Exhibit 10.9
QUIKSILVER, INC.
1998 NONEMPLOYEE DIRECTORS'
STOCK OPTION PLAN
Quiksilver, Inc., a corporation organized under the laws of the State of
Delaware (the "Company"), hereby adopts this Quiksilver, Inc. 1998 Nonemployee
Directors' Stock Option Plan (the "Plan"). The purpose of this Plan is to
advance the interests of the Company by enhancing its ability to retain
qualified persons who are neither employees nor officers of the Company to serve
as members of the Company's Board of Directors. This Plan provides such persons
with the opportunity to become owners of capital stock of the Company by the
grant of Options to purchase Shares. Options granted hereunder shall be
"nonstatutory options," and shall not include "incentive stock options" intended
to qualify for treatment under Sections 421 and 422A of the Internal Revenue
Code of 1986, as amended.
Section 1. Definitions. As used herein, the following definitions shall
apply:
(a) "Administrator" shall mean the entity, whether the Board or the
Committee, responsible for administering this Plan, as provided in Section 2.
(b) "Board" shall mean the Board of Directors of the Company.
(c) "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
(d) "Committee" shall mean the committee, if any, appointed by the
Board in accordance with Section 3(c) to administer this Plan.
(e) "Company" shall mean Quiksilver, Inc., a Delaware corporation.
(f) "Common Stock" shall mean the Company's $.01 par value Common
Stock.
(g) "Expiration Date" shall mean the last day of the term of an
Option established under Section 5(b).
(h) "Fair Market Value" shall mean, as of the date in question: (i)
the closing price of a Share on the principal exchange on which Shares of the
Company's stock are then trading, if any, on the day previous to such date, or,
if shares were not traded on the day previous to such date, then on the next
preceding trading day during which a sale occurred; or (ii) if such stock is not
traded on an exchange but is quoted on NASDAQ or a successor quotation system,
(1) the last sales price (if the stock is then listed as a National Market Issue
under the NASD National Market System) or (2) the mean between the closing
representative bid and asked prices (in all other cases) for the stock on the
day previous to such date as reported by NASDAQ or such successor quotation
system; or (iii) if such stock is not publicly traded on an exchange and not
quoted on NASDAQ or a successor quotation system, the mean between the closing
bid and asked prices for the stock, on the day previous to such date, as
determined in good faith by the
Committee; or (iv) if the Company's stock is not publicly traded, the fair
market value established by the Committee acting in good faith. Such
determination shall be conclusive and binding on all persons.
(i) "Nonemployee Director" shall mean any person who is a member of
the Board but is not an employee or officer of the Company or any Parent or
Subsidiary of the Company. Service as a director does not in itself constitute
employment for purposes of this definition.
(j) "Option" shall mean a stock option granted pursuant to this
Plan. Each Option shall be a nonstatutory option not intended to qualify as an
incentive stock option within the meaning of Section 422A of the Code.
(k) "Option Agreement" shall mean the written agreement described in
Section 5 evidencing the grant of an Option to a Nonemployee Director and
containing the terms, conditions and restrictions pertaining to such Option.
(l) "Option Shares" shall mean the Shares subject to an Option
granted under this Plan.
(m) "Optionee" shall mean a Nonemployee Director who holds an
Option.
(n) "Plan" shall mean this Quiksilver, Inc. 1998 Nonemployee
Directors' Stock Option Plan, as it may be amended from time to time.
(o) "Section," unless the context clearly indicates otherwise, shall
refer to a Section of this Plan.
(p) "Share" shall mean a share of Common Stock, as adjusted in
accordance with Section 7.
(q) "Subsidiary" shall mean a "subsidiary corporation" of the
Company, whether now or hereafter existing, within the meaning of Section 425(f)
of the Code, but only for so long as it is a "subsidiary corporation."
Section 2. Administration.
