QUIKSILVER, INC. RESTRICTED STOCK AGREEMENT (Special Grant)
Exhibit 10.1
QUIKSILVER, INC.
(Special Grant)
Director: |
Xxxxxxx Xxxxxxxx | |||
Grant Date: |
June 7, 2007 | |||
| Number
of Shares of Restricted Stock Granted: |
5,000 |
THIS RESTRICTED STOCK AGREEMENT (this “Agreement”) dated as of June 7, 2007 (the “Grant Date”)
is entered into by and between Quiksilver, Inc., a Delaware corporation (the “Corporation”), and
the Director specified above, pursuant to the Restricted Stock Program under the Quiksilver, Inc.
amended and restated 2000 Stock Incentive 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 Director, and
the mutual promises made herein and the mutual benefits to be derived therefrom, the parties agree
as follows:
1. Grant. Subject to the terms of this Agreement, the Corporation hereby grants to
the Director an aggregate of 5,000 restricted shares of Common Stock of the Corporation (the
“Restricted Stock”).
2. Vesting.
(a) Time Vesting. Subject to Section 7 below, the Restricted Stock shall vest, and
restrictions shall lapse, June 6, 2008.
(b) Acceleration of Vesting Upon Corporate Transaction/Change in Control. All of the
Restricted Stock shall accelerate and vest and all restrictions shall lapse, immediately prior to
the effective date of a Corporate Transaction or Change in Control.
(c) Acceleration of Vesting Upon Death or Permanent Disability. In the event of the
death or Permanent Disability of Director, 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 Service. Vesting of the Restricted Stock requires continued Service
of the Director as a member of the Corporation’s Board of Directors and as Chairman of the Audit
Committee from the Grant Date through the vesting date as a condition to the vesting
1
of the Restricted Stock and the rights and benefits under this Agreement. Nothing contained
in this Agreement or the Plan constitutes a service commitment by the Corporation, confers upon the
Director any right to remain in service to the Corporation, interferes in any way with the right of
the Corporation at any time to terminate such services, or affects the right of the Corporation to
increase or decrease the Director’s other compensation or benefits. Nothing in this section,
however, is intended to adversely affect any independent contractual right of the Director without
his or her consent thereto.
4. Dividend and Voting Rights. After the Grant Date, the Director shall be entitled
to voting rights and any regular cash dividends 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 Director 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 Director 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 Director 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.”
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 shares of Restricted Stock
have vested, and all other conditions and restrictions applicable to such Restricted Stock have
been satisfied or lapse (including satisfaction of any applicable Withholding Taxes), the
2
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 Director 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 Director (or
the beneficiary or personal representative of the Director in the event of the Director’s death or
Permanent Disability, as the case may be) shall deliver to the Corporation any representations or
other documents or assurances as the Corporation 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 Director 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 Director, 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 Director’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 Director ceases to provide Service to the Corporation as a member of the
Corporation’s Board of Directors, the Director’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 Director’s Service as a
member of the Board of Directors 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 Director. No additional consideration shall be paid by the
Corporation with respect to such transfer. The Corporation may exercise its powers under Section
6(d) hereof and take any other action necessary or advisable to evidence such transfer. The
Director 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 or other change affecting the outstanding Common Stock as a class, appropriate adjustment
shall be made 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 Corporation 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
3
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 shall be entitled to require a cash payment by
or on behalf of the Director and/or to deduct from other compensation payable to the Director any
sums required with respect to Withholding Taxes. Alternatively, the Director 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
Corporation, 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 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
Corporation, as the Corporation may impose, and shall not be available if the Director makes or has
made an election pursuant to Section 83(b) of the Code with respect to such Restricted Stock.
(b) Tax Consequences to Director. Director acknowledges that the issuance and the
vesting of the Restricted Stock may have significant and adverse tax consequences for Director and
that Director 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 Director’s personal tax advisor regarding the consequences of the issuance and vesting of
the Restricted Stock to Director.
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 Director at the Director’s last address reflected on the Corporation’s 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 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 Director under this Agreement
are subject to the terms and conditions of the provisions of the Plan, incorporated herein by
reference. The Director agrees to be bound by the terms of the Plan and this Agreement. The
Director acknowledges having read and understanding the Plan, the Plan Summary and Prospectus for
the Plan, and this Agreement.
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
4
pursuant to Section 6.3 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 Director 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.
[Signature page follows]
5
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be executed on its behalf by
a duly authorized officer and the Director has hereunto set his or her hand as of the date and year
first above written.
| QUIKSILVER, INC., a Delaware corporation |
||||
| By: | ||||
| Print Name: | ||||
| Its: | ||||
DIRECTOR |
||||
| Signature | ||||
| Xxxxxxx Xxxxxxxx | ||||
| Print Name | ||||
6
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 or 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. “Common Stock” shall mean the Corporation’s common stock.
D. “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.
E. “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 listed on any established stock exchange or
over-the-counter market, then the Fair Market Value shall be the closing selling price per share of
Common Stock (or closing bid, if no sales were reported) as quoted on such exchange or market,
determined by the Plan Administrator to be the primary market for the Common Stock, at the close of
regular hours trading (i.e., before after-hours trading begins) on the date in question as reported
in the Wall Street Journal or such other source as the Plan Administrator deems reliable. If there
is no closing selling price (or closing bid, if no sales were reported) for the Common Stock on the
date in question, then the Fair Market Value shall be the
7
closing selling price (or closing bid if no sales were reported) on the last preceding date
for which such quotation exists.
(ii) If the Common Stock is at the time not listed on any established stock exchange
or over-the-counter market, the Fair Market Value shall be determined by the Board in good faith.
F. “Permanent Disability” or “Permanently Disabled” shall mean the inability of the Director
to perform his or her usual duties as a Board member 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.
G. “Service” shall mean the performance of services for the Corporation by a person in the
capacity of a member of the Corporation’s Board of Directors.
H. “Withholding Taxes” shall mean the federal, state and local income and employment
withholding taxes to which the Director 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.
8
CONSENT OF SPOUSE
In consideration of the execution of the foregoing Restricted Stock Agreement by Quiksilver,
Inc., I, _______________________________,
the spouse of the Director therein named, do hereby join with
my spouse in executing the foregoing Restricted Stock Agreement and do hereby agree to be bound by
all of the terms and provisions thereof and of the Plan.
Dated: ________________, 2007
| Signature of Spouse | ||||
| Print Name | ||||
9
EXHIBIT A
STOCK POWER
FOR VALUE RECEIVED and pursuant to that certain Restricted Stock Agreement between Quiksilver,
Inc., a Delaware corporation (the “Corporation”), and the individual named below (the “Individual”)
dated as of June 7, 2007, the Individual, hereby sells, assigns and transfers to the Corporation,
an aggregate 5,000 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 June ___, 2007
| Signature | ||||
| Xxxxxxx Xxxxxxxx | ||||
| 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 Agreement without requiring additional signatures on the part of the Individual.)
