UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of The Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): June 24, 2014

 

 

MALIBU BOATS, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   1-36290   46-4024640

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

 

5075 Kimberly Way

Loudon, Tennessee

  37774
(Address of principal executive offices)   (Zip Code)

Registrant’s telephone number, including area code (865) 458-5478

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2 below):

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


Item 8.01. Other Events

Second Amendment to the First Amended and Restated Limited Liability Company Agreement

On June 27, 2014, Malibu Boats, Inc. (the “Company”), the managing member of Malibu Boats Holdings, LLC, a Delaware limited liability company (“Holdings”), entered into a Second Amendment (the “Second Amendment”) to the First Amended and Restated Limited Liability Company Agreement, dated February 5, 2014, of Holdings (the “LLC Agreement”). The Second Amendment to the LLC Agreement amends the LLC Agreement by (i) providing that the schedule of members will be maintained at the Company’s principal executive offices, (ii) modifying the notice provisions related to registered offerings of Class A common stock, par value $0.01 per share of the Company (the “Class A Common Stock”) and (iii) modifying the term of the holdback period related to underwritten offerings of the Company’s securities. This description does not purport to be complete and is subject to and qualified in its entirety by reference to the full text of the amendment, which is filed herewith and incorporated herein by reference.

First Amendment to the Registration Rights Agreement

On June 27, 2014, the Company, Black Canyon Management LLC and affiliates of Black Canyon Capital LLC entered into the First Amendment (the “First Amendment”) to the Registration Rights Agreement, dated as of February 5, 2014 (the “Registration Rights Agreement”). The First Amendment to the Registration Rights Agreement amends the Registration Rights Agreement by (i) modifying the notice provisions related to registered offerings of the Company’s Class A Common Stock and (ii) modifying the term of the holdback period related to underwritten offerings of the Company’s securities. This description does not purport to be complete and is subject to and qualified in its entirety by reference to the full text of the amendment, which is filed herewith and incorporated herein by reference.

Amendment Number One to the Long-Term Incentive Plan

On June 24, 2014, the board of directors of the Company approved Amendment Number One (“Amendment Number One”) to the Company’s Long-Term Incentive Plan. Amendment Number One modifies the Long Term Incentive Plan by deleting certain provisions governing grants to members of the Company’s board of directors who are not also employees of the Company (“Non-Employee Directors”) and replacing it with the Director Compensation Policy described below. This description does not purport to be complete and is subject to and qualified in its entirety by reference to the full text of the amendment, which is filed herewith and incorporated herein by reference.

Directors’ Compensation Policy

The Company adopted a new Directors’ Compensation Policy that is effective June 30, 2014 and applies to Non-Employee Directors. Under the Directors’ Compensation Policy, beginning on the first business day following the Company’s initial public offering (“IPO”), each Non-Employee Director is entitled to receive an annual retainer of $62,500, payable in four equal quarterly installments. Any Non-Employee Director serving as chair of the compensation committee or audit committee is entitled to receive an additional $10,000 annual retainer, payable in four equal quarterly installments. The annual retainer and any additional retainers are each pro-rated for partial years of service. The Non-Employee Directors have the right to elect to receive their annual retainers and any additional annual retainers in the form of stock units or shares of Class A Common Stock in lieu of cash, which shares or units would be issued as of the last day of the quarter in which the retainers relate and the shares or units would be valued as of the award date.

On June 30, 2014, each Non-Employee Director in office on the first business day following the IPO is entitled to receive a fully vested initial equity award consisting of either stock units or shares of Class A Common Stock. The initial equity award is valued at $62,500, but is intended to cover the period from the first business day following the IPO to the Company’s 2015 annual meeting (which is expected to occur in December 2015), so the award value has been appropriately pro-rated. The initial equity award value was converted into shares or units based on the price of a share of Class A Common Stock in the IPO. Any Non-Employee Director that joins the board of directors after the first business day following the IPO and prior to the date of our 2015 annual meeting is entitled to a pro-rata initial equity award upon joining the board, however the pro-rated award value will be converted into a number of shares or units based on the price of a share of Class A Common Stock on the grant date (and not at the IPO price).

Beginning on the date of the Company’s 2015 annual meeting and on the date of each annual meeting in subsequent calendar years, each Non-Employee Director then in office is entitled to receive a fully vested annual equity award consisting of either stock units or shares of Class A Common Stock. The annual equity award is valued at $62,500, and will be converted into shares or units based on the price of a share of Class A Common Stock on the grant date. Any Non-Employee Director who joins the board of directors after the date of the annual meeting is entitled to a pro-rata annual equity award upon joining the board.

For any Non-Employee Director who elects to receive stock units, the stock units will not be payable in shares of Class A Common Stock until the earlier of a change in control for purposes of Section 409A of the Code or the Non-Employee Director’s separation from service from the board of directors. All stock units are entitled to receive dividend equivalent payments, which are reinvested into additional stock units.

Each Non-Employee Director is reimbursed for out-of-pocket expenses for attendance at board of directors and committee meetings.