(a) The Board shall administer this Plan, including implementing and
overseeing (i) all necessary actions in connection with the delivery of Option
Agreements evidencing Option grants under this Plan, (ii) the exercise or
termination of Options pursuant to the terms of this Plan, and (iii) the
interpretation of the provisions of this Plan and any Option granted under this
Plan. The Board shall adopt by resolution such rules and regulations as may be
required to carry out the purposes of this Plan and shall have authority to do
everything necessary or appropriate to administer this Plan. All decisions,
determinations and interpretations of the Board shall be final and binding on
all Optionees.
(b) The Board may delegate administration of the Plan to a Committee
of no less than two directors appointed by the Board. The Board may from time to
time remove
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members from, or add members to, the Committee, and vacancies on the Committee
shall be filled by the Board. Furthermore, the Board at any time by resolution
may abolish the Committee and revest in the Board the administration of this
Plan. (For purposes of this Plan document, the term "Administrator" shall mean
the Board or, to the extent that the Board's powers have been delegated to the
Committee, the Committee.)
(c) All decisions, interpretations and other actions of the
Administrator shall be final and binding on all persons. No member of the
Committee or Board shall be liable for any action that he or she has taken or
failed to take in good faith with respect to this Plan or any Option.
Section 3. Eligibility and Consideration. Only Nonemployee Directors may
receive Options under this Plan. In consideration of the granting of the Option,
the Optionee shall agree in the written Option Agreement to remain as a director
of the Company for a period of at least one year after the Option is granted.
Section 4. Shares Subject to Plan.
(a) Aggregate Number. Subject to Section 7 (relating to adjustments
upon changes in Shares), the Shares which may be issued upon exercise of Options
shall not exceed in the aggregate 200,000 Shares. Shares issued under this Plan
may be unissued Shares or reacquired Shares. The Company, during the term of the
Plan, shall at all times reserve and keep available sufficient Shares to satisfy
the requirements of the Plan.
(b) No Rights as a Stockholder. An Optionee shall have no rights as
a stockholder with respect to any Shares covered by his or her Option until the
issuance (as evidenced by the appropriate entry on the books of the Company or
its duly authorized transfer agent) of a stock certificate evidencing such
Shares. Subject to Section 7, no adjustment shall be made for dividends
(ordinary or extraordinary, whether in cash, securities or other property),
distributions, or other rights for which the record date is prior to the date
the certificate is issued.
Section 5. Grant of Options.
(a) Option Grants. Each Nonemployee Director on the date the Plan is
approved by the Stockholders of the Company shall be automatically granted on
such date, an Option to purchase 40,000 shares at an exercise price per share
equal to the Fair Market Value of the Shares as of such date of approval and
such grants shall be subject to and conditioned upon obtaining such stockholder
approval of the Plan.
(b) Terms; Vesting. Subject to the other provisions of this Plan,
each Option granted pursuant to this Plan shall be for a term of ten years. Each
Option granted under this Section 5 shall become exercisable with respect to
one-fourth of the number of Shares covered by such Option on the first, second,
third and fourth anniversary of the date such Option was granted, so that such
Option shall be fully exercisable beginning on such fourth anniversary of the
date the Option was granted.
(c) Option Agreement. As soon as practicable after the grant of an
Option, the Optionee and the Company shall enter into a written Option Agreement
which specifies the
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date of grant, the number of Option Shares, the option price, and the other
terms and conditions applicable to the Option.
(d) Transferability. No Option shall be transferable otherwise than
by will or the laws of descent and distribution, and an Option shall be
exercisable during the Optionee's lifetime only by the Optionee.
(e) Limits on Exercise. Subject to the other provisions of this
Plan, an Option shall be exercisable in such amounts as are specified in the
Option Agreement.
(f) Exercise Procedures. To the extent the right to purchase Shares
has accrued, Options may be exercised, in whole or in part, from time to time,
by written notice from the Optionee to the Company stating the number of Shares
being purchased, accompanied by payment of the exercise price for the Shares,
and other applicable amounts, as provided in Section 6.
