exv10w4






Exhibit 10.4




QUIKSILVER, INC.

EMPLOYEE STOCK PURCHASE PLAN1




(As amended and restated February 5, 2009)




     1. PURPOSE OF THE PLAN



     This Employee Stock Purchase Plan is intended to promote the interests of Quiksilver, Inc., a
Delaware corporation, by providing eligible employees with the opportunity to acquire a proprietary
interest in the Corporation through participation in a payroll-deduction based employee stock
purchase plan designed to qualify under Section 423 of the Code.



     Capitalized terms herein shall have the meanings assigned to such terms in the attached
Appendix.



     This February 5, 2009 amendment and restatement shall become effective upon approval of such
amendment and restatement by the Corporation’s stockholders at the 2009 Annual Meeting of
Stockholders. In the event such stockholder approval is not obtained, then the revisions to the
Plan effected by this amendment and restatement shall have no force and effect; however, the
Employee Stock Purchase Plan shall continue in effect in accordance with the terms and provisions
of the plan in effect on the date prior to this amendment and restatement.



     2. ADMINISTRATION OF THE PLAN



     The Plan Administrator shall have full authority to interpret and construe any provision of
the Plan and to adopt such rules and regulations for administering the Plan as it may deem
necessary to comply with the requirements of Code Section 423. Decisions of the Plan Administrator
shall be final and binding on all parties having an interest in the Plan.



     3. STOCK SUBJECT TO PLAN



          A. The stock purchasable under the Plan shall be shares of authorized but unissued or
reacquired Common Stock, including shares of Common Stock purchased on the open market. The number
of shares of Common Stock reserved for issuance over the term of the Plan shall be limited to
3,700,000 shares. Such share reserve consists of (i) 800,000 shares approved by the Corporation’s
stockholders in connection with the initial adoption of the Plan, (ii) an increase of 900,000
shares approved by the Corporation’s stockholders on March 16, 2007 and (iii) an increase of
2,000,000 shares for which approval by the Corporation’s stockholders will be sought at the 2009
Annual Meeting of Stockholders.




          B. Should any change be made to the Common Stock by reason of any stock split, stock dividend,
recapitalization, combination of shares, exchange of shares or other change






 




			
	1	 	All share amounts in this document have been revised to
reflect a 2 for 1 stock split effected through a stock dividend on April 30,
2003 and a 2 for 1 stock split effected through a stock dividend on April 27,
2005.




 









 









affecting the outstanding Common Stock as a class without the Corporation’s receipt of
consideration, appropriate adjustments shall be made to (i) the maximum number and class of
securities issuable under the Plan, (ii) the maximum number and class of securities purchasable per
Participant on any one Purchase Date, (iii) the maximum number and class of securities purchasable
by all Participants in the aggregate on any one Purchase Date, and (iv) the number and class of
securities and the price per share in effect under each outstanding purchase right. The
adjustments shall be made in such manner as the Plan Administrator deems appropriate to prevent the
dilution or enlargement of benefits under the Plan and the outstanding purchase rights, and such
adjustments shall be final, binding and conclusive.




     4. PURCHASE PERIODS



     Shares of Common Stock shall be offered for purchase under the Plan through a series of
successive Purchase Periods until such time as (i) the maximum number of shares of Common Stock
available for issuance under the Plan shall have been purchased or (ii) the Plan shall have been
sooner terminated.



     5. ELIGIBILITY



          A. Each individual who is an Eligible Employee on the start date of any Purchase Period under
the Plan may enter that Purchase Period on such start date.



          B. To participate in the Plan for a particular Purchase Period, the Eligible Employee must
complete the enrollment forms prescribed by the Plan Administrator (including a stock purchase
agreement and a payroll deduction authorization) and file such forms with the Plan Administrator
(or its designate) in advance of that Purchase Period and in accordance with such terms and
conditions as the Plan Administrator may impose.



