other securities into which each
outstanding Share shall be so changed, or for which each such
Share shall be exchanged, or to which each such Share is
entitled, as the case may be, or the number or kind of
securities which may be sold under this Plan and the purchase
price per Share shall be appropriately adjusted consistent
with such change in such manner as the Committee (or its
delegate) may deem equitable to prevent substantial dilution
or enlargement of rights granted to, or available for,
Eligible Employees under this Plan.
18. POSSIBLE EARLY TERMINATION OF PLAN AND OPTIONS
Upon a dissolution of the Corporation, an event described in
Section 17 that the Corporation does not survive, or the
occurrence of a Change in Control, the Plan and, if prior to
the last day of an Offering Period, any outstanding Option
granted with respect to that Offering Period shall terminate,
subject to any provision that has been expressly made by the
Committee through a plan or reorganization approved by the
Board or otherwise for the survival, substitution,
assumption, exchange or other settlement of the Plan and
Options. In the event a Participant's Option is terminated
pursuant to this Section 18, such Participant's Account shall
be paid to him or her in cash without interest.
19. TERM OF PLAN; AMENDMENT OR TERMINATION
(a) This Plan shall become effective as of the Effective
Date. No new Offering Periods shall commence on or
after the tenth anniversary of the Effective Date and
this Plan shall terminate on such date unless sooner
terminated pursuant to Section 18 or this Section 19.
(b) The Board may amend, modify or terminate this Plan at
any time without notice. Shareholder approval for any
amendment or modification shall not be required, except
to the extent required by Section 423 of the Code or
other applicable law, or deemed necessary or advisable
by the Board. No amendment, modification, or
termination pursuant to this Section 18(b) shall,
without written consent of the Participant, affect in
any manner materially adverse to the Participant any
rights or benefits of such Participant or obligations of
the Corporation under any Option granted under this Plan
prior to the effective date of such change. Changes
contemplated by Section 17 shall not be deemed to
constitute changes or amendments requiring Participant
consent. Notwithstanding the foregoing, the Committee
shall have the right to designate from time to time the
Subsidiaries whose employees may be eligible to
participate in this Plan and such designation shall not
constitute any amendment to this Plan requiring
shareholder approval.
20. NOTICES
All notices or other communications by a Participant to the
Corporation contemplated by this Plan shall be deemed to have
been duly given when received in the form and manner
specified by the Committee (or its delegate) at the location,
or by the person, designated by the Committee (or its
delegate) for that purpose.
21. CONDITIONS UPON ISSUANCE OF SHARES
Shares shall not be issued with respect to an Option unless
the exercise of such Option and the issuance and delivery of
such Shares complies with all applicable provisions of law,
domestic or foreign, including, without limitation, the
Securities Act of 1933, as amended, the Exchange Act, any
applicable state securities laws, the rules and regulations
promulgated thereunder, and the requirements of any stock
exchange upon which the Shares may then be listed.
As a condition precedent to the exercise of any Option, if,
in the opinion of counsel for the Corporation such a
representation is required under applicable law, the
Corporation may require any person exercising such Option to
represent and warrant that the Shares subject thereto are
being acquired only for investment and without any present
intention to sell or distribute such Shares.
22. PLAN CONSTRUCTION
(a) It is the intent of the Corporation that transactions in
and affecting Options in the case of Participants who
are or may be subject to the prohibitions of Section 16
satisfy any then applicable requirements of Rule 16b-3
so that such persons (unless they otherwise agree) will
be entitled to the exemptive relief of Rule 16b-3 in
respect of those transactions and will not be subject to
avoidable liability thereunder. Accordingly, this Plan
shall be deemed to contain and the Shares issued upon
exercise thereof shall be subject to, such additional
conditions and restrictions as may be required by Rule
16b-3 to qualify for the maximum exemption from
Section 16 with respect to Plan transactions.
(b) This Plan and Options are intended to qualify under
Section 423 of the Code.
(c) If any provision of this Plan or of any Option would
otherwise frustrate or conflict with the intents
expressed above, that provision to the extent possible
shall be interpreted so as to avoid such conflict. If
the conflict remains irreconcilable, the Committee may
disregard the provision if it concludes that to do so
furthers the interest of the Corporation and is
consistent with the purposes of this Plan as to such
persons in the circumstances.
23. EMPLOYEES' RIGHTS
Nothing in this Plan (or in any agreement related to this
Plan) shall confer upon any Eligible Employee or Participant
any right to continue in the service or employ of the Company
or constitute any contract or agreement of service or
employment, or interfere in any way with the right of the
Company to reduce such person's compensation or other
benefits or to terminate the services or employment or such
Eligible Employee or Participant, with or without cause, but
nothing contained in this Plan or any document related hereto
shall affect any other contractual right of any Eligible
Employee or Participant. No Participant shall have any
rights as a shareholder until a certificate for Shares has
been issued in the Participant's name following exercise of
his or her Option. No adjustment will be made for dividends
or other rights as a shareholder for which a record date is
prior to the issuance of such Share certificate. Nothing in
this Plan shall be deemed to create any fiduciary
relationship between the Corporation and any Participant.
24. MISCELLANEOUS
(a) This Plan and related documents shall be governed by,
and construed in accordance with, the laws of the State
of California. If any provision shall be held by a
court of competent jurisdiction to be invalid and
unenforceable, the remaining provisions of this Plan
shall continue to be fully effective.
(b) Captions and headings are given to the sections of this
Plan solely as a convenience to facilitate reference.
