QUIKSILVER, INC. 2006 RESTRICTED STOCK PLAN FORM OF RESTRICTED STOCK ISSUANCE AGREEMENT
EXHIBIT 10.1
QUIKSILVER, INC.
2006 RESTRICTED STOCK PLAN
2006 RESTRICTED STOCK PLAN
Participant: |
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Grant Date: |
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Restricted Stock Granted: |
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THIS RESTRICTED STOCK ISSUANCE AGREEMENT (this “Agreement”) dated as of [ ],
2006 (the “Grant Date”) is entered into by and between Quiksilver, Inc., a Delaware corporation
(the “Corporation”), and the Participant specified above, pursuant to the Quiksilver, Inc. 2006
Restricted Stock Plan (the “Plan”). Capitalized terms used herein and not otherwise defined in the
attached Appendix or elsewhere herein shall have the meaning assigned to such terms 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. Grant; Payment of Par Value. Subject to the terms of this Agreement, the
Corporation hereby grants to the Participant an aggregate of [ ] restricted shares of
Common Stock of the Corporation (the “Restricted Stock”). Within ten (10) days following the Grant
Date, Participant shall be required to pay to the Corporation an amount (the “Par Price”) equal to
the product of (i) the number of shares of Restricted Stock granted (excluding any treasury shares
granted) and (ii) the par value of each share of Restricted Stock to be acquired. Payment of the
Par Price shall be made in cash (including check, bank draft, money order or wire transfer of
immediately available funds).
2. Vesting.
(a) Time Vesting. Subject to Section 7 below, the Restricted Stock shall vest, and
restrictions shall lapse, as follows:
| Date | Number of Shares | |||
(b) Acceleration of Vesting Upon Corporate Transaction. Unless the rights and
obligations of the Corporation with respect to this Agreement are to be assigned to the successor
corporation (or Parent thereof) in connection with a Corporate Transaction, all of the Restricted
Stock shall accelerate and vest and all restrictions shall lapse, upon the consummation of a
Corporate Transaction. If the rights and obligations of the Corporation with respect to this
Agreement are assigned to a successor corporation (or Parent thereof) in connection with a
Corporate Transaction and the successor corporation (or Parent thereof) terminates Participant as
an employee, other than for Misconduct, all of the Restricted Stock shall accelerate and vest and
all restrictions shall lapse immediately prior to such termination of Participant as an employee of
the successor corporation (or Parent thereof).
(c) Acceleration of Vesting Upon Termination Following Change in Control. In the
event that the Corporation terminates Participant as an Employee following a Change in Control,
other than for Misconduct, all of the Restricted Stock shall accelerate and vest and all
restrictions shall lapse immediately prior to such termination of Participant as an Employee.
(d) Acceleration of Vesting Upon Death or Permanent Disability. In the event of the
death or Permanent Disability of Participant, all of the Restricted Stock shall accelerate and vest
and all restrictions shall lapse immediately prior to such death or Permanent Disability.
3. Continuance of Employment. Vesting of the Restricted Stock requires continued
Service of the Participant from the Grant Date through the vesting date as a condition to the
vesting of the Restricted Stock and the rights and benefits under this Agreement. 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 Parent or Subsidiary), interferes in any way with the right of the Corporation
(or any Parent or Subsidiary) at any time to terminate such employment or services, or affects the
right of the Corporation (or any Parent or Subsidiary) to increase or decrease the Participant’s
other compensation or benefits. Nothing in this section, however, is intended to adversely affect
any independent contractual right of the Participant without his or her consent thereto.
4. Dividend and Voting Rights. After the Grant Date, the Participant shall be
entitled to cash dividends and voting rights with respect to the shares of Restricted Stock even
though such shares are not vested, provided that such rights shall terminate immediately as to any
shares of Restricted Stock that are forfeited pursuant to Section 7 below.
5. Restrictions on Transfer. Prior to the time that they have become vested, neither
shares of the Restricted Stock, nor any interest therein, amount payable in respect thereof, or
Restricted Property (as defined in Section 8 hereof) may be sold, assigned, transferred, pledged or
otherwise disposed of, alienated or encumbered (collectively, a “Transfer”), either voluntarily or
involuntarily. The Transfer restrictions in the preceding sentence shall not apply to (i)
transfers to the Corporation, or (ii) transfers by will or the laws of descent and distribution.
After any shares of Restricted Stock have vested, the Participant shall be permitted to Transfer
such shares of Restricted Stock, subject to applicable securities law requirements, the
Corporation’s xxxxxxx xxxxxxx policies, and other applicable laws and regulations.