(g) Expiration of Options. No Option may be exercised to any extent
by anyone after the first to occur of the following events:
(i) The expiration of ten years from the date the Option was
granted;
(ii) Except in the case of any Optionee who is disabled
(within the meaning of Section 22(e)(3) of the Code), the expiration of three
months from the date of the termination of service by Optionee as a director of
the Company for any reason other than such Optionee's death unless the Optionee
dies within said three-month period;
(iii) In the case of an Optionee who is disabled (within the
meaning of Section 22(e)(3) of the Code), the expiration of one year from the
date of the termination of service by Optionee as a director of the Company for
any reason other than such Optionee's death unless the Optionee dies within said
one-year period; or
(iv) The expiration of one year from the date of Optionee's
death.
Section 6. Payment upon Exercise of Options.
(a) Purchase Price. The purchase price of Shares issued under this
Plan shall be paid in full at the time an Option is exercised.
(b) Form of Consideration. Optionees may make all or any portion of
any payment due to the Company upon exercise of an Option by delivery of cash or
any Shares or other securities of the Company, so long as such Shares or other
securities constitute valid consideration for the stock under applicable law and
are surrendered in good form for transfer; provided, however, that Options may
not be exercised by the delivery of Shares or other securities of the Company if
they have not been held for the requisite period necessary to avoid a charge to
the Company's earnings for financial reporting purposes. Shares or other
securities delivered upon exercise shall be valued at their Fair Market Value on
the delivery date.
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(c) Taxes. Irrespective of the form of payment made for exercise of
an Option, exercise shall be conditioned upon payment in cash to the Company by
the Optionee of all local, state and federal withholding taxes applicable, in
the Administrator's judgment, to the exercise of the Option.
Section 7. Adjustment of Shares.
(a) Changes in Capital Structure. Subject to Section 7(b), if the
outstanding Shares are changed into or exchanged for a different number or kind
of shares or other securities of the Company or of another corporation, by
reason of a reorganization, merger, consolidation, recapitalization,
reclassification, stock split, combination of securities or stock dividend, the
total number and/or kind of securities for the purchase of which Options may be
granted under this Plan, and the number and/or kind of securities as to which
Options (or portions thereof) are outstanding, shall be adjusted proportionately
by the Administrator. Any adjustment in an outstanding Option shall be made
without change in the total exercise price applicable to the unexercised portion
of such Option and with a corresponding adjustment in the exercise price per
Share. Any adjustment under this Section 7(a) shall be subject to the provisions
of the Company's Certificate of Incorporation, as amended, and applicable law.
Any such adjustment shall be final and binding upon all Optionees, the Company
and all other interested persons.
(b) Reorganization and Other Transactions. In its absolute
discretion, and on such terms and conditions as it deems appropriate, the
Administrator may provide by the terms of any Option that such Option cannot be
exercised after the merger or consolidation of the Company with or into another
corporation, the acquisition by another corporation or person of all or
substantially all of the Company's assets or 80% or more of the Company's then
outstanding voting stock or the liquidation or dissolution of the Company; and
if the Administrator so provides, it may, in its absolute discretion and on such
terms and conditions as it deems appropriate, also provide, either by the terms
of such Option or by a resolution adopted prior to the occurrence of such
merger, consolidation, acquisition, liquidation or dissolution, that, for some
period of time prior to such event, such Option shall be exercisable as to all
shares covered thereby, notwithstanding anything to the contrary in Section 5.
Section 8. No Right to Directorship. Neither, this Plan nor any Option
granted hereunder shall confer upon any Optionee any right with respect to
continuation of the Optionee's membership on the Board or shall interfere in any
way with provisions in the Company's Certificate of Incorporation and Bylaws
relating to the election, appointment, terms of office, and removal of members
of the Board.
Section 9. Legal Requirements. The Company shall not be obligated to offer
or sell any Shares upon exercise of any Option unless the Shares are at that
time effectively registered or exempt from registration under the federal
securities laws and the offer and sale of the Shares are otherwise in compliance
with all applicable securities laws and the regulations of any stock exchange on
which the Company's securities may then be listed. The Company shall have no
obligation to register the securities covered by this Plan under the federal
securities laws or take any other steps as may be necessary to enable the
securities covered by this Plan to be offered and sold under federal or other
securities laws. Upon exercising all or any portion of an Option, an Optionee
may be required to furnish representations or undertakings deemed appropriate by
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the Company to enable the offer and sale of the Shares or subsequent transfers
of any interest in the Shares to comply with applicable securities laws.
