Exhibit 10.20
QUIKSILVER, INC.
LONG-TERM INCENTIVE PLAN
1. PURPOSE OF THE PLAN
The Plan is intended to provide a greater long-term orientation to the
Company's compensation program, drive Company performance and individual rewards
on a long-term basis, and provide an additional incentive to attract, retain and
motivate executive talent critical to the success of the Company. This Plan is
effective November 1, 2003, subject to shareholder approval of certain Plan
terms at the Company's 2004 Annual Meeting of Shareholders in accordance with
Section 8(b).
2. DEFINITIONS
As used in the Plan, the following definitions apply to the terms
indicated below.
(a) "Administrator" means the officers and employees of the Company
responsible for the day-to-day administration of the Plan and to which the
authority may be delegated under Section 3.
(b) "Award" means a long-term incentive award granted under this Plan for
a Performance Cycle pursuant to Section 6. An Award constitutes an opportunity
for the Participant to earn incentive compensation, subject to the terms of the
Plan and the retained authority of the Committee to reduce or eliminate Awards
prior to their final determination.
(c) "Board of Directors" means the Board of Directors of Quiksilver, Inc.
(d) "Cause," when used in connection with the termination of a
Participant's employment with the Company, means the termination of the
Participant's employment by the Company by reason 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
Company (or any Subsidiary), or any other intentional misconduct by such person
adversely affecting the business or affairs of the Company (or any Subsidiary)
in a material manner. The foregoing definition shall not be deemed to be
inclusive of all the acts or omissions which the Company (or any Subsidiary) may
consider as grounds for the dismissal or discharge or any Participant or other
person in the service of the Company (or any Subsidiary).
(e) "Change in Control" means shall mean a change in ownership or control
of the Company effected through either of the following transactions:
(i) the acquisition, directly or indirectly, by any person or
related group of persons (other than the Company or a person that directly
or indirectly controls, is controlled by, or is under common control with,
the Company), of securities if after such acquisition such person or group
is the beneficial owner (within the meaning of Rule 13d-3 of the 1934 Act)
of securities possessing more than fifty percent (50%) of the total
combined voting power of the Company's outstanding securities pursuant to
a tender or exchange offer made directly to the Company'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.
(f) "Code" means the Internal Revenue Code of 1986, as amended from time
to time. Reference in the Plan to any Code section shall be deemed to include
any amendments or successor provisions to any Section and any treasury
regulations promulgated thereunder.
(g) "Committee" means the Compensation Committee of the Board of Directors
or such other committee as the Board of Directors may appoint from time to time
to administer the Plan. Membership and governance of the Committee shall be
determined in accordance with the Committee charter as from time-to-time in
effect. No action of the Committee shall be void or deemed to be without
authority solely due to the failure of a member to meet a qualification
requirement at the time such action was taken.
(h) "Common Stock" means the Company's common stock, par value $.01 per
share.
(i) "Company" means Quiksilver, Inc., a Delaware corporation, and any
corporate successor to all or substantially all of the assets or voting stock of
Quiksilver, Inc., which shall by appropriate action adopt the Plan.
(j) "Disability" means a Participant's "permanent and total disability,"
within the meaning of Code Section 22(e)(3). Notwithstanding the foregoing, if a
Participant has a written employment agreement with the Company that includes a
definition of "disability," the definition contained in the employment agreement
shall apply (in lieu of the definition set forth above) with respect to that
Participant.
(k) "Employee" means any person who is an employee of the Company or any
Subsidiary within the meaning of Code Section 3401(c) and the applicable
interpretive authority thereunder.
(l) "Fair Market Value" of a share of Common Stock on any date is (i) the
closing sales price on that date (or if that date is not a business day, on the
immediately preceding business day) of a share of Common Stock as reported on
the principal securities exchange on which shares of Common Stock are then
listed or admitted to trading, currently the New York Stock Exchange ("NYSE").
If the price of a share of Common Stock is not so reported, the Fair Market
Value of a share of Common Stock shall be determined by the Committee in its
absolute discretion
(m) "Participant" means an eligible Employee who is granted an Award
pursuant to Section 6.