Such captions and headings shall not be deemed in any
way material or relevant to the construction of
interpretation of this Plan or any provision hereof.
(c) The adoption of this Plan shall not affect any other
compensation or incentive plans in effect for the
Company. Nothing in this Plan shall be construed to
limit the right of the Company (i) to establish any
other forms of incentives or compensation for employees
of the Company, or (ii) to grant or assume options
(outside the scope of and in addition to those
contemplated by this Plan) in connection with any proper
corporate purpose.
25. EFFECTIVE DATE
This Plan shall be effective on the Effective Date, subject,
however, to the approval of this Plan by the shareholders of the
Company within twelve months after the date on which the Board
approved this Plan. Notwithstanding anything else contained herein
to the contrary, no Shares shall be issued or delivered under this
Plan until such shareholder approval is obtained and, if such
shareholder approval is not obtained within such 12-month period of
time, all Contributions credited to a Participant's Account
hereunder shall be refunded to such Participant (without interest)
as soon as practicable after the end of such 12-month period.
<PAGE>
PACIFIC SUNWEAR OF CALIFORNIA, INC.
EMPLOYEE STOCK PURCHASE PLAN
SUBSCRIPTION AGREEMENT
Attached to this Subscription Agreement as Exhibits A and B
are copies of the Pacific Sunwear of California, Inc. Employee
Stock Purchase Plan (the "Plan") and related Prospectus. The Plan
is voluntary and provides Eligible Employees the opportunity to
purchase shares of the Corporation's Common Stock at a discount.
You should complete this form if you want to participate in the
Plan commencing with the ___________________ to _______________
Offering Period. IN ORDER TO BE VALID, THIS SUBSCRIPTION AGREEMENT
MUST BE PROPERLY EXECUTED AND RECEIVED BY THE CORPORATION ON OR
BEFORE ______________. THIS SUBSCRIPTION AGREEMENT WILL REMAIN IN
EFFECT FOR SUBSEQUENT OFFERING PERIODS UNLESS YOUR PLAN
PARTICIPATION TERMINATES OR UNTIL YOU FILE A WITHDRAWAL FORM OR A
NEW SUBSCRIPTION AGREEMENT WITH THE CORPORATION PURSUANT TO THE
TERMS OF THE PLAN.
DEFERRAL ELECTION. If you are an Eligible Employee (as defined in
the Plan) as of _________________, you may commence participation
in the Plan with the ________________ to _______________ Offering
Period. To commence participation in the Plan, initial the box
below and indicate the level of your Contributions.
I hereby authorize the Company to deduct from my paycheck
each pay period __________% (designate a whole number from 1%
to 10%) of my Compensation (as such term is defined in the
Plan), for the purchase of Common Stock under the Plan. My
Contributions will be deducted from each one of my paychecks
beginning with the first full pay period commencing on
_____________ and will continue for this and subsequent
Offering Periods unless my Plan participation terminates or
until I file a Withdrawal Form or a new Subscription
Agreement with the Corporation pursuant to the terms of the
Plan. My Contributions are subject to certain limits under
the Plan and any of my Contributions in excess of such limits
will be refunded to me.
BENEFICIARY DESIGNATION. (Please initial the following box if you
have attached a Designation of Beneficiary form. If you have
already filed a Designation of Beneficiary form under the Plan, you
do not need to file a new form unless you wish to change your
beneficiary.)
I hereby acknowledge that I have read and completed the
Designation of Beneficiary attached hereto as Exhibit C.
SIGNATURE. I hereby agree to be bound by the terms of the Plan,
acknowledge receipt of a copy of the Plan and Prospectus, and
authorize the election, payroll deductions, and beneficiary
designation (if applicable) specified above.
Signature Date
Print Name Social Security Number
Street Address City, State, Zip Code
<PAGE>
[O'MELVENY & MYERS LLP LETTERHEAD]
November
19th
1 9 9 7
645,085-999
Pacific Sunwear of California, Inc.
5037 East Hunter Avenue
Anaheim, California 92807
Re: Registration on Form S-8 of Pacific Sunwear
of California, Inc. (the "Company")
Ladies and Gentlemen:
At your request, we have examined the Registration Statement
on Form S-8 to be filed with the Securities and Exchange Commission in
connection with the registration under the Securities Act of 1933,
as amended, of 120,000 shares of Common Stock, $0.01 par value per
share, of the Company (the "Common Stock"), to be issued pursuant
to the Pacific Sunwear of California, Inc. Employee Stock Purchase
Plan (the "Plan"). We have examined the proceedings heretofore
taken and to be taken in connection with the authorization of the
Plan and the Common Stock to be issued pursuant to and in
accordance with the Plan.
Based upon such examination and upon such matters of fact
and law as we have deemed relevant, we are of the opinion that the
Common Stock has been duly authorized by all necessary corporate
action on the part of the Company and, when issued in accordance
with such authorization, the provisions of the Plan and relevant
agreements duly authorized by and in accordance with the terms of
the Plan, will be validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to
the Registration Statement.
Respectfully submitted,
/s/ O'Melveny & Myers LLP
<PAGE>
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Pacific Sunwear of California, Inc., pertaining to the Pacific Sunwear of
California Employee Stock Purchase Plan, on Form S-8 of our report dated
March 11, 1997, appearing in the Annual Report on Form 10-K of Pacific
Sunwear of California, Inc. for the year ended February 2, 1997.
/s/ Deloitte & Touche LLP
Costa Mesa, California
November 19, 1997