Certificates evidencing Shares acquired upon exercise of Options shall bear any
legend required by, or useful for purposes of compliance with, applicable
securities laws, this Plan or the Option Agreements.
Section 10. Duration and Amendments.
(a) Duration. This Plan shall become effective on March 20, 1998,
subject to the approval of the Company's stockholders. This Plan and any Options
granted hereunder shall be null and void if such approval is not obtained. This
Plan shall terminate automatically on March 19, 2008, and may be terminated on
any earlier date pursuant to Section 10(b).
(b) Amendment; Termination. The Plan may be wholly or partially
amended or otherwise modified, suspended or terminated at any time or from time
to time by the Board or the Committee. To the extent necessary or desirable to
comply with Rule 16b-3, the Code or any other applicable law or regulation, the
Company shall obtain stockholder approval of any amendment to the Plan in such a
manner and to such a degree as required. Neither the amendment, suspension nor
termination of the Plan shall, without the consent of the holder of the Option,
alter or impair any rights or obligations under any Option theretofore granted.
(c) Effect of Amendment or Termination. No Shares shall be issued or
sold under this Plan after the termination hereof, except upon exercise of an
Option granted before termination. Termination or amendment of this Plan shall
not affect any Shares previously issued and sold or any Option previously
granted under this Plan.
Date Plan approved by Board: December 17, 1997
Date Plan approved by Shareholders: March 20, 1998
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NON-EMPLOYEE DIRECTOR
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, dated __________, 1998, is made by and between
Quiksilver, Inc., a Delaware corporation (the "Company"), and
____________________, a non-employee director of the Company (the "Director").
WHEREAS, the Company wishes to afford the Director the opportunity
to purchase shares of its Common Stock; and
WHEREAS, the Company wishes to carry out the Quiksilver, Inc. 1998
Nonemployee Directors' Stock Option Plan (the "Plan") a copy of which is
delivered herewith and the terms of which are hereby incorporated by reference
and made a part of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used but not defined herein shall have the meaning
specified in the Plan. The masculine pronoun shall include the feminine and
neuter, and the singular the plural, where the context so indicates.
ARTICLE II
GRANT OF OPTION
Section 2.1. Grant of Option
In consideration of the Director's agreement to continue in his service to
the Company, and for other good and valuable consideration, on the date hereof
the Company irrevocably grants to the Director the option to purchase any part
or all of an aggregate of 40,000 Shares of its Common Stock upon the terms and
conditions set forth in this Agreement; provided, however, that the grant of
this Option is subject to and conditioned upon stockholder approval of the Plan.
The Plan and this Option shall be null and void if such approval is not
obtained.
Section 2.2. Purchase Price
The purchase price of the Shares of Common Stock covered by the Option
shall be $_____ per share without commission or other charge.
Section 2.3. Consideration to Company
In consideration of the granting of this Option by the Company, the
Director agrees to render faithful and efficient services to the Company, with
such duties and responsibilities as the Board of Directors shall from time to
time prescribe, for a period of at least one year from the date this Option is
granted. Nothing in this Agreement or in the Plan shall confer upon the Director
any right to continue serving in a directorship position of the Company or shall
interfere with or restrict in any way the rights of the stockholders of the
Company, which are hereby expressly reserved, to remove the Director pursuant to
provisions therefor in the charter or bylaws of the Company.
ARTICLE III
PERIOD OF EXERCISABILITY
Section 3.1. Commencement of Exercisability
The Option shall become exercisable in four cumulative installments as
follows:
(a) The first installment shall consist of twenty percent (25%) of
the Shares covered by the Option and shall become exercisable on the first
anniversary of the date the Option is granted.
(b) The second installment shall consist of twenty percent (25%) of
the Shares covered by the Option and shall become exercisable on the second
anniversary of the date the Option is granted.