This description does not purport to be complete and is subject to and qualified in its entirety by reference to the full text of the policy, which is filed herewith and incorporated herein by reference.

Letter Agreement Amending LLC Unit Vesting Schedule

On June 26, 2014, the Company, in its capacity as the managing member of Holdings approved amendments to the vesting schedule for certain units of Holdings that were previously granted to the Company’s Chief Operating Officer, Ritchie Anderson. This description does not purport to be complete and is subject to and qualified in its entirety by reference to the full text of the letter agreement, which is filed herewith and incorporated herein by reference.


Item 9.01. Financial Statements and Exhibits.

 

(d) Exhibits

 

Exhibit No.

  

Description

  3.1    Second Amendment, dated as of June 27, 2014, to the First Amended and Restated Limited Liability Company Agreement of Malibu Boats Holdings, LLC.
10.1    First Amendment, dated as of June 27, 2014, to the Registration Rights Agreement by and among Malibu Boats, Inc., Black Canyon Management LLC and Affiliates of Black Canyon Capital LLC.
10.2    Amendment Number One, dated as of June 24, 2014, to the Long-Term Incentive Plan.
10.3    Director Compensation Policy.
10.4    Letter Agreement Amending LLC Unit Vesting Schedule by and between Malibu Boats Holdings, LLC and Ritchie Anderson.


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

MALIBU BOATS, INC.

By:   /s/ Wayne R. Wilson
 

 

  Wayne R. Wilson
  Chief Financial Officer

Date: June 27, 2014


EXHIBIT INDEX

 

Exhibit No.

  

Description

  3.1    Second Amendment, dated as of June 27, 2014, to the First Amended and Restated Limited Liability Company Agreement of Malibu Boats Holdings, LLC.
10.1    First Amendment, dated as of June 27, 2014, to the Registration Rights Agreement by and among Malibu Boats, Inc., Black Canyon Management LLC and Affiliates of Black Canyon Capital LLC.
10.2    Amendment Number One, dated as of June 24, 2014, to the Long-Term Incentive Plan.
10.3    Director Compensation Policy.
10.4    Letter Agreement Amending LLC Unit Vesting Schedule by and between Malibu Boats Holdings, LLC and Ritchie Anderson.

Exhibit 3.1

SECOND AMENDMENT TO THE

FIRST AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT

OF MALIBU BOATS HOLDINGS, LLC

This Second Amendment (this “ Amendment ”), dated as of June 27, 2014, to the First Amended and Restated Limited Liability Company Agreement, as amended by the First Amendment, dated February 5, 2014 (the “ LLC Agreement ”) of Malibu Boat Holdings, LLC, a Delaware limited liability company (the “ Company ”) is executed by Malibu Boats, Inc., the Company’s managing member (the “ Managing Member ”). All capitalized terms used herein shall have the meanings set forth in the LLC Agreement, unless otherwise indicated.

RECITALS

WHEREAS , pursuant to Section 9.2(a) of the LLC Agreement, the LLC Agreement may, subject to certain limited exceptions, be amended by the written consent of the Managing Member in its sole discretion without the approval of any other Member or other Person; and

WHEREAS , the Managing Member hereby wishes to amend the LLC Agreement as set forth herein pursuant to and in accordance with Section 9.2(a) of the LLC Agreement.

NOW, THEREFORE , in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the LLC Agreement is hereby amended as follows:

AMENDMENT

 

  1. Amendment to Section 2.2(b) of the LLC Agreement . Section 2.2(b) of the LLC Agreement is hereby amended and restated in its entirety as follows:

“(b) Addition or Withdrawal of Members . The Company shall cause the schedule of Members maintained and kept at its principal executive office pursuant to Section 2.2(a) to be amended from time to time to reflect the admission of any Additional Member, the withdrawal or termination of any Member, receipt by the Company of notice of any change of address of a Member or the occurrence of any other event requiring that such schedule of Members be amended.”

 

  2. Amendment to Section 7.2(b) of the LLC Agreement . The last sentence of Section 7.2(b) of the LLC Agreement is hereby amended and restated in its entirety as follows:

“As promptly as practicable after the admission of a Substituted or Additional Member, the books and records of the Company and the schedule of Members maintained and kept at the Company’s principal executive office pursuant to Section 2.2(a) shall be changed to reflect such admission.”