6. Stock Certificates.
(a) Book Entry Form. The Corporation shall issue the shares of Restricted Stock
either: (i) in certificate form as provided in Section 6(b) below; or (ii) in book entry form,
registered in the name of the Participant with notations regarding the applicable restrictions on
transfer imposed under this Agreement.
(b) Certificates to be Held by Corporation; Legend. Any certificates representing
shares of Restricted Stock that may be delivered to the Participant by the Corporation prior to
vesting shall be redelivered to the Corporation to be held by the Corporation until the
restrictions on such shares shall have lapsed and the shares shall thereby have become vested or
the shares represented thereby have been forfeited hereunder. Such certificates shall bear the
following legend:
“The ownership of this certificate and the shares of stock evidenced
hereby and any interest therein are subject to substantial
restrictions on transfer under an Agreement entered into between the
registered owner and Quiksilver, Inc. A copy of such Agreement is
on file in the office of the Secretary of Quiksilver, Inc.”
(c) Delivery of Certificates Upon Vesting. Promptly after the vesting of any shares
of Restricted Stock, the Corporation shall, as applicable, either remove the notations on any
shares of Restricted Stock issued in book entry form which have vested or deliver to the
Participant a certificate or certificates evidencing the number of shares of Restricted Stock which
have vested (or, in either case, such lesser number of shares as may be permitted pursuant to
Section 9). The Participant (or the beneficiary or personal representative of the Participant in
the event of the Participant’s death or Permanent Disability, as the case may be) shall deliver to
the Corporation any representations or other documents or assurances as the Committee may deem
desirable to assure compliance with all applicable legal and accounting requirements. The shares
so delivered shall no longer be Restricted Stock hereunder.
(d) Stock Power; Power of Attorney. Concurrently with the execution and delivery of
this Agreement, the Participant shall deliver to the Corporation an executed stock power in the
form attached hereto as Exhibit A, in blank, with respect to such shares. The Participant,
by acceptance of the Restricted Stock, shall be deemed to appoint, and does so appoint by execution
of this Agreement, the Corporation and each of its authorized representatives as the Participant’s
attorney(s)-in-fact to effect any transfer of unvested forfeited shares of Restricted Stock (or
shares otherwise reacquired by the Corporation hereunder) to the Corporation as may be required
pursuant to the Plan or this Agreement and to execute such documents as the Corporation or such
representatives deem necessary or advisable in connection with any such transfer.
7. Effect of Termination of Service. Subject to earlier vesting as provided in
Section 2 hereof, if the Participant ceases to provide Service to the Corporation (or a Parent or
Subsidiary), the Participant’s shares of Restricted Stock (and related Restricted Property as
defined in Section 8 hereof) shall be forfeited to the Corporation to the extent such shares have
not become vested pursuant to Section 2 upon the date the Participant’s Service terminates
(the “Severance Date”), regardless of the reason for such termination (whether with or without
cause, voluntarily or involuntarily). Upon the occurrence of any forfeiture of shares of
Restricted Stock hereunder, such unvested, forfeited shares and related Restricted Property shall
be automatically transferred to the Corporation, without any other action by the Participant and
the Corporation shall refund the Par Price for such forfeited shares, if any, to the Participant.
No additional consideration shall be paid by the Corporation with respect to such transfer. No
interest shall be credited with respect to, nor shall any other adjustments be made to, the Par
Price for fluctuations in the fair market value of the Common Stock either before or after the
transfer date (except for customary adjustments to reflect stock splits, reverse stock splits, and
stock dividends). The Corporation may exercise its powers under Section 6(d) hereof and take any
other action necessary or advisable to evidence such transfer. The Participant shall deliver any
additional documents of transfer that the Corporation may request to confirm the transfer of such
unvested, forfeited shares and related Restricted Property to the Corporation.
8. Adjustments Upon Specified Events. If any change is made to the Common Stock by
reason of any stock split, stock dividend, recapitalization, combination of shares, exchange of
shares, Corporate Transaction (not resulting in acceleration of vesting pursuant to Section 2(b))
or other change affecting the outstanding Common Stock as a class, appropriate adjustment shall be
made by the Committee to the number and/or class of securities in effect under this Agreement.