(c) The third installment shall consist of twenty percent (25%) of
the Shares covered by the Option and shall become exercisable on the third
anniversary of the date the Option is granted.
(d) The fourth installment shall consist of twenty percent (25%) of
the Shares covered by the Option and shall become exercisable on the fourth
anniversary of the date the Option is granted.
Section 3.2. Expiration of Option
The Option may not be exercised to any extent by the Director after the
first to occur of the events set forth in Section 5(h) of the Plan.
ARTICLE IV
EXERCISE OF OPTION
Section 4.1. Person Eligible to Exercise
During the lifetime of the Director, only he may exercise the Option or
any portion thereof. After the death of the Director, any exercisable portion of
the Option may, prior to the
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time when the Option becomes unexercisable, be exercised by the Director's
personal representative or by any person empowered to do so under the Director's
will or under the then applicable laws of descent and distribution.
Section 4.2. Partial Exercise
Any exercisable portion of the Option or the entire Option, if then wholly
exercisable, may be exercised in whole or in part at any time prior to the time
when the Option or portion thereof becomes unexercisable; provided, however,
that each partial exercise shall be for not less than 100 Shares.
Section 4.3. Manner of Exercise
The Option, or any exercisable portion thereof, may be exercised solely by
delivery to the Secretary of the Company or the Secretary's office of all of the
following prior to the time when the exercisable Option or portion thereof
becomes unexercisable:
(a) Notice in writing signed by the Director or such other person
then entitled to exercise the Option or portion thereof, stating that the Option
or portion thereof is thereby exercised, such notice complying with all
applicable rules established by the Administrator; and
(b) (i) Full payment (in cash or by check) for the Shares with
respect to which such Option or portion is exercised;
(ii) With the consent of the Administrator, Shares of the
Company's Common Stock owned by the Director duly endorsed for transfer to the
Company with a Fair Market Value on the date of delivery equal to the aggregate
purchase price of the Shares with respect to which such Option or portion is
exercised; or
(iii) Any combination of the consideration provided in the
foregoing subparagraphs (i) and (ii); and
(c) A bona fide written representation and agreement, in a form
satisfactory to the Administrator, signed by the Director or other person then
entitled to exercise such Option or portion thereof, stating that the Shares of
stock are being acquired for his or her own account, for investment and without
any present intention of distributing or reselling said Shares or any of them
except as may be permitted under the Securities Act of 1933, as amended (the
"Securities Act"), and then applicable rules and regulations thereunder, and
that the Director or other person then entitled to exercise such Option or
portion thereof will indemnify the Company against and hold it free and harmless
from any loss, damage, expense or liability resulting to the Company if any sale
or distribution of the Shares by such person is contrary to the representation
and agreement referred to above. The Administrator may, in its absolute
discretion, take whatever additional actions it deems appropriate to insure the
observance and performance of such representation and agreement and to effect
compliance with the Securities Act and any other federal or state securities
laws or regulations. Without limiting the generality of the foregoing, the
Administrator may require an opinion of counsel acceptable to it to the effect
that any subsequent transfer of Shares acquired on an Option exercise does not
violate the Securities Act, and may issue stop-transfer orders covering such
shares. Share certificates evidencing stock
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issued on exercise of this Option shall bear an appropriate legend referring to
the provisions of this subsection (c) and the agreements herein. The written
representation and agreement referred to in the first sentence of this
subsection (c) shall, however, not be required if the Shares to be issued
pursuant to such exercise have been registered under the Securities Act, and
such registration is then effective in respect of such Shares; and
(d) Full payment to the Company of all amounts which it is required
to withhold under federal, state or local law upon exercise of the Option; and
(e) In the event the Option or portion shall be exercised pursuant
to Section 4.1 by any person or persons other than the Director, appropriate
proof of the right of such person or persons to exercise the Option or portion
thereof.