     6. PAYROLL DEDUCTIONS



          A. The payroll deduction authorized by the Participant for purposes of acquiring shares of
Common Stock during a Purchase Period may be any multiple of one percent (1%) of the Base Salary
paid to the Participant during the Purchase Period, up to a maximum of fifteen percent (15%). The
deduction rate so authorized shall continue in effect, except to the extent such rate is changed in
accordance with the following guidelines:




               (i) The Participant may, at any time during the Purchase Period, reduce his or her rate of
payroll deduction to become effective as soon as possible after filing the appropriate form with
the Plan Administrator. The Participant may not, however, effect more than one (1) such reduction
per Purchase Period.



               (ii) The Participant may, prior to the commencement of any new Purchase Period, increase the
rate of his or her payroll deduction by filing the appropriate form with the Plan Administrator.
The new rate (which may not exceed the fifteen percent (15%) maximum) shall become effective on the
start date of the first Purchase Period following the filing of such form.



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          B. Payroll deductions shall begin on the first pay day administratively feasible following the
beginning of the Purchase Period and shall (unless sooner terminated by the Participant) continue
through the pay day ending with or immediately prior to the last day of that Purchase Period. The
amounts so collected shall be credited to the Participant’s book account under the Plan, but no
interest shall be paid on the balance from time to time outstanding in such account. The amounts
collected from the Participant shall not be required to be held in any segregated account or trust
fund and may be commingled with the general assets of the Corporation and used for general
corporate purposes.




          C. Payroll deductions shall automatically cease upon the termination of the Participant’s
purchase right in accordance with the provisions of the Plan.




          D. The Participant’s acquisition of Common Stock under the Plan on any Purchase Date shall
neither limit nor require the Participant’s acquisition of Common Stock on any subsequent Purchase
Date.




     7. PURCHASE RIGHTS



          A. GRANT OF PURCHASE RIGHT. A Participant shall be granted a separate purchase right for each
Purchase Period in which he or she participates. The purchase right shall be granted on the first
business day of the Purchase Period and shall provide the Participant with the right to purchase
shares of Common Stock upon the terms set forth below. The Participant shall execute a stock
purchase agreement embodying such terms and such other provisions (not inconsistent with the Plan)
as the Plan Administrator may deem advisable.




     Under no circumstances shall purchase rights be granted under the Plan to any Eligible
Employee if such individual would, immediately after the grant, own (within the meaning of Code
Section 424(d)) or hold outstanding options or other rights to purchase, stock possessing five
percent (5%) or more of the total combined voting power or value of all classes of stock of the
Corporation or any Corporate Affiliate.



          B. EXERCISE OF THE PURCHASE RIGHT. Each purchase right shall be automatically exercised on
each successive Purchase Date, and shares of Common Stock shall accordingly be purchased on behalf
of each Participant on each such Purchase Date. The purchase shall be effected by applying the
Participant’s payroll deductions for the Purchase Period ending on such Purchase Date to the
purchase of whole shares of Common Stock at the purchase price in effect for the Participant for
that Purchase Date.




          C. PURCHASE PRICE. The purchase price per share at which Common Stock will be purchased on the
Participant’s behalf on each Purchase Date shall be equal to eighty-five percent (85%) of the lower
of (i) the Fair Market Value per share of Common Stock on the first business day of the Purchase
Period or (ii) the Fair Market Value per share of Common Stock on that Purchase Date.




          D. NUMBER OF PURCHASABLE SHARES. The number of shares of Common Stock purchasable by a
Participant on each Purchase Date shall be the number of whole shares obtained by dividing the
amount collected from the Participant through payroll deductions during the Purchase Period ending
with that Purchase Date by the purchase price in




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effect for the Participant for that Purchase Date. However, the maximum number of shares of
Common Stock purchasable per Participant on any one Purchase Date shall not exceed 4,000 shares,
subject to periodic adjustments in the event of certain changes in the Corporation’s
capitalization. In addition, the maximum number of shares of Common Stock purchasable in the
aggregate by all Participants on any one Purchase Date shall not exceed 400,000 shares, subject to
periodic adjustments in the event of certain changes in the Corporation’s capitalization. However,
the Plan Administrator shall have the discretionary authority, exercisable prior to the start of
any Purchase Period under the Plan, to increase or decrease the limitations to be in effect for the
number of shares purchasable per Participant and in the aggregate by all Participants on each
Purchase Date.