 

  3. Amendment to Section 7.6(a) of the LLC Agreement . Section 7.6(a) of the LLC Agreement is hereby amended and restated in its entirety as follows:


“(a) At any time that Malibu Boats proposes or is obligated to register any shares of Class A Common Stock under the Securities Act (other than registrations on such form(s) solely for registration of shares of Class A Common Stock in connection with any employee benefit plan or dividend reinvestment plan or a merger or consolidation), including registrations pursuant to the terms of the Registration Rights Agreement, whether or not for sale for its own account, Malibu Boats will give written notice to each holder of Registrable Securities at least 5 days (or such shorter period as the holders of a majority of Registrable Securities shall agree) after the initial filing of such registration statement with the Securities and Exchange Commission of the intent of Malibu Boats to file such registration statement and of such holder’s rights under this Section 7.6. Upon the written request of any holder of Registrable Securities made within 3 days (or such shorter period as the holders of a majority of Registrable Securities shall agree) after any such notice is given (which request shall specify the Registrable Securities intended to be disposed of by such holder), Malibu Boats will use its best efforts to effect the registration (an “ Incidental Registration ”) under the Securities Act of all Registrable Securities which Malibu Boats, as the case may be, has been so requested to register by the holders thereof; provided, however, that if, at any time after giving written notice of its intention to register any securities and prior to the effective date of the registration statement filed in connection with such Incidental Registration, Malibu Boats shall determine for any reason not to register or to delay registration of such securities, Malibu Boats may, at its election, give written notice of such determination to each holder of Registrable Securities and, thereupon, (i) in the case of a determination not to register, Malibu Boats shall be relieved of its obligation to register any Registrable Securities under this Section 7.6 in connection with such registration, and (ii) in the case of a determination to delay registration, Malibu Boats shall be permitted to delay registering any Registrable Securities under this Section 7.6 during the period that the registration of such other securities is delayed.”

 

  4. Amendment to Section 7.6(e) of the LLC Agreement . Section 7.6(e) of the LLC Agreement is hereby amended and restated in its entirety as follows:

“(e) Each Member agrees that, if requested in writing in connection with an underwritten offering subsequent to Malibu Boats’ initial public offering made pursuant to a registration statement for which such Member has registration rights pursuant to this Section 7.6 by the managing underwriter or underwriters of such underwritten offering, such Member will not effect any public sale or distribution of any of the securities being registered or any securities convertible or exchangeable or exercisable for such securities (except as part of such underwritten offering), during the period beginning seven days prior to, and ending up to 90 days after, the effective date of any such subsequent underwritten registration (the “ Follow-On Holdback Period ”), except as part of any such underwritten registration (or for such shorter period as to which the managing underwriter or underwriters may agree, provided that such shorter period applies equally to all Members). Notwithstanding the foregoing, no Follow-On Holdback Period shall apply to any Person who (a) is not an executive officer or director of Malibu Boats, a selling stockholder in such offering or a Person selling Units to Malibu Boats, the


Company or any of their respective subsidiaries if such purchase is funded by the sale of Class A Common Stock by Malibu Boats, the Company or any of their respective subsidiaries in such offering and (b) holds, together with its affiliates, less than 1% of the then-outstanding Class A Common Stock.”

 

  5. Amendment to Section 10.1 of the LLC Agreement . The definition of “Percentage Interest” as set forth in Section 10.1 of the LLC Agreement is hereby amended and restated in its entirety as follows:

“” Percentage Interest ” of each Member is maintained in the Company’s books and records, and shall be equal to a fraction (expressed as a percentage), the numerator of which is the number of Units held by such Member and the denominator of which is the number of Units held by all the Members (it being understood that if the Company hereafter issues any Equity Securities other than the Units, then this definition shall be changed pursuant to an amendment of this Agreement in accordance with the terms hereof).”

 

  6. Amendment to Schedule A (Schedule of Members) of the LLC Agreement . Schedule A (Schedule of Members) of the LLC Agreement shall be deleted in its entirety as a schedule to the LLC Agreement and shall be maintained in the Company’s principal executive offices in accordance with Section 2.2(b) of the LLC Agreement.

MISCELLANEOUS

 

  1. No Other Amendments . Except as set forth herein, the LLC Agreement remains in full force and effect.

 

  2. Parties in Interest . All the terms and provisions of this Amendment shall be binding upon and insure to the benefit of and be enforceable by all Members.

 

  3. Headings . The headings of the sections of this Amendment have been inserted for convenience of reference only and do not constitute part of this Amendment.

 

  4. Choice of Law . The laws of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions (whether of the state of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware, shall govern the enforceability and validity of this Amendment, the construction of its terms and the interpretation of the rights and duties of the Members.

[R EMAINDER OF P AGE I NTENTIONALLY L EFT B LANK ]


IN WITNESS WHEREOF, the undersigned has executed and delivered this Amendment as of the date first written above.

 

MALIBU BOATS, INC.,

as the Managing Member

By:   /s/ Wayne R. Wilson
  Name: Wayne R. Wilson
  Title: Chief Financial Officer

Exhibit 10.1

FIRST AMENDMENT TO THE

REGISTRATION RIGHTS AGREEMENT

This First Amendment (this “ Amendment ”), dated as of June 27, 2014, to the Registration Rights Agreement, dated as of February 5, 2014 (the “ Registration Rights Agreement ”), by and among Malibu Boats, Inc., a Delaware corporation (the “ Company ”), Black Canyon Management LLC, a Delaware limited liability company, Black Canyon Direct Investment Fund L.P., a Delaware limited partnership (“ BC Direct Investment ”), Black Canyon Investments L.P., a Delaware limited partnership, Canyon Value Realization Fund, L.P., a Delaware limited partnership, The Canyon Value Realization Master Fund, L.P., a Cayman Islands limited partnership, and Loudon Partners, LLC, a Delaware limited liability company, is executed by the Company and BC Direct Investment. All capitalized terms used herein shall have the meanings set forth in the Registration Rights Agreement, unless otherwise indicated.