(n) "Performance Cycle" means the three-year period (or one-year and
two-year period in the case of the phase-in Performance Cycle and initial
Performance Cycle) over which
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performance goals are measured with respect to any Awards granted for that
Performance Cycle. A phase-in Performance Cycle will begin November 1, 2003 and
end October 31, 2004. An initial two-year Performance Cycle and a regular (i.e.
three-year) Performance Cycle also will begin on November 1, 2003. Subsequent
Performance Cycles will begin annually each year thereafter on November 1 (i.e.,
beginning November 1, 2004).
(o) "Plan" means the Quiksilver, Inc. Long-Term Incentive Plan, as set
forth herein and as may be amended from time to time.
(p) "Retirement" means termination of employment at or after age 65.
(q) "Securities Laws" means the Securities Act of 1933, the Securities
Exchange Act of 1934, applicable state securities laws, and any rules and
regulations issued thereunder.
(r) "Subsidiary" means any corporation in which, at the pertinent time,
the Company owns, directly or indirectly, stock vested with 50% or more of the
total combined voting power of all classes of stock of such corporations within
the meaning of Code Section 424(f).
3. ADMINISTRATION OF THE PLAN
The Plan shall be administered by the Committee, subject to the Board of
Director's power to amend or terminate the Plan pursuant to Section 12. The
Committee will designate the eligible key management Employees of the Company to
whom Awards will be granted under the Plan, the time(s) at which such Awards
will be granted, and the other conditions of the grant of Awards, subject to the
terms of the Plan. The provisions and conditions of the grants of Awards need
not be the same with respect to each grantee or with respect to each Award.
The Committee will, subject to the provisions of the Plan, establish such
rules and regulations as it deems necessary or advisable for the proper
administration of the Plan, and will make determinations and will take such
other action to accomplish the objectives of the Plan as it deems necessary or
advisable. Each determination or other action made or taken pursuant to the
Plan, any interpretation of the Plan and the specific conditions and provisions
of Awards set by the Committee will be final and conclusive for all purposes and
upon all persons.
The Committee may delegate certain of its administrative powers to the
Administrator. The Committee may authorize any one or more of its members or any
officer of the Company to execute and deliver documents on behalf of the
Committee.
No member of the Committee shall be liable for any action, omission or
determination relating to the Plan, and the Company shall indemnify and hold
harmless each member of the Committee and each other director or employee of the
Company to whom any duty or power relating to the administration or
interpretation of the Plan has been delegated from and against any cost or
expense (including attorneys' fees) or liability (including any sum paid in
settlement of a claim with the approval of the Committee) arising out of any
action, omission or determination relating to the Plan, unless, in either case,
such action, omission or determination was taken or made by such member,
director or employee in bad faith and without reasonable belief that it was in
the best interests of the Company.
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The Committee may determine a pro-forma performance goal to adjust for
acquisitions, reflect changes in accounting rules, corporate structure or other
circumstances of the Company, for the purpose of preventing dilution or
enlargement of a Participant's opportunity to earn incentive compensation under
Awards; provided, however, that no adjustment shall be authorized if and to the
extent that such authorization or adjustment would cause the determined
objectives not to meet the "performance goal requirement" set forth in Treasury
Regulation 1.162-27(e)(2) under the Code.
4. MAXIMUM AWARD
In no event may the maximum Award amount for any Performance Cycle payable
to any one Participant exceed $3,000,000.
5. ELIGIBILITY
The Chief Executive Officer ("Chief Executive Officer") will recommend to
the Committee, from time to time, those key management Employees proposed to be
designated for participation in the Plan and granted an Award for a Performance
Cycle. Key management Employees are those Employees who are largely responsible
for the management, growth and profitability of the business of the Company. The
Committee will then designate those key management Employees who will
participate and shall specify the Awards to be granted for each Performance
Cycle, subject to Sections 6 and 7 and other applicable Plan provisions.
Participation in any one Performance Cycle does not guarantee participation in
any other Performance Cycle.
6. GRANTS OF AWARDS
Pursuant to Sections 3 and 5, Employees may be selected annually to
receive an Award for a Performance Cycle. Such selection will occur no later
than 90 days after the beginning of a Performance Cycle. Notwithstanding the
foregoing, if an Employee is newly hired or promoted into a key management
Employee position within the first nine months of a Performance Cycle, the
Committee (upon recommendation by the Chief Executive Officer) may grant such
Employee an Award for that Performance Cycle and may prorate the target amounts
with respect to such Award. Following such selection, the Chief Executive
Officer will advise the selected Employees that they are Participants in the
Plan for that Performance Cycle and will provide to each such Participant
written confirmation of such participation, including the target and performance
goals associated with the Participant's Award.