Section 4.4. Conditions to Issuance of Stock Certificates
The Shares deliverable upon the exercise of the Option, or any portion
thereof, may be either previously authorized but unissued shares or issued
shares which have then been reacquired by the Company. Such Shares shall be
fully paid and nonassessable. The Company shall not be required to issue or
deliver any certificate or certificates for Shares purchased upon the exercise
of the Option or portion thereof prior to fulfillment of all of the following
conditions:
(a) The admission of such Shares to listing on all stock exchanges,
if any, on which such class of stock is then listed;
(b) The completion of any registration or other qualification of
such Shares under any state or federal law or under the rulings or regulations
of the Securities and Exchange Commission or any other governmental regulatory
body, which the Administrator shall, in its absolute discretion, deem necessary
or advisable;
(c) The obtaining of any approval or other clearance from any state
or federal governmental agency which the Administrator shall, in its absolute
discretion, determine to be necessary or advisable;
(d) The payment to the Company of all amounts which it is required
to withhold under federal, state or local law upon exercise of the Option; and
(e) The lapse of such reasonable period of time following the
exercise of the Option as the Administrator may from time to time establish for
reasons of administrative convenience.
Section 4.5. Rights as Shareholder
The holder of the Option shall not be, nor shall such holder have any of
the rights of privileges of, a stockholder of the Company in respect of any
Shares purchasable upon the exercise of any part of the Option unless and until
a certificate or certificates representing such Shares shall have been issued by
the Company to such holder.
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ARTICLE V
OTHER PROVISIONS
Section 5.1. Administration
The Administrator shall have the power to interpret the Plan and this
Agreement and to adopt such rules for the administration, interpretation and
application of the Plan as are consistent therewith and to interpret, amend or
revoke any such rules. All actions taken and all interpretations and
determinations made by the Administrator in good faith shall be final and
binding upon the Director, the Company and all other interested persons.
Section 5.2. Option Not Transferable
Neither the Option nor any interest or right therein or part thereof shall
be subject to or liable for the debts, contracts or engagements of the Director
or his successors in interest or shall be subject to disposition by transfer,
alienation, anticipation, pledge, encumbrance, assignment or any other means
whether such disposition be voluntary or involuntary or by operation of law by
judgment, levy, attachment, garnishment or any other legal or equitable
proceedings (including bankruptcy), and any attempted disposition thereof shall
be null and void and of no effect; provided, however, that this Section 5.2
shall not prevent transfers by will or by the applicable laws of descent and
distribution.
Section 5.3. Shares to Be Reserved
The Company shall at all times during the term of the Option reserve and
keep available such number of Shares as will be sufficient to satisfy the
requirements of this Agreement.
Section 5.4. Notices
Any notice to be given under the terms of this Agreement to the Company
shall be addressed to the Company in care of its Secretary, and any notice to be
given to the Director shall be addressed to him at the address given beneath his
signature hereto. By a notice given pursuant to this Section 5.4, either party
may hereafter designate a different address for notices to be given to him. Any
notice which is required to be given to the Director shall, if the Director is
then deceased, be given to the Director's personal representative if such
representative has previously informed the Company of his status and address by
written notice under this Section 5.4. Any notice shall be deemed duly given
when enclosed in a properly sealed envelope or wrapper addressed as aforesaid,
deposited (with postage prepaid) in a post office or branch post office
regularly maintained by the United States Postal Service.
Section 5.5. Titles
Titles are provided herein for convenience only and are not to serve as a
basis for interpretation or construction of this Agreement.
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Section 5.6. Construction
This Agreement shall be administered, interpreted and enforced under the
laws of the State of California.
Section 5.7. The Plan
A copy of the Plan has been delivered to the Director, and receipt of such
copy is hereby expressly acknowledged by the Director. This Agreement hereby
incorporates by reference said Plan document and all of the terms and conditions
of the Plan as the same may be amended from time to time hereafter in accordance
with the terms thereof. The terms of this Agreement shall in no manner limit or
modify the controlling provisions of the Plan, and in the case of any conflict
between the provisions of the Plan and this Agreement, the provisions of the
Plan shall be controlling and binding upon the parties hereto.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by the
parties hereto.
QUIKSILVER, INC.
By: ____________________________
Chief Executive Officer
By: ____________________________
Secretary
___________________________________
Director
___________________________________
___________________________________
Address
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