          E. EXCESS PAYROLL DEDUCTIONS. Any payroll deductions not applied to the purchase of shares of
Common Stock on any Purchase Date because they are not sufficient to purchase a whole share of
Common Stock shall be held for the purchase of Common Stock on the next Purchase Date. However, any
payroll deductions not applied to the purchase of Common Stock by reason of the limitation on the
maximum number of shares purchasable per Participant or in the aggregate on the Purchase Date shall
be promptly refunded.




          F. TERMINATION OF PURCHASE RIGHT. The following provisions shall govern the termination of
outstanding purchase rights:





          (A) A Participant may, at any time prior to the next scheduled Purchase Date,
terminate his or her outstanding purchase right by filing the appropriate form with
the Plan Administrator (or its designate), and no further payroll deductions shall
be collected from the Participant with respect to the terminated purchase right. Any
payroll deductions collected during the Purchase Period in which such termination
occurs shall, at the Participant’s election, be immediately refunded or held for the
purchase of shares on the next Purchase Date. If no such election is made at the
time such purchase right is terminated, then the payroll deductions collected with
respect to the terminated right shall be refunded as soon as possible.




          (B) The termination of such purchase right shall be irrevocable, and the
Participant may not subsequently rejoin the Purchase Period for which the terminated
purchase right was granted. In order to resume participation in any subsequent
Purchase Period, such individual must re-enroll in the Plan (by making a timely
filing of the prescribed enrollment forms).




          (C) Should the Participant cease to remain an Eligible Employee for any reason
(including death, disability or change in status) while his or her purchase right
remains outstanding, then that purchase right shall immediately terminate, and all
of the Participant’s payroll deductions for the Purchase Period in which the
purchase right so terminates shall be immediately refunded. However, should the
Participant cease to remain in active service by reason of an approved unpaid leave
of absence, then the Participant shall have the right, exercisable up until the last
business day of the Purchase Period in which such leave commences, to (a) withdraw
all the payroll deductions collected to



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date on his or her behalf for that Purchase Period or (b) have such funds held
for the purchase of shares on his or her behalf on the next scheduled Purchase Date.
In no event, however, shall any further payroll deductions be collected on the
Participant’s behalf during such leave. Upon the Participant’s return to active
service (x) within ninety (90) days following the commencement of such leave or (y)
prior to the expiration of any longer period for which such Participant’s right to
reemployment with the Corporation is guaranteed by statute or contract, his or her
payroll deductions under the Plan shall automatically resume at the rate in effect
at the time the leave began, unless the Participant withdraws from the Plan prior to
his or her return. An individual who returns to active employment following a leave
of absence which exceeds in duration the applicable (x) or (y) time period will be
treated as anew Employee for purposes of subsequent participation in the Plan and
must accordingly re- enroll in the Plan (by making a timely filing of the prescribed
enrollment forms).



          G. CHANGE IN CONTROL. Each outstanding purchase right shall automatically be exercised,
immediately prior to the effective date of any Change in Control, by applying the payroll
deductions of each Participant for the Purchase Period in which such Change in Control occurs to
the purchase of whole shares of Common Stock at a purchase price per share equal to eighty-five
percent (85%) of the lower of (i) the Fair Market Value per share of Common Stock on the first
business day of the Purchase Period in which such Change in Control occurs or (ii) the Fair Market
Value per share of Common Stock immediately prior to the effective date of such Change in Control.
However, the applicable limitation on the number of shares of Common Stock purchasable per
Participant shall continue to apply to any such purchase, but not the limitation applicable to the
maximum number of shares of Common Stock purchasable in the aggregate by all participants.