7. TARGETS AND PERFORMANCE GOALS
Annually, no later than 90 days after the beginning of a Performance Cycle
the Chief Executive Officer will recommend, and the Committee will determine and
establish in writing, the threshold, target, and maximum awards and the
performance goals (together with those factors related to such goals as well as
any applicable matrices, schedules or formulae applicable to the weighting of
such goals) for that Performance Cycle that will apply with respect to each
Award to be granted for that Cycle. The Committee may set different targets,
performance goals, and weightings with respect to each Award.
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Performance will be measured based upon one or more pre-established,
objective performance goals (within the meaning of Code Section 162(m)) for each
Performance Cycle. Such performance goals shall be based on any one or any
combination of the following business criteria of the Company as a whole or any
of its Subsidiaries (or any division or department of the foregoing), as
determined by the Committee: revenues, profitability, earnings (including,
without limitation, earnings per share, earnings per share growth, earnings
before taxes or earnings before interest, depreciation, taxes, and
amortization), return on assets, return on equity, economic value created,
successful acquisitions of other companies or assets, successful dispositions of
Subsidiaries, divisions or departments of the Company or any of its
Subsidiaries, share market prices, return to stockholders, market share, or cost
or expense control. Performance goals may be expressed as absolute goals or
goals in relation to previous performance or performance of comparable companies
or industry indexes, or otherwise based on the business criteria as determined
by the Committee. Each goal may be assigned a weighting, so that its achievement
would result in a specified percentage of the overall Award being earned. Also,
goals may be made independent so that the specified percentage of an overall
Award can be earned if one goal is met, even if the threshold performance is not
met for another goal.
Once the targets and performance goals are determined at the commencement
of each Performance Cycle, those targets and performance goals will not change
for that Performance Cycle, with the exception of the adjustments outlined in
Section 3.
The Committee may exercise negative discretion with respect to any Award.
This authority includes the right to specify that, upon achievement of
performance goals as specified above in this Section 7, the earning and payout
of the Award will be conditioned upon or adjusted downward based on other
measures of performance or conditions that need not qualify as objective,
pre-set goals under Section 162(m).
8. EARNED AWARD DETERMINATION/PAYMENT OF AWARDS
(a) Certification of Performance Goals. As soon as administratively
reasonable after the last day of each Performance Cycle (the "Earning Date"),
the Committee will certify in writing the performance under the applicable goals
for each Award granted for that Performance Cycle and will determine the portion
of each Award that has been earned ("Earned Award") for that Cycle. No payment
will be made until this certification is complete.
No Award will be earned if performance on at least one of the goals does
not meet the threshold level. The maximum Award that can be earned is reached at
the maximum performance level for all goals. No additional amount will be earned
if performance exceeds the maximum target. If, for any performance goal,
performance is between the threshold and target or between the target and the
maximum, the Committee may interpolate to calculate the Earned Award.
Notwithstanding the foregoing, the Committee may, in its sole discretion,
reduce the amount of any Award or decline to pay any Award.
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(b) Timing of Payment. Subject to Section 8(a), within an administratively
reasonable period following the Committee's certification pursuant to Section
8(a), each Earned Award will be paid in one lump sum payment. Notwithstanding
the foregoing, no Award will be payable pursuant to this Plan until shareholders
of the Company have approved the maximum Award limitation under Section 5,
eligibility terms under Section 6, and business criteria to be used to specify
performance goals under Section 7, to ensure that the Company will be able to
fully deduct payments under the Plan under Code Section 162(m).
(c) Form of Payment. All Earned Awards will be paid in cash, subject to
deferral under Section 8(d); provided, however, that the Committee, in its sole
discretion, may permit a Participant to elect to defer all or part of the
payment in the form of Company Stock instead of cash. Any deferral to be made in
Common Stock will be made in the nearest whole number of shares based on 100% of
the Fair Market Value of the Common Stock on the date that the cash award
otherwise would have been payable.