RECITALS

WHEREAS , pursuant to Section 3.1(a) of the Registration Rights Agreement, the Registration Rights Agreement may be amended with the consent of the Company and the holders of Covered LLC Units required to terminate the Registration Rights Agreement;

WHEREAS , as a result of the foregoing, the consent of the holders of two-thirds of the outstanding Covered LLC Units is required to amend the Registration Rights Agreement, and BC Direct Investment holds 3,622,940 LLC Units of the 5,059,026 Covered LLC Units, or over two-thirds of the outstanding Covered LLC Units, as of the date first written above; and

WHEREAS , the Company and BC Direct Investment hereby wish to amend the Registration Rights Agreement as set forth herein pursuant to and in accordance with Section 3.1(a) of the Registration Rights Agreement.

NOW, THEREFORE , in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Registration Rights Agreement is hereby amended as follows:

AMENDMENT

 

  1. Amendment to Section 2.3(a) of the Registration Rights Agreement . Section 2.3(a) of the Registration Rights Agreement is hereby amended and restated in its entirety as follows:

“(a) At any time the Company proposes to register any shares of Class A Common Stock under the Securities Act (other than an Exchange Registration or registrations on such form(s) solely for registration of shares of Class A Common Stock in connection with any employee benefit plan or dividend reinvestment plan or a merger or consolidation), including registrations pursuant to Section 2.2(a) , whether or not for sale for its own account, the Company will give written notice to each holder of Registrable Securities at least 5 days (or such shorter period as the holders of a majority of the Registrable Securities shall agree) after the initial filing of such registration


statement with the SEC of its intent to file such registration statement and of such holder’s rights under this Section 2.3 . Upon the written request of any holder of Registrable Securities made within 3 days (or such shorter period as the holders of a majority of the Registrable Securities shall agree) after any such notice is given (which request shall specify the Registrable Securities intended to be disposed of by such holder), the Company will use its best efforts to effect the registration (an “ Incidental Registration ”) under the Securities Act of all Registrable Securities which the Company, as the case may be, has been so requested to register by the holders thereof; provided, however, that if, at any time after giving written notice of its intention to register any securities and prior to the effective date of the registration statement filed in connection with such Incidental Registration, the Company shall determine for any reason not to register or to delay registration of such securities, the Company may, at its election, give written notice of such determination to each holder of Registrable Securities and, thereupon, (a) in the case of a determination not to register, the Company shall be relieved of its obligation to register any Registrable Securities under this Section 2.3 in connection with such registration, and (b) in the case of a determination to delay registration, the Company shall be permitted to delay registering any Registrable Securities under this Section 2.3 during the period that the registration of such other securities is delayed.

 

  2. Amendment to Section 2.4(a) of the Registration Rights Agreement . Section 2.4(a) of the Registration Rights Agreement is hereby amended and restated in its entirety as follows:

“(a) Each Black Canyon Entity agrees that, if requested in writing in connection with an underwritten offering subsequent to the Company’s initial public offering made pursuant to a registration statement for which such Black Canyon Entity has registration rights pursuant to this Article II by the managing underwriter or underwriters of such underwritten offering, such Black Canyon Entity will not effect any public sale or distribution of any of the securities being registered or any securities convertible or exchangeable or exercisable for such securities (except as part of such underwritten offering), during the period beginning seven days prior to, and ending up to 90 days after, the effective date of any such subsequent underwritten registration (the “ Follow-On Holdback Period ”), except as part of any such underwritten registration (or for such shorter period as to which the managing underwriter or underwriters may agree, provided that such shorter period applies equally to all Black Canyon Entities). Notwithstanding the foregoing, no Follow-On Holdback Period shall apply to any Black Canyon Entity that holds, together with its Affiliates, less than 1% of the then-outstanding Class A Common Stock.

 

2


MISCELLANEOUS

 

  3. No Other Amendments . Except as set forth herein, the Registration Rights Agreement remains in full force and effect.

 

  4. Parties in Interest . All the terms and provisions of this Amendment shall be binding upon and insure to the benefit of and be enforceable by all parties to the Registration Rights Agreement.

 

  5. Headings . The headings of the sections of this Amendment have been inserted for convenience of reference only and do not constitute part of this Amendment.

 

  6. Choice of Law . The Agreement shall be governed by, and construed in accordance with, the law of the State of California.

 

  7. Counterparts . This Amendment may be executed simultaneously in two or more separate counterparts, any one of which need not contain the signatures of more than one party, but each of which shall be an original and all of which together shall constitute one and the same agreement binding on all the parties hereto.