     The Corporation shall use its best efforts to provide at least ten (10)-days prior written
notice of the occurrence of any Change in Control, and Participants shall, following the receipt of
such notice, have the right to terminate their outstanding purchase rights prior to the effective
date of the Change in Control.



          H. PRORATION OF PURCHASE RIGHTS. Should the total number of shares of Common Stock to be
purchased pursuant to outstanding purchase rights on any particular date exceed the number of
shares then available for issuance under the Plan, the Plan Administrator shall make a pro-rata
allocation of the available shares on a uniform and nondiscriminatory basis, and the payroll
deductions of each Participant, to the extent in excess of the aggregate purchase price payable for
the Common Stock pro-rated to such individual, shall be refunded.




          I. ASSIGNABILITY. The purchase right shall be exercisable only by the Participant and shall
not be assignable or transferable by the Participant.




          J. STOCKHOLDER RIGHTS. A Participant shall have no stockholder rights with respect to the
shares subject to his or her outstanding purchase right until the shares are purchased on the
Participant’s behalf in accordance with the provisions of the Plan and the Participant has become a
holder of record of the purchased shares.




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     8. ACCRUAL LIMITATIONS



          A. No Participant shall be entitled to accrue rights to acquire Common Stock pursuant to any
purchase right outstanding under this Plan if and to the extent such accrual, when aggregated with
(i) rights to purchase Common Stock accrued under any other purchase right granted under this Plan
and (ii) similar rights accrued under other employee stock purchase plans (within the meaning of
Code Section 423) of the Corporation or any Corporate Affiliate, would otherwise permit such
Participant to purchase more than Twenty-Five Thousand Dollars ($25,000.00) worth of stock of the
Corporation or any Corporate Affiliate (determined on the basis of the Fair Market Value per share
on the date or dates such rights are granted) for each calendar year such rights are at any time
outstanding.




          B. For purposes of applying such accrual limitations to the purchase rights granted under the
Plan, the following provisions shall be in effect:




               (i) The right to acquire Common Stock under each outstanding purchase right shall accrue on
each successive Purchase Date on which such right remains outstanding.



               (ii) No right to acquire Common Stock under any outstanding purchase right shall accrue to the
extent the Participant has already accrued in the same calendar year the right to acquire Common
Stock under one or more other purchase rights at a rate equal to Twenty-Five Thousand Dollars
($25,000.00) worth of Common Stock (determined on the basis of the Fair Market Value per share on
the date or dates of grant) for each calendar year such rights were at any time outstanding.



          C. If by reason of such accrual limitations, any purchase right of a Participant does not
accrue for a particular Purchase Period, then the payroll deductions which the Participant made
during that Purchase Period with respect to such purchase right shall be promptly refunded.




          D. In the event there is any conflict between the provisions of this Article and one or more
provisions of the Plan or any instrument issued thereunder, the provisions of this Article shall be
controlling.




     9. EFFECTIVE DATE AND TERM OF THE PLAN



          A. The Plan was originally adopted by the Board on February 15, 2000 and became effective at
the Effective Time. This amendment and restatement was adopted by the Board on February 5, 2009
and shall become effective upon approval thereof by the Corporation’s stockholders at the 2009
Annual Meeting of Stockholders. In no event, however, shall any payroll deductions be collected or
purchase rights be exercised, and no shares of Common Stock shall be issued, pursuant to this
February 5, 2009 amendment and restatement unless the Corporation is at the time in compliance with
all applicable requirements of the 1933 Act (including the registration of the shares of Common
Stock issuable under the Plan on an appropriate form filed with the Securities and Exchange
Commission), all applicable listing requirements of any stock exchange on which the Common Stock is
listed for trading and all other applicable requirements established by law or regulation.




