Exhibit 10.1
GUESS ?, INC.
2006 NON-EMPLOYEE DIRECTORS’
STOCK GRANT AND STOCK OPTION PLAN
(As Amended and Restated Effective September 28,
2007)
1.
Establishment; Purpose of the Plan.
The Company
maintains the Guess?, Inc. 2006 Non-Employee Directors’ Stock
Grant and Stock Option Plan, which was approved by the
Company’s stockholders on May 9, 2006 and was subsequently
amended on July 11, 2006.(1) The Company hereby amends and
restates the Plan effective as of September 28, 2007 (the “
Restatement Date ”). Effective as of the Restatement
Date, no additional Options will be granted under the Plan unless
otherwise provided by the Board. The purpose of this Plan is to
enable the Company to attract and retain as non-employee directors
individuals with superior training, experience and ability and to
provide additional incentive to such Eligible Directors by giving
them an opportunity to participate in the ownership of the
Company.
2.
Definitions.
For purposes of
the Plan, the following terms shall be defined as set forth
below:
“
Affiliate ” and “ Associate
” have the respective meanings ascribed to such terms in
Rule 12b-2 promulgated under the Exchange Act.
“
Award ” means any award of an Option or Restricted
Stock, or any combination thereof, authorized by and granted under
this Plan.
“
Award Agreement ” means a written document
issued by the Company to a Participant setting forth the terms and
conditions of an Award that has been granted under the
Plan.
“
Beneficial Owner ” has the meaning ascribed to such
term in Rule 13d-3 promulgated under the Exchange
Act.
“
Board ” means the Board of Directors of the
Company.
“
Code ” means the Internal Revenue Code of 1986, as
amended from time to time, and any successor thereto.
“
Combined Voting Power ” means the combined voting
power of the Company’s then outstanding voting
securities.
(1) The Company
maintained the Guess?, Inc. 1996 Non-Employee Directors’
Stock Grant and Stock Option Plan (As Amended and Restated
Effective June 20, 2005), which was originally adopted as the
Guess?, Inc. 1996 Non-Employee Directors’ Stock Option Plan
on July 30, 1996. Effective May 9, 2006, the Company amended
and restated such plan in its entirety as the Guess?, Inc.
2006 Non-Employee Directors’ Stock Grant and Stock Option
Plan.
“ Common
Stock ” means the Common Stock of the Company, par value
$.01 per share.
“
Company ” means Guess ?, Inc., a Delaware
corporation, including any wholly owned Subsidiary or affiliate, or
any successor organization.
“
Disability ” means permanent and total disability
within the meaning of Section 22(e)(3) of the Code.
“
Eligible Director ” means a person who is a member of
the Board and who is not an employee of the Company.
“
Eligibility Date ” means the first business day of
each of the Company’s fiscal years, commencing with the first
fiscal year that commences in 2007, while this Plan is in
effect.
“
Exchange Act ” means the Securities Exchange Act of
1934, as amended.
“ Fair
Market Value ” means, on any given date, the closing
price of the shares of Common Stock, as reported on the New York
Stock Exchange for such date or, if Common Stock was not traded on
such date, on the next preceding day on which Common Stock was
traded; provided that if the Common Stock is not then traded on the
New York Stock Exchange, Fair Market Value means the fair market
value thereof as of the relevant date of determination as
determined in accordance with a valuation methodology approved by
the Board.
“
Option ” means any option to purchase shares of the
Common Stock of the Company granted pursuant to this
Plan.
“
Parent ” means any corporation which is a
“parent corporation” within the meaning of
Section 424(e) of the Code with respect to the Surviving
Entity.
“
Participant ” means an Eligible Director who has been
granted an Award under this Plan.
“
Person ” means any person or “group”
within the meaning of Section 13(d)(3) or
Section 14(d)(2) of the Exchange Act.
“
Plan ” means the Guess ?, Inc. 2006 Non-Employee
Directors’ Stock Grant and Stock Option Plan (formerly the
Guess?, Inc. 1996 Non-Employee Director’ Stock Grant and
Stock Option Plan), as hereinafter amended from time to
time.
“
Restatement Date ” has the meaning given to such term
in Section 1.
“
Rules ” means the regulations promulgated by the
Securities and Exchange Commission under Section 16 of the
Exchange Act, as amended from time to time.
“
Shareholder Approval Date ” means May 9,
2006.
“
Subsidiary ” means (i) any corporation which is a
“subsidiary corporation” within the meaning of
Section 424(f) of the Code with respect to the Company or
(ii) any other corporation
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or other entity in
which the Company, directly or indirectly, has an equity or similar
interest and which the Board designates as a subsidiary for
purposes of the Plan.
“
Surviving Entity ” has the meaning ascribed to it in
Section 10(b) hereof.
Except where
otherwise indicated by the context, any masculine terminology used
herein shall also include the feminine and vice versa, and the
definition of any term herein in the singular shall also include
the plural and vice versa.
3.
Shares Subject to the Plan.