[R EMAINDER OF P AGE I NTENTIONALLY L EFT B LANK ]

 

3


IN WITNESS WHEREOF, the undersigned has executed and delivered this Amendment as of the date first written above.

 

MALIBU BOATS, INC.
By:  

/s/ Wayne R. Wilson

  Name: Wayne R. Wilson
  Title: Chief Financial Officer

 

 

 


BLACK CANYON DIRECT INVESTMENT FUND L.P.
  By:   Black Canyon Investments, L.P., its general partner
  By:   Black Canyon Investments LLC, its general partner
  By:   Black Canyon Capital LLC, its managing member

 

By:  

/s/ Michael H. Hooks

  Name: Michael K. Hooks
  Title: Managing Director

Exhibit 10.2

AMENDMENT NUMBER ONE

TO THE

MALIBU BOATS, INC.

LONG-TERM INCENTIVE PLAN

THIS AMENDMENT NUMBER ONE to the Malibu Boats, Inc. Long-Term Incentive Plan (the “Plan”) is effective as of June 24, 2014.

Pursuant to Section 16.2 of the Plan, and effective as of the date set forth above, the Plan is hereby amended as follows:

 

  1. Section 5.4 of the Plan is hereby deleted in its entirety.

 

  2. The following defined terms are hereby deleted from the Plan: Annual Retainer, Board Term, and Election Notice.

 

  3. The last sentence of Section 14.1 is hereby amended to read as follows:

“Notwithstanding any other provision of the Plan to the contrary, (1) Award Agreements shall not be required for any awards issued pursuant to the Company’s Stock-For-Fees Program established under the Company’s Directors’ Compensation Policy or for any Awards that are fully vested on the applicable grant date, and (2) the failure to issue an Award Agreement shall not invalidate an Award.”

Exhibit 10.3

MALIBU BOATS, INC.

DIRECTORS’ COMPENSATION POLICY

(Effective June 30, 2014)

Directors of Malibu Boats, Inc., a Delaware corporation (the “Company”), who are not employed by the Company or one of its subsidiaries (“Outside Directors”) are entitled to the compensation set forth below for their service as a member of the Board of Directors (the “Board”) of the Company. The Board has the right to amend this policy from time to time.

 

Cash Compensation

  

Annual Retainer

   $ 62,500   

Additional Committee Chair Retainers

  

Audit Committee Chair

   $ 10,000   

Compensation Committee Chair

   $ 10,000   

Equity Compensation

  

Annual Equity Award

   $ 62,500   

Cash Compensation

Beginning on the first business day following the date of the closing of the Company’s initial public offering, each Outside Director will be entitled to an annual cash retainer while serving on the Board in the amount set forth above (the “Annual Retainer”). An Outside Director who serves as the Chair of the Audit Committee or the Compensation Committee of the Board will be entitled to an additional annual cash retainer while serving in that position in the applicable amount set forth above (an “Additional Committee Chair Retainer”).

The amounts of the Annual Retainer and Additional Committee Chair Retainers reflected above are expressed as annualized amounts. These retainers will be paid on a quarterly basis, at the end of each quarter in arrears, commencing on June 30, 2014 (which payment shall include compensation for both the initial “short” quarter from February 6, 2014 to March 31, 2014 and the full quarter from April 1, 2014 to June 30, 2014), and will be pro-rated if an Outside Director serves (or serves in the corresponding position, as the case may be) for only a portion of the quarter (with the proration based on the number of calendar days in the quarter that the director served as an Outside Director or held the particular position, as the case may be).

Equity Awards

Initial Equity Awards

Each Outside Director in office on the first business day following the date of the closing of the Company’s initial public offering shall be granted an initial equity award consisting of either fully vested shares of the Company’s common stock or fully vested restricted stock units payable on a deferred basis, as determined in accordance with each Outside Director’s election made prior to the beginning of the Outside Director’s service on the Board. Each Outside Director’s initial equity award shall automatically be granted on June 30, 2014 and shall cover the period from the first business day following the date of the closing of the Company’s initial public offering until the date immediately preceding the annual meeting of the Company’s stockholders that occurs in the 2015 calendar year. The number of shares of common stock or restricted stock units granted as each Outside Director’s initial equity award shall be determined by dividing (1) the Annual Equity Award grant value set forth above (with appropriate pro-rating to take into account the period covered by the award and assuming that the annual meeting of the Company’s stockholders occurs on December 4, 2015) by (2) $14.00, the initial public offering price of a share of the Company’s common stock, with the result rounded down to the nearest whole share or unit.

 

1


For each new Outside Director appointed or elected to the Board prior to the date of the annual meeting of the Company’s stockholders that occurs in the 2015 calendar year, on the date that the new Outside Director first becomes a member of the Board, the new Outside Director will automatically be granted an initial equity award consisting of either fully vested shares of the Company’s common stock or fully vested restricted stock units payable on a deferred basis, as determined in accordance with each Outside Director’s election made prior to the beginning of the Outside Director’s service on the Board. The number of shares of common stock or restricted stock units granted as each new Outside Director’s initial equity award shall be determined by dividing (1) the Annual Equity Award grant value set forth above (with appropriate pro-rating to take into account the period from the date the new Outside Director first becomes a member of the Board until an assumed date of the 2015 annual meeting of the Company’s stockholders of December 4, 2015) by (2) the per-share closing price of the Company’s common stock on the date the new Outside Director first became a member of the Board.