Such adjustments to the outstanding Restricted Stock are to be effected in a manner which shall
preclude the enlargement or dilution of rights and benefits under this Agreement. The adjustments
determined by the Committee shall be final, binding and conclusive. If any adjustment shall be
made pursuant to the foregoing or any dividend other than a regular cash dividend is declared and
the shares of Restricted Stock are not fully vested upon such event or prior thereto, the
restrictions applicable to such shares of Restricted Stock shall continue in effect with respect to
any consideration or other securities (the “Restricted Property” and, for the purposes of this
Agreement, “Restricted Stock” shall include “Restricted Property,” unless the context otherwise
requires) received in respect of such Restricted Stock. Such Restricted Property shall vest at
such times and in such proportion as the shares of Restricted Stock to which the Restricted
Property is attributable vest, or would have vested pursuant to the terms hereof if such shares of
Restricted Stock had remained outstanding.
9. Taxes.
(a) Tax Withholding. The Corporation (or any Parent or Subsidiary last employing the
Participant) shall be entitled to require a cash payment by or on behalf of the Participant and/or
to deduct from other compensation payable to the Participant any sums required with respect to
Withholding Taxes. Alternatively, the Participant or other person in whom the Restricted Stock
vests may irrevocably elect, in such manner and at such time or times prior to any applicable tax
date as may be permitted or required under rules established by the Committee, to have the
Corporation withhold and reacquire shares of Restricted Stock at their Fair Market Value at the
time of vesting to satisfy all or part of the minimum Withholding Taxes of the Corporation (or any
Parent or Subsidiary) with respect to such vesting. Any election to have shares so held back and
reacquired shall be subject to such rules and procedures, which may include prior approval of the
Committee, as the Committee may impose, and shall not be
available if the Participant makes or has made an election pursuant to Section 83(b) of the
Code with respect to such Restricted Stock.
(b) Tax Consequences to Participant. Participant acknowledges that the issuance and
the vesting of the Restricted Stock may have significant and adverse tax consequences for
Participant and that Participant has been advised by the Corporation to review the Questions and
Answers on Federal Income Tax Consequences portion of the Corporation’s Stock Plan Summary and
Prospectus and to consult Participant’s personal tax advisor regarding the consequences of the
issuance and vesting of the Restricted Stock to Participant.
10. 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 payroll
records. Any notice shall be delivered in person or shall be 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 office regularly maintained by the United
States Government. Any such notice shall be given only when received, but if the Participant is no
longer an Employee shall be deemed to have been duly given five business days after the date mailed
in accordance with the foregoing provisions of this Section 10.
11. Plan. The Restricted Stock 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 Plan Summary and 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 Committee
do not (and shall not be deemed to) create any rights in the Participant unless such rights are
expressly set forth herein or are otherwise in the sole discretion of the Board or the Committee so
conferred by appropriate action of the Board or the Committee under the Plan after the date
hereof.
12. Entire Agreement. This Agreement and the Plan together 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 3.3 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.
13. 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.
14. 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.
15. Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware without regard to conflict of law principles
thereunder.
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be executed on its behalf by
a duly authorized officer and the Participant has hereunto set his or her hand as of the date and
year first above written.
| QUIKSILVER, INC., a Delaware corporation |
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| By: | ||||
| Print Name: | ||||
| Its: | ||||
| PARTICIPANT | |||
| Signature | |||
| Print Name |
APPENDIX
The following definitions shall be in effect under the Agreement:
A. “Board” shall mean the Corporation’s Board of Directors.
B. “Change in Control” shall mean a change in ownership of control of the Corporation effected
through either of the following transactions.
(i) the acquisition, directly or indirectly, by any person or related group of persons (other
than the Corporation or a person that directly controls, is controlled by, or is under common
control with, the Corporation), of beneficial ownership (within the meaning of Rule 13d-3 of the
0000 Xxx) of securities possessing more than fifty percent (50%) of the total combined voting power
of the Corporation’s outstanding securities pursuant to a tender or exchange offer made directly to
the Corporation’s stockholders, or
(ii) a change in the composition of the Board over a period of thirty-six (36) consecutive
months or less such that a majority of the Board members ceases, by reason of one or more contested
elections for Board membership, to be comprised of individuals who either (A) have been Board
members continuously since the beginning of such period or (b) have been elected or nominated for
election as Board members during such period by at least a majority of the Board members described
in clause (A) who were still in office at the time the Board approved such election or nomination.
C. “Committee” shall mean the Compensation Committee of the Board of Directors.
D. “Common Stock” shall mean the Corporation’s common stock.
E. “Corporate Transaction” shall mean either of the following stockholder-approved
transactions to which the Corporation is a party:
(i) a merger or consolidation in which securities possessing more than fifty percent (50%) of
the total combined voting power of the Corporation’s outstanding securities are transferred to a
person or persons different from the persons holding those securities immediately prior to such
transaction, or
(ii) the sale, transfer or other disposition of all or substantially all of the Corporation’s
assets in complete liquidation or dissolution of the Corporation.