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          B. Unless sooner terminated by the Board, the Plan shall terminate upon the earliest of (i)
February 5, 2019, (ii) the date on which all shares available for issuance under the Plan shall
have been sold pursuant to purchase rights exercised under the Plan or (iii) the date on which all
purchase rights are exercised in connection with a Change in Control. No further purchase rights
shall be granted or exercised, and no further payroll deductions shall be collected, under the Plan
following such termination.




     10. AMENDMENT/TERMINATION OF THE PLAN



          A. The Board may alter, amend, suspend or terminate the Plan at any time to become effective
immediately following the close of any Purchase Period.




          B. In no event may the Board effect any of the following amendments or revisions to the Plan
without the approval of the Corporation’s stockholders: (i) increase the number of shares of Common
Stock issuable under the Plan, except for permissible adjustments in the event of certain changes
in the Corporation’s capitalization, (ii) alter the purchase price formula so as to reduce the
purchase price payable for the shares of Common Stock purchasable under the Plan or (iii) modify
the eligibility requirements for participation in the Plan.




     11. GENERAL PROVISIONS



          A. All costs and expenses incurred in the administration of the Plan shall be paid by the
Corporation; however, each Plan Participant shall bear all costs and expenses incurred by such
individual in the sale or other disposition of any shares purchased under the Plan.




          B. Nothing in the Plan shall confer upon the Participant any right to continue in the employ
of the Corporation or any Corporate Affiliate for any period of specific duration or interfere with
or otherwise restrict in any way the rights of the Corporation (or any Corporate Affiliate
employing such person) or of the Participant, which rights are hereby expressly reserved by each,
to terminate such person’s employment at any time for any reason, with or without cause.




          C. The provisions of the Plan shall be governed by the laws of the State of California without
resort to that State’s conflict-of-laws rules.




          D. The Corporation shall have the right to take whatever steps the Plan Administrator deems
necessary or appropriate to comply with all applicable federal, state, local and employment tax
withholding requirements, and the Corporation’s obligations to deliver shares under this Plan shall
be conditioned upon compliance with all such withholding tax requirements. Without limiting the
generality of the foregoing, the Corporation shall have the right to withhold taxes from any other
compensation or other amounts that it may owe to the Participant, or to require the Participant to
pay to the Corporation the amount of any taxes that the Corporation may be required to withhold
with respect to such shares. The Plan Administrator may require the Participant to notify the Plan
Administrator or the Corporation before the Participant sells or otherwise disposes of any shares
acquired under the Plan.





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APPENDIX




     The following definitions shall be in effect under the Plan:



     A. BASE SALARY shall mean the regular base salary paid to a Participant by one or more
Participating Companies during such individual’s period of participation in one or more Purchase
Periods under the Plan. Base Salary shall be calculated before deduction of (A) any income or
employment tax withholdings or (B) any and all contributions made by the Participant to any Code
Section 401(k) salary deferral plan or Code Section 125 cafeteria benefit program now or hereafter
established by the Corporation or any Corporate Affiliate. Base Salary shall NOT include (i) any
overtime payments, bonuses, commissions, profit-sharing distributions and other incentive- type
payments received during the period of participation in the Plan and (ii) any contributions made on
the Participant’s behalf by the Corporation or any Corporate Affiliate to any employee benefit or
welfare plan now or hereafter established (other than Code Section 401(k) or Code Section 125
contributions deducted from Base Salary).



     B. BOARD shall mean the Corporation’s Board of Directors.



     C. CHANGE IN CONTROL shall mean a change in ownership or control of the Corporation effected
through any of the following transactions:



          (i) a stockholder-approved merger or consolidation in which securities possessing more than
fifty percent (50%) of the total combined voting power of the Corporation’s outstanding securities
are transferred to a person or persons different from the persons holding those securities
immediately prior to such transaction, or




          (ii) a stockholder-approved sale, transfer or other disposition of all or substantially all of
the assets of the Corporation in complete liquidation or dissolution of the Corporation, or




          (iii) the acquisition, directly or indirectly by any person or related group of persons (other
than the Corporation or a person that directly or indirectly controls, is controlled by or is under
common control with the Corporation) of beneficial ownership (within the meaning of Rule 13d-3 of
the Securities Exchange Act of 1934) of securities possessing more than fifty percent (50%) of the
total combined voting power of the Corporation’s outstanding securities pursuant to a tender or
exchange offer made directly to the Corporation’s stockholders or pursuant to a private transaction
or series of related transactions with one or more of the Corporation’s stockholders.