An employee or former employee of the Company or one of its subsidiaries who ceases or has ceased to be so employed and becomes an Outside Director will not be eligible for an initial equity award grant, but will be eligible for cash compensation and annual equity awards on the same basis as other Outside Directors.

Annual Equity Awards for Continuing Board Members

On the date of each annual meeting of the Company’s stockholders beginning with the annual meeting that occurs in the 2015 calendar year, each Outside Director then in office following the meeting will automatically be granted an annual equity award consisting of either fully vested shares of the Company’s common stock or fully vested restricted stock units payable on a deferred basis, as determined in accordance with each Outside Director’s election made in accordance with the Company’s Outside Director Stock-For-Fees Program below (and if no such election is made, the Outside Director’s award will consist of fully vested shares of the Company’s common stock). The number of shares of common stock or restricted stock units granted as each Outside Director’s annual equity award shall be determined by dividing (1) the Annual Equity Award grant value set forth above by (2) the per-share closing price of the Company’s common stock on the date of such annual meeting, with the result rounded down to the nearest whole unit. In the event that more than one annual meeting of the Company’s stockholders occurs during a given fiscal year, annual equity awards will be made only in connection with the first such meeting to occur in that year.

Beginning after the annual meeting of the Company’s stockholders that occurs in the 2015 calendar year, for each new Outside Director appointed or elected to the Board other than on the date of an annual meeting of the Company’s stockholders, on the date that the new Outside Director first becomes a member of the Board, the new Outside Director will automatically be entitled to a pro-rata portion of the annual equity award (a “Pro-Rata Annual Award”) determined by dividing (1) a pro-rata portion of the Annual Equity Award grant value set forth above by (2) the per-share closing price of the Company’s common stock on the date the new Outside Director first became a member of the Board. The pro-rata portion of the Annual Equity Award grant value for purposes of a Pro-Rata Annual Award will equal the Annual Equity Award grant value set forth above multiplied by a fraction (not greater than one), the numerator of which is 12 minus the number of whole months that as of the particular grant date had elapsed since the Company’s last annual meeting of stockholders at which annual equity awards were granted by the Company to Outside Directors, and the denominator of which is 12, with the result to be rounded down to the nearest whole unit. Each Pro-Rata Annual Award will be fully vested on the grant date, and will consist of either fully vested shares of the Company’s common stock or fully vested restricted stock units payable on a deferred basis, as determined in accordance with each Outside Director’s election made in accordance with the Company’s Outside Director Stock-For-Fees Program below (and if no such election is made, the Outside Director’s Pro-Rata Annual Award will consist of fully vested shares of the Company’s common stock).

Provisions Applicable to All Outside Director Equity Awards

Each equity award will be made under and subject to the terms and conditions of the Company’s Long-Term Incentive Plan (the “Plan”) or any successor equity compensation plan approved by the Company’s stockholders and in effect at the time of grant.

Expense Reimbursement

All Outside Directors will be entitled to reimbursement from the Company for their reasonable travel (including airfare and ground transportation), lodging and meal expenses incident to meetings of the Board or committees thereof or in connection with other Board related business.

 

2


Elective Grants of Equity Awards

The Company has established the following Outside Director Stock-For-Fees Program (the “Program”) effective as of the first business day following the date of the closing of the Company’s initial public offering. Pursuant to the Program, Outside Directors may elect that their Annual Retainer and Additional Committee Chair Retainers be converted into either (1) shares of the Company’s common stock or (2) rights to receive an award of stock units under the Plan that will be paid on a deferred basis. Pursuant to the Program, Outside Directors may also elect to receive any initial or annual equity award described above in stock units under the Plan that will be paid on a deferred basis.

The Program is an Appendix to the Plan, and any shares of common stock issued under the Program under the Plan shall be charged against the applicable share limits of the Plan. Except as otherwise expressly provided herein, the provisions of the Plan shall govern all stock units credited and shares issued pursuant to the Program.

An Outside Director may elect to exchange the right to receive payment of all or a portion of his or her Annual Retainer and Additional Committee Chair Retainers payable with respect to a particular calendar year for the right to receive either a grant of (1) shares of common stock or (2) stock units under the Program in lieu of such retainers (or portion thereof, as applicable). An Outside Director may also elect to receive all or a portion of his or her initial or annual equity award described above in stock units under the Plan that will be paid on a deferred basis pursuant to the terms of the Program. Such election shall be made by completing the election form as the Board may prescribe from time to time (an “ Election Form “), and filing such completed form with the Company by the deadline determined below. Once an Election Form is validly filed with the Company, it shall automatically continue in effect for future calendar years unless the Outside Director changes or revokes his or her Election Form prior to the beginning of any such future calendar years.