F. “Employee” shall mean an individual who is in the employ of the Corporation (or any Parent
or Subsidiary), subject to the control and direction of the employer entity as to both the work to
be performed and the manner and method of performance.
G. “Fair Market Value” per share of Common Stock on any relevant date shall be determined in
accordance with the following provisions:
(i) If the Common Stock is at the time traded on the Nasdaq National Market (prior to becoming
a national securities exchange), then the Fair Market Value shall be the closing selling price per
share of Common Stock on the date in question, as such price is reported by the National
Association of Securities Dealers in the Nasdaq National Market. If there is no closing selling
price for the Common Stock on the date in question, then the Fair Market Value shall be the closing
selling price on the last preceding date for which such quotation exists.
(ii) If the Common Stock is at the time listed on any Stock Exchange, then the Fair Market
Value shall be the closing selling price per share of Common Stock on the date in question on the
Stock Exchange determined by the Committee to be the primary market for the Common Stock, as such
price is officially quoted in the composite tape of transactions on such exchange. If there is no
closing selling price for the Common Stock on the date in question, then the Fair Market Value
shall be the closing selling price on the last preceding date for which such quotation exists.
H. “Misconduct” shall mean the commission of any act of fraud, embezzlement or dishonesty by
the Participant, any unauthorized use or disclosure by such person of confidential information or
trade secrets of the Corporation (or any Parent or Subsidiary), or any other intentional misconduct
by such person adversely affecting the business or affairs of the Corporation (or any Parent or
Subsidiary) in a material manner. The foregoing definition shall not be deemed to be inclusive of
all the acts or omissions which the Corporation (or any Parent or Subsidiary) may consider as
grounds for the dismissal or discharge of any Participant or other person in the Service of the
Corporation (or any Parent or Subsidiary).
I. “Parent” shall mean any corporation (other than the Corporation) in an unbroken chain of
corporations ending with the Corporation, provided each corporation in the unbroken chain (other
than the Corporation) owns, at the time of the determination, stock possessing fifty percent (50%)
or more of the total combined voting power of all classes of stock in one of the other corporations
in such chain.
J. “Permanent Disability” shall mean the inability of the Participant to engage in any
substantial gainful activity by reason of any medically determinable physical or mental impairment
expected to result in death or to be of continuous duration of twelve (12) months or more.
K. “Service” shall mean the performance of services for the Corporation (or any Parent or
Subsidiary) by a person in the capacity of an Employee.
L. “Stock Exchange” shall mean the American Stock Exchange, the New York Stock Exchange or the
Nasdaq Stock Market (upon becoming a national securities exchange).
M. “Subsidiary” shall mean any corporation (other than the Corporation) in an unbroken chain
of corporations beginning with the Corporation, provided each corporation (other than the last
corporation) in the unbroken chain owns, at the time of the
determination, stock possessing fifty percent (50%) or more of the total combined voting power
of all classes of stock in one of the other corporations in such chain.
N. “Withholding Taxes” shall mean the Federal, state and local income and employment
withholding taxes to which the Participant may become subject in connection with the issuance or
vesting of shares of Restricted Stock or upon the disposition of shares acquired pursuant to this
Agreement.
CONSENT OF SPOUSE
In consideration of the execution of the foregoing Restricted Stock Issuance Agreement by
Quiksilver, Inc., I, , the spouse of the Participant therein named, do
hereby join with my spouse in executing the foregoing Restricted Stock Issuance Agreement and do
hereby agree to be bound by all of the terms and provisions thereof and of the Plan.
Dated: , 2006
| Signature of Spouse | |||
| Print Name |
STOCK POWER
FOR VALUE RECEIVED and pursuant to that certain Restricted Stock Issuance Agreement between
Quiksilver, Inc., a Delaware corporation (the “Corporation”), and the individual named below (the
“Individual”) dated as of , 2006, the Individual, hereby sells, assigns and transfers
to the Corporation, an aggregate shares of Common Stock of the Corporation, standing in
the Individual’s name on the books of the Corporation and represented by stock certificate
number(s) to which this instrument is attached, and hereby irrevocably constitutes and
appoints as his or her attorney in fact and agent to transfer such shares
on the books of the Corporation, with full power of substitution in the premises.
Dated ,
| Signature | |||
| Print Name |
(Instruction: Please do not fill in any blanks other than the signature line. The purpose of the
assignment is to enable the Corporation to exercise its sale/purchase option set forth in the
Restricted Stock Issuance Agreement without requiring additional signatures on the part of the
Individual.)