Except as provided
in Section 9, the aggregate number of shares of Common Stock
that may be issued under the Plan is 2,000,000(2). Such shares may
include authorized but unissued shares of Common Stock, treasury
shares or a combination of both. In the event the number of shares
of Common Stock issued under the Plan and the number of shares of
Common Stock subject to outstanding Awards equals the maximum
number of shares of Common Stock authorized under the Plan, no
further awards shall be made unless the Plan is amended (in
accordance with the Rules, if necessary) or additional shares of
Common Stock become available for further awards under the Plan.
Shares of Common Stock that are subject to Options granted under
the Plan that terminate, expire or are canceled without having been
exercised, and any restricted shares of Common Stock subject to a
Restricted Stock Award that are forfeited, cancelled, or for any
other reason do not vest shall again be available for subsequent
Awards under the Plan.
4.
Administration of the Plan.
(a)
Administration. The Plan shall be administered by the Board.
Subject to the provisions of the Plan, and notwithstanding the
intent that the Award grants under the Plan be self-effectuating to
the maximum extent possible, the Board shall be authorized to:
(i)
adopt, revise and repeal such administrative rules, guidelines and
practices governing this Plan as it shall from time to time deem
advisable;
(ii)
interpret the terms and provisions of the Plan and any Award issued
under the Plan (and any agreements relating thereto), and otherwise
settle all claims and disputes arising under the Plan;
(iii)
delegate responsibility and authority for the operation and
administration of the Plan, appoint employees and officers of the
Company to act on its behalf, and employ persons to assist in the
fulfilling of its responsibilities under the Plan; and
(2) The aggregate
share limit of 2,000,000 shares of Common Stock consists of (a) the
500,000 shares of Common Stock that were initially approved for
issuance under the Plan upon its original adoption by the Board on
July 30, 1996 plus (b) an additional 500,000 shares of Common
Stock that were approved for issuance under the Plan by the Board
on April 7, 2006, subject to approval by the Company’s
shareholders at the 2006 Annual Meeting of Shareholders plus (c) an
additional 1,000,000 shares as were necessary to reflect the
Company’s two-for-one stock split effected in the form of a
100% stock dividend as approved by the Board on February 12, 2007
and distributed March 12, 2007.
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(iv)
otherwise supervise the administration of the Plan; provided,
however, that the Board shall have no discretion with respect to
the selection of Eligible Directors to receive Awards hereunder,
the number of shares of Common Stock covered by such Award or the
price or timing of any Awards granted hereunder; provided further
that any action by the Board relating to the Plan will be taken
only if approved by the affirmative vote of a majority of the
directors who are not then eligible to participate under the
Plan.
(b)
Delegation to a Committee. The Board may delegate to a
committee of the Board any or all of its authority for
administration of the Plan and, if such delegation occurs, all
references to the Board in this Plan shall be deemed references to
the committee to the extent provided in the resolution establishing
the committee.
5.
Restricted Stock Grants
(a)
Annual Award Grants. On each Eligibility Date after the
Restatement Date, each Eligible Director who has not been an
employee of the Company at any time during the immediately
preceding 12 months shall be granted a Restricted Stock Award for a
number of restricted shares of Common Stock equal to $180,000
divided by the Fair Market Value of a share of Common Stock on the
date of grant.
(b)
Restricted Stock Awards. Stock certificates or book entries
evidencing shares of restricted stock subject to a Restricted Stock
Award pending the lapse of the restrictions shall bear a legend or
notation making appropriate reference to the restrictions imposed
hereunder and, if so provided by the Board, (if in certificate
form) shall be held by the Company or by a third party designated
by the Board until the restrictions on such shares shall have
lapsed and the shares shall have vested in accordance with the
provisions of the Award and the provisions hereof. Restricted Stock
Awards will be evidenced by an Award Agreement containing such
terms and conditions which are not inconsistent with the terms of
the Plan.
(c)
Vesting . Each Restricted Stock Award granted under this
Section 8 shall become vested as to 100% of the total number
of shares of Common Stock subject thereto upon the first to occur
of (i) the first anniversary of the date of grant or
(ii) a termination of service on the Board if such Eligible
Director has completed a full term of service and he or she does
not stand for re-election at the completion of such term. Promptly
after the vesting date and satisfaction of all applicable
restrictions, a certificate or certificates evidencing the number
of the shares of Common Stock as to which the restrictions have
lapsed shall be delivered to the Participant holding the Award (to
the extent that the certificate(s) had not previously been
delivered). Certificates evidencing vested shares and any other
amounts deliverable in respect thereof shall be delivered and paid
only to the Participant or his or her personal representative, as
the case may be.
(d)
Transfer Restrictions. Prior to the time that they have
become vested, neither the restricted shares comprising any
Restricted Stock Award, nor any interest therein, amount payable in
respect thereof, or Restricted Property (as defined in 8(e)), may
be sold, assigned, transferred, pledged or otherwise disposed of,
alienated or encumbered, either voluntarily or involuntarily. The
transfer restrictions in the preceding sentence shall not apply to
(i) transfers to the Company, (ii) the designation of a
beneficiary to receive benefits in the event of the Eligible
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