For calendar 2014, Outside Directors in office on the first business day following the date of the closing of the Company’s initial public offering were required to file their Election Forms with the Company on or prior to the beginning of the Outside Director’s service on the Board. With respect to calendar 2015 and any subsequent calendar year, except as otherwise provided below for new directors, an Outside Director may file an Election Form with the Company on or before December 31 immediately preceding the start of such calendar year or any earlier deadline that may be established with respect to the particular year. Such Election Form shall become irrevocable as of such December 31 and shall be effective with respect to the Annual Retainer and Additional Committee Chair Retainers for the calendar year commencing on the January 1 that next follows such December 31.

Notwithstanding anything to the contrary in the Program, to the extent permissible under Section 409A of the Code, any individual who first becomes an Outside Director after the date hereof and during the first three (3) quarters of a particular calendar year may file an Election Form with the Company no later than thirty (30) days after such individual first becomes an Outside Director. Such Election Form shall be irrevocable and shall be effective with respect to the director’s Annual Retainer and Additional Committee Chair Retainers paid for services rendered during the calendar year in which the Election Form is filed for any quarter in such calendar year that commences after such Election Form is filed with the Company. Such Election Form may also defer payment of the portion of the Outside Director’s initial or annual equity award attributable to services performed after the date the Election Form is filed.

The Annual Retainer and Additional Committee Chair Retainers are paid by the Company on a quarterly basis. Upon the last business day of each quarter of a calendar year for which an Outside Director has made a valid and timely election to receive either shares of common stock or stock units under the Program in lieu of all or a portion of his or her Annual Retainer and Additional Committee Chair Retainers for that quarter (each, a “Crediting Date”), the Company shall automatically grant the Outside Director a number of shares of common stock or stock units, as applicable, determined by dividing (i) the amount of the Exchanged Retainer, by (ii) the per-share closing price of the Company’s common stock on that Crediting Date, with the result rounded down to the nearest whole share or unit. The “Exchanged Retainer” is that portion of the Outside Director’s Annual Retainer and Additional

 

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Committee Chair Retainers that would have otherwise been paid in cash to the Outside Director for his or her service on the Board during that quarter but for his or her election pursuant to the Program. Any fractional amount less than the price of a share of the common stock as of such Crediting Date shall be paid in cash.

Stock units shall be used solely as a device for the determination of the number of shares of common stock eventually to be delivered to an Outside Director upon payment of such stock units. Stock units shall not be treated as property or as a trust fund of any kind. Stock units granted to an Outside Director pursuant to the Program shall be credited to an unfunded bookkeeping account maintained by the Company on behalf of each Outside Director to which the Outside Director’s stock units shall be credited. Not less frequently than annually, the Company shall provide each Outside Director with a current statement of his or her account reflecting all credits of stock units as of such date.

An Outside Director shall have no rights as a stockholder of the Company, no dividend rights (except as expressly provided below with respect to dividend equivalent rights) and no voting rights with respect to stock units credited under the Program and any shares of common stock underlying or issuable in respect of such stock units until such shares are actually issued to and held of record by the Outside Director. No assets have been secured or set aside by the Company with respect to the stock units and, if amounts become payable to an Outside Director pursuant to the Program, the Outside Director’s rights with respect to such amounts shall be no greater than the rights of any general unsecured creditor of the Company.

As of any date that the Company pays an ordinary cash dividend on its Common Stock, the Company shall credit the Outside Director’s account with an additional number of stock units equal to (a) the amount of the ordinary cash dividend paid by the Company on a single share of common stock on that date, multiplied by (b) the number of stock units credited to the Outside Director’s account as of the record date for such ordinary cash dividend (including any stock units previously credited as dividend equivalents and with such total number subject to adjustment pursuant to Section 3.3 of the Plan), divided by (c) the closing price of a share of common stock on that date. No such payment shall be made with respect to any stock units which, as of the record date for such ordinary cash dividend, have been paid pursuant to the payment terms below.

Any stock units credited to an Outside Director’s account under the Program shall be fully vested at all times, and shall be payable in an equivalent number of shares of common stock (either by delivering one or more certificates, registered in the name of the Outside Director, for such shares or by entering such shares in the name of the Outside Director in book-entry form, as determined by the Company in its discretion) upon or as soon as practicable, and in all events within 30 days, following the first to occur of (A) the date of the Outside Director’s Separation from Service or (B) the occurrence of a change in control under the Plan that constitutes a “change in the ownership,” a “change in the effective control,” or a “change in the ownership of a substantial portion of the assets” of the Company within the meaning of the Treasury Regulations promulgated under Section 409A of the Code.