     D. CODE shall mean the Internal Revenue Code of 1986, as amended.



     E. COMMON STOCK shall mean the Corporation’s common stock.



     F. CORPORATE AFFILIATE shall mean any parent or subsidiary corporation of the Corporation (as
determined in accordance with Code Section 424), whether now existing or subsequently established.



 









 





     G. CORPORATION shall mean 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.



     H. EFFECTIVE TIME shall mean July 1, 2000. Any Corporate Affiliate which becomes a
Participating Corporation after such Effective Time shall designate a subsequent Effective Time
with respect to its employee-Participants.



     I. ELIGIBLE EMPLOYEE shall mean any person who is employed by a Participating Corporation on a
basis under which he or she is regularly expected to render more than twenty (20) hours of service
per week for more than five (5) months per calendar year for earnings considered wages under Code
Section 3401(a).



     J. FAIR MARKET VALUE per share of Common Stock on any relevant date shall be determined in
accordance with the following provisions:



          (i) If the Common Stock is at the time traded on the Nasdaq Global Select Market (or the
Nasdaq Global Market), then the Fair Market Value shall be the closing selling price per share of
Common Stock at the close of regular trading hours (i.e., before after-hours trading begins) on the
Nasdaq Global Select Market (or the Nasdaq Global Market) on the date in question, as such price is
reported by The Wall Street Journal. If there is no closing selling price for the Common Stock on
the date in question, then the Fair Market Value shall be the closing selling price on the last
preceding date for which such quotation exists.




          (ii) If the Common Stock is at the time listed on any other Stock Exchange, then the Fair
Market Value shall be the closing selling price per share of Common Stock at the close of regular
trading hours (i.e., before after-hours trading begins) on the date in question on the Stock
Exchange determined by the Plan Administrator to be the primary market for the Common Stock, as
such price is officially quoted in the composite tape of transactions on such exchange. If there is
no closing selling price for the Common Stock on the date in question, then the Fair Market Value
shall be the closing selling price on the last preceding date for which such quotation exists.




     K. 1933 ACT shall mean the Securities Act of 1933, as amended.



     L. PARTICIPANT shall mean any Eligible Employee of a Participating Corporation who is actively
participating in the Plan.



     M. PARTICIPATING CORPORATION shall mean the Corporation and such Corporate Affiliate or
Affiliates as may be authorized from time to time by the Board to extend the benefits of the Plan
to their Eligible Employees. The Participating Corporations in the Plan as of February 5, 2009 are
listed in attached Schedule A.



     N. PLAN shall mean the Corporation’s amended and restated Employee Stock Purchase Plan, as set
forth in this document.



     O. PLAN ADMINISTRATOR shall mean the committee of two (2) or more Board members appointed by
the Board to administer the Plan.



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     P. PURCHASE DATE shall mean the last business day of each Purchase Period. The initial
Purchase Date shall be December 29, 2000.



     Q. PURCHASE PERIOD shall mean each successive approximate six (6)-month period, beginning on
the first business day in each of July and January and ending on the last business day in each of
June and December of each year, at the end of which there shall be purchased shares of Common Stock
on behalf of each Participant.



     R. STOCK EXCHANGE shall mean the American Stock Exchange, the Nasdaq Global Select Market, the
Nasdaq Global Market or the New York Stock Exchange.



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Schedule A




Corporations Participating in

Employee Stock Purchase Plan

As of the Effective Time