Shares of Common Stock issued as payment may be either newly issued or
treasury shares, at the discretion of the Committee and subject to applicable
rules under the Securities Laws. Payment shall not be made in shares of Common
Stock if such payment would violate any provision of the Securities Laws.
The Company shall be under no obligation to effect the registration
pursuant to the Securities Act of 1933 of any shares of Common Stock to be
issued as payment hereunder or to effect similar compliance under any state
laws. Notwithstanding anything herein to the contrary, the Company shall not be
obligated to cause to be issued or delivered any certificates evidencing shares
of Common Stock pursuant to the Plan unless and until the Company is advised by
its counsel that the issuance and delivery of such certificates is in compliance
with all applicable laws, regulations of governmental authority and the
requirements of any securities exchange on which shares of Common Stock are
traded. The Committee may require, as a condition of the issuance and delivery
of certificates evidencing shares of Common Stock pursuant to the terms hereof
that the recipient of such stock make such covenants, agreements and
representations, and that such certificates bear such legends, as the Committee,
in its sole discretion, deems necessary or desirable.
(d) Deferral of Payment. At any time on or before such date as may be
specified by the Administrator, the Participant may elect to defer settlement of
an Award to a date (i) later than the Earning Date for the Performance Cycle to
which the Award relates or (ii) later than Termination of Employment due to
Retirement or Disability, as specified by the Participant; provided, however,
that an optional deferral shall be subject to such additional restrictions and
limitations as the Committee or Administrator may from time to time specify,
including for purposes of ensuring that the Participant will not be deemed to
have constructively received compensation in connection with such deferral.
Dividend equivalents shall accrue on deferred shares of Common Stock and shall
be paid in cash annually to the Participant at an annual payment date set by the
Administrator, without interest or compounding. Other provisions of the Plan
notwithstanding, if any legislation or regulation imposes requirements on
elective non-qualified deferred compensation that are inconsistent with the Plan
and procedures hereunder, if Participants are not afforded an opportunity under
such legislation or regulation to withdraw or modify their prior elections or
deferred compensation resulting from such elections, then (i) if
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the prior deferrals can be automatically modified to conform to the requirements
of the legislation or regulation with the Participant being deemed not to be in
constructive receipt of the deferred compensation, then such modification
automatically shall be in effect, and (ii) if not, then such deferral will
immediately end and the deferred Award(s) shall be promptly settled in
accordance with the Plan; provided, however, that if a Participant would be
deemed to be in constructive receipt of any deferred amounts solely because of
this provision, the provision shall be void and of no effect.
(e) Withholding for Taxes. The Company will have the right to deduct from
all Award payments any Federal, state or local taxes required to be withheld
with respect to such payments. If payment is made in shares of Common Stock, the
Company shall withhold from the shares of Common Stock issuable or deliverable
in settlement of a Participant's Award the number of shares having an aggregate
Fair Market Value equal to any Federal, state, and local withholding or other
tax or charge which the Company is required to withhold under applicable law,
unless the Participant has otherwise elected and has made other arrangements
satisfactory to the Company to pay such withholding amounts.
(f) Non-Transferability. Unless otherwise determined by the Committee,
neither a Participant nor any Beneficiary shall have the right to, directly or
indirectly, alienate, assign, transfer, pledge, or encumber (except by reason of
death) any Award or other right hereunder, nor shall any such Award or other
right be subject to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, attachment, or garnishment by creditors of the Participant
or any Beneficiary, or to the debts, contracts, liabilities, engagements, or
torts of the Participant or any Beneficiary or transfer by operation of law in
the event of bankruptcy or insolvency of the Participant or any beneficiary, or
any legal process.
(g) Payment to Beneficiary. Any Award payments due but not paid to a
Participant who is deceased will be made to the Participant's beneficiary. The
Participant's beneficiary will be the beneficiary on file with respect to
company paid life insurance (unless a beneficiary designation specific to the
Plan has been filed), or, if none, the Participant's estate.