As used herein, a “Separation from Service” occurs when an Outside Director dies, retires, or otherwise has a termination of service with the Company that constitutes a “separation from service” within the meaning of Treasury Regulation Section 1.409A-1(h), without regard to the optional alternative definitions available thereunder. Notwithstanding the foregoing, in the event the Outside Director is a “specified employee” (within the meaning of Treasury Regulation Section 1.409A-1(i)) on the date of the Outside Director’s Separation from Service, the Outside Director shall not be entitled to payment of any stock units credited under the Program that would otherwise be paid in connection with his or her Separation from Service until the earlier of (A) the date which is six (6) months after his or her Separation from Service with the Company for any reason other than death, or (ii) the date of the Outside Director’s death (and, in either case, payment will be made within thirty (30) days following that event); provided that this six-month delay shall apply only to the extent such delay in payment is required to comply with, and avoid the imputation of any tax, penalty or interest under, Section 409A of the Code.

Shares issued under the Program and stock units credited under the Program shall be subject to the terms of the Plan. Shares of common stock issued with respect to the Program may be issued under the Plan or may be issued under any other authority of the Company. Notwithstanding the foregoing provisions, in the event that the Company is not able to issue shares of Common Stock in payment of any stock units credited under the Program, such stock units shall be settled by payment in cash equal to the applicable number of stock units not eligible to be paid in shares, multiplied by the fair market value of a share of common stock on the date the stock units are paid.

 

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Notwithstanding anything contained in the Program or in the Plan to the contrary, prior to the time the stock units are paid, neither the stock units nor any interest therein or amount payable in respect thereof may be sold, assigned, transferred, pledged or otherwise disposed of, alienated or encumbered, either voluntarily or involuntarily, other than by will or the laws of descent and distribution. The Program, including any Election Forms filed hereunder, shall be construed and interpreted to comply with Section 409A of the Code.

 

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Exhibit 10.4

Malibu Boats Holdings, LLC

June 26, 2014

Ritchie Anderson

Malibu Boats Holdings, LLC

5075 Kimberly Way

Loudon, Tennessee 37774

 

  Re: Amendment of Vesting Schedule for LLC Units

Dear Ritchie:

On October 4, 2011, Malibu Boats Holdings, LLC (the “LLC”) awarded you a total of 215,150 Class M Units of the Company, which were converted into 83,515 Units of the Company in connection with the initial public offering (the “IPO”) of shares of Class A Common Stock of Malibu Boats, Inc. (“Malibu Boats”). Of these 83,515 Units, 41,757 Units (the “Unvested 2011 Units”) currently remain unvested units that are subject to the vesting conditions specified in the Class M Membership Unit Agreement evidencing your original award dated October 4, 2011 (as amended, the “2011 Award Agreement”).

Similarly, on November 1, 2013, the LLC awarded you a total of 427,750.00 Class M Units of the Company, which were converted into 76,601 Units of the Company in connection with the IPO. All of these 76,601 Units (the “Unvested 2013 Units”) currently remain unvested units that are subject to the vesting conditions specified in the Class M Membership Unit Agreement evidencing your original award dated November 1, 2013 (as amended, the “2013 Award Agreement”).

The LLC is pleased to inform you that Malibu Boats, in its capacity as the Managing Member of the LLC, has approved amendments to the vesting conditions applicable to the Unvested 2011 Units and Unvested 2013 Units. Malibu Boats has approved the following amendments to the vesting terms of your Unvested 2011 Units and Unvested 2013 Units:

Unvested 2011 Units

20,879 of your Unvested 2011 Units are currently scheduled to vest on July 1, 2014. Subject to your continued employment through the vesting date, these 20,879 Unvested 2011 Units will now vest on the earlier of (1) July 1, 2014 and (2) the day that is immediately prior to Malibu Boats’ completion of a follow-on offering of shares of Malibu Boats’ Class A Common Stock (the “Follow-On Offering”).

Unvested 2013 Units

Your 76,601 Unvested 2013 Units are currently scheduled to vest in three substantially equal annual installments on September 30, 2014, September 30, 2015 and September 30, 2016. Subject to your continued employment through the vesting date, the 25,534 Unvested 2013 Units scheduled to vest on September 30, 2014 will now vest as follows (1) 20,300 Units will vest on the earlier of (a) July 1, 2014 and (2) the day that is immediately prior to the Follow-On Offering, while (2) the remaining 5,234 Units will vest on September 30, 2014. There is no change to the vesting schedule for the tranches of Unvested 2013 Units scheduled to vest on September 30, 2015 and September 30, 2016.

Your 2011 Award Agreement and 2013 Award Agreement are hereby amended to reflect the foregoing changes to the vesting terms of your Unvested 2011 Units and Unvested 2013 Units. Except as


specifically amended by this letter, your Unvested 2011 Units and Unvested 2013 Units remain subject to all of the terms and conditions of your 2011 Award Agreement and 2013 Award Agreement, as applicable, and the terms of the LLC’s Amended and Restated Limited Liability Company Agreement.

Please sign and return a copy of this letter to the LLC to indicate your agreement with its terms.

 

Very truly yours,
/s/ Wayne Wilson
Wayne Wilson
Chief Financial Officer

Acknowledged and Agreed:

 

By:  

/s/ Ritchie L. Anderson

  Ritchie L. Anderson

 

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