F O R M QUIKSILVER, INC. RESTRICTED STOCK AGREEMENT (Employee Grant)
EXHIBIT 10.1
F O R M
QUIKSILVER, INC.
(Employee Grant)
Participant:
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Grant Date:
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Number of Shares of
Restricted Stock Granted:
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THIS RESTRICTED STOCK AGREEMENT (this “Agreement”) dated as of [_______________________], 200___(the
“Grant Date”) is entered into by and between Quiksilver, Inc., a Delaware corporation (the
“Corporation”), and the Participant 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 Participant,
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 Participant an aggregate of ___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, as follows:
Exhibit 10.1
Page 1
(b) Acceleration of Vesting Upon Corporate Transaction. No shares of the Restricted
Stock shall vest at the time of a Corporate Transaction on an accelerated basis if and to the
extent that (i) this Agreement is, in connection with the Corporate Transaction, continued or
assumed by the successor corporation (or parent thereof) or otherwise continued in full force and
effect pursuant to the express terms of the Corporate Transaction, or (ii) substitution of new
agreements of comparable value covering shares of the successor corporation (or parent thereof) in
exchange for such shares of Restricted Stock, with appropriate adjustments as to the number and
kind of shares and purchase price, is provided for pursuant to the express terms of the Corporation
Transaction. However, if none of the foregoing conditions are satisfied, immediately prior to the
effective date of the Corporate Transaction, all of the Restricted Stock shall accelerate and vest
and all restrictions shall lapse, immediately prior to the effective date of the Corporate
Transaction. In addition, if this Agreement is continued or assumed by a successor corporation (or
parent thereof) or otherwise continued in full force and effect pursuant to the express terms of
the Corporate Transaction or new agreements of comparable value covering shares of the successor
corporation (or parent thereof) are substituted in exchange for the shares of Restricted Stock, 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 Change in Control. In the event that the Corporation
terminates Participant as an Employee, other than for Misconduct, following a Change in Control,
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 Service. Vesting of the Restricted Stock requires continued Service
of the Participant from the Grant Date through each applicable vesting date as a condition to the
vesting of the applicable installment 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 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.
Exhibit 10.1
Page 2
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 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
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 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 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
Exhibit 10.1
Page 3
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; Misconduct.
(a) 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,
regardless of the reason for such termination (whether with or without cause, voluntarily or
involuntarily).
(b) Misconduct. Subject to earlier vesting as provided in Section 2 hereof, if the
Participant engages in Misconduct, 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 immediately prior to the date the
Participant first engaged in Misconduct.
(c) Forfeiture Procedures. Upon the occurrence of any forfeiture of shares of
Restricted Stock under this Section 7, such unvested, forfeited shares and related Restricted
Property shall be automatically transferred to the Corporation, without any other action by the
Participant. 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 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 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 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
Exhibit 10.1
Page 4
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 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 (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
Corporation, as the Corporation 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 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.
Exhibit 10.1
Page 5
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 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 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 | ||||
| By: | ||||
| Print Name: | ||||
| Its: | ||||
| PARTICIPANT | ||||
| Signature | ||||
| Print Name | ||||
Exhibit 10.1
Page 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. “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 any 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:
Exhibit 10.1
Page 7
(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 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.
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 definitions 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” or “Permanently Disabled” 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. Participant shall be deemed to cease
Service immediately upon the occurrence of either of the following events: (i) the Participant no
longer performs services in the capacity of an Employee for the Corporation or any Parent or
Subsidiary; or (ii) the entity for which the Participant is performing such services ceases to
remain a Parent or Subsidiary of the Corporation, even though the Participant may subsequently
continue to perform services for that entity.
L. “Subsidiary” shall mean any corporation (other than the Corporation) in the 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,
Exhibit 10.1
Page 8
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.
M. “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.
Exhibit 10.1
Page 9