9. TERMINATION OF EMPLOYMENT DURING A PERFORMANCE CYCLE
(a) Retirement, Disability, Or Death. Unless otherwise provided in a
written employment agreement between the Participant and the Company, if a
Participant's employment with the Company terminates as a result of Retirement,
Disability, or death, Awards for the Performance Cycles in effect as of the
termination date will be prorated as follows: the amount of the Earned Award
will be determined with reference to the performance goals for the entire
Performance Cycle and the resulting Earned Award will be multiplied by a
fraction, the numerator of which is the whole months of active employment during
the Performance Cycle and the denominator of which is 36 (or 24 or 12 if the
Performance Cycle at issue is the initial Performance Cycle or phase-in
Performance Cycle, respectively). Notwithstanding the foregoing, the Committee
may approve payment of the full amount or of a greater prorated amount. The
Committee may elect to determine the Earned Award and make the payout under this
Section 9(a) after the end of the Performance Cycle or earlier based on its good
faith determination of the level of performance achieved to date or to be
achieved for the Performance
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Cycle, which determination will be final. Any Awards granted for a Performance
Cycle that ended prior to the termination date will not be affected.
(b) Termination By Participant Or For Cause. Unless otherwise provided in
a written employment agreement between the Participant and the Company, if a
Participant terminates his or her employment with the Company (for any reason
other than Retirement, Disability, or death) or the Company terminates the
Participant's employment with the Company for Cause, Awards for Performance
Cycles in effect as of the termination date will be forfeited as of the
commencement of business on the termination date. Notwithstanding the foregoing,
the Committee may approve payment of all or a portion of the Award that would
have been earned but for the termination of employment. Any Awards granted for a
Performance Cycle that ended prior to the termination date will not be affected.
(c) Termination Without Cause. Unless otherwise provided in a written
employment agreement between the Participant and the Company, if the Company
terminates a Participant's employment with the Company (for any reason other
than Retirement, Disability, death, or Cause), any Awards for Performance Cycles
in effect as of the termination date will be forfeited except if and to the
extent the Committee determines to approve payment of an Award. Any Awards
granted for a Performance Cycle that ended prior to the termination date will
not be affected.
10. CHANGE IN CONTROL
If there is a Change in Control while the Plan remains in effect, then,
for all Performance Cycles in effect at the time the Change in Control occurs,
outstanding Awards will be deemed to be Earned Awards with all performance goals
achieved at target levels, with payment to be made pro-rata for the portion of
each Performance Cycle completed. Payment will made immediately following the
date the Change in Control occurs.
11. NO SPECIAL EMPLOYMENT RIGHTS; NO RIGHT TO AWARD
Nothing contained in the Plan or any Award shall confer upon any
Participant any right with respect to the continuation of his or her employment
by the Company or interfere in any way with the right of the Company, subject to
the terms of any separate employment agreement to the contrary, at any time to
terminate such employment or to increase or decrease the compensation of the
Participant from the rate in existence at the time of the grant of an Award.
No person shall have any claim or right to receive an Award hereunder. The
Committee's granting of an Award to a Participant at any time shall neither
require the Committee to grant an Award to such Participant or any other
Participant or other person at any time nor preclude the Committee from making
subsequent grants to such Participant or any other Participant or other person.
12. AMENDMENTS, MODIFICATION AND TERMINATION OF THE PLAN
The Board of Directors or the Committee may at any time amend, modify,
suspend, or terminate the Plan. This includes the right to adopt any amendments
deemed by the Board of Directors or the Committee to be necessary or desirable
to correct any defect or to supply an
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omission or to reconcile any inconsistency in the Plan or in any Award granted
hereunder, provided that shareholder approval is obtained if required for
compensation under the Plan to qualify as performance-based compensation under
Code Section 162(m). No amendment, modification, suspension or termination of
the Plan may in any manner affect Awards theretofore granted without the consent
of the Participant unless the Committee has made a determination that an
amendment or modification is in the best interest of all persons to whom Awards
have theretofore been granted, but in no event may such amendment or
modification result in an increase in the amount of compensation payable
pursuant to such Award.
13. NONEXCLUSIVITY OF THE PLAN
The adoption of this Plan shall not be construed as creating any
limitations on the power of the Board or Committee to adopt such other
compensation arrangements as it may deem desirable for any Participant.
14. GOVERNING LAW
The Plan and all determinations made and actions taken pursuant thereto
will be governed by the laws of the State of California and construed in
accordance therewith.
Dated: ____________________________ QUIKSILVER, INC.
By: __________________________
Title: __________________________
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