Exhibit 10(a)


 


SECOND
AMENDMENT TO THE

PARTICIPATION AGREEMENT UNDER THE

HAGGAR CORP. SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN


 


This Second Amendment (“Second
Amendment”) to the Participation Agreement under the Supplemental Executive
Retirement Plan by and between Haggar Clothing Co., a Nevada corporation, and
Joseph M. Haggar, III (the “Participant”) dated as of October 1, 1999
(the “Participation Agreement”) is made and entered into by and between Haggar
Clothing Co. and the Participant effective as of January 1, 2005.  Any capitalized term used herein, and not
otherwise defined herein, shall have the meaning set forth in the Participation
Agreement or the Haggar Corp. Supplemental Executive Retirement Plan (the “Plan”).


 


RECITALS


 


A.                                   Haggar Clothing Co.
and the Participant previously entered into the Participation Agreement;


 


B.                                     Haggar Clothing
Co. and the Participant previously amended the Participation Agreement,
effective February 14, 2003 (the “First Amendment”);


 


C.                                     The portion of the
Participant’s benefit under the Plan vesting on and after January 1, 2005
(the “Unvested Benefit”) will be subject to section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”), which section imposes
additional taxes on the Participant unless the Participation Agreement is
amended to comply with section 409A of the Code;


 


D.                                    The Participant’s
Unvested Benefit equals one hundred percent (100%) of the Participant’s benefit
under the Plan; and


 


E.                                      Haggar Clothing
Co. and the Participant desire to amend the terms of the Participation
Agreement to comply with section 409A of the Code.


 


AGREEMENT


 


NOW, THEREFORE, in
consideration of the premises and agreements herein contained and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Haggar Clothing Co. and the Participant hereby agree as follows:


 


1.                                       Addition of New Section 10.  A new Section 10 is hereby added,
effective January 1, 2005, to the Participation Agreement to read as
follows:


 


10.                                 In
order to comply with the provisions of section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”), this Section 10 will be
effective on and after January 1, 2005, notwithstanding anything to the
contrary in the Plan or this Agreement.


 


(a)                                  Change of Control.  Effective January 1, 2005, the
Participant (or the Participant’s surviving spouse) will no longer be


 





















 


entitled to
the lump sum benefit described in Section 4.1(d) of the Plan and
instead upon a Change of Control (as defined below) the Participant (or the
Participant’s surviving spouse) will receive, as soon as administratively
feasible following the Change of Control, a lump sum cash payment with an
actuarial present value of the then remaining Retirement Benefit or
Pre-Retirement Death Benefit, as the case may be, reduced by 10%.  The Corporation’s actuaries shall provide the
calculation of such lump sum amount based on the Actuarial Assumptions (as
defined in the Plan).  On and after January 1,
2005, the Participant (or the Participant’s surviving spouse) will no longer be
entitled to request the acceleration of the Retirement Benefit or
Pre-Retirement Death Benefit into a lump sum payment.


 


For all purposes under the Plan, Change of Control shall mean (i) a
merger or consolidation of the Corporation or Haggar Clothing Co. with or into
another entity, or the exchange of securities (other than a merger or
consolidation) by the holders of the voting securities of the Corporation or
Haggar Clothing Co. and the holders of voting securities of any other entity,
in which the shareholders of the Corporation or Haggar Clothing Co. immediately
before the transaction do not own 50% or more of the combined voting power of
the voting securities of the surviving entity or its parent immediately after
the transaction; (ii) a dissolution of the Corporation or Haggar Clothing
Co.; (iii) a transfer of all or substantially all of the assets of the
Corporation, or Haggar Clothing Co., in one transaction or a series of
transactions occurring within a twelve month period to a “Person” or “Group”
(as defined below); (iv) a transaction or a series of transactions in
which a Person or Group becomes the beneficial owner, directly or indirectly,
of securities of the Corporation, or Haggar Clothing Co., representing more
than 50% of the combined voting power of the Corporation’s or Haggar Clothing
Co.’s then outstanding securities; or (v) a majority of the members of the
Corporation’s Board is replaced during any twelve month period by directors
whose appointment or election is not endorsed by a majority of the Corporation’s
Board prior to the date of the appointment or election; provided, however, that
a “Change of Control” shall not be deemed to have occurred if the ownership of
50% or more of the combined voting power of the surviving corporation, asset
transferee, Corporation or Haggar Clothing Co. (as the case may be), after
giving effect to the transaction or series of transactions, is directly or
indirectly held by (A) a trustee or other fiduciary under an employee
benefit plan maintained by the Corporation, Haggar Clothing Co., or any
Subsidiary, (B) one or more of the “executive officers” of the Corporation
that held such positions prior to the transaction or series of transactions, or
any entity, Person or Group under their control, (C) one or more of the
children of J.M. Haggar, Sr. or their lineal descendants, or any entity,
Person or Group under their control, or (D) one or more members of the “senior
management” of the Corporation or Haggar Clothing Co. as designated by the Chief
Executive Officer from time to time, that held


 


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such positions
prior to the transaction or series of transactions, or any entity, Person or
Group under their control.  As used
herein, “Person” and “Group” shall have the meanings set forth in Sections
13(d)(3) and/or 14(d)(2) of the Securities Exchange Act of 1934, as
amended (“1934 Act”), and “executive officer” shall have the meaning set
forth in Rule 3b-7 promulgated under the 1934 Act.  “Group” shall further be determined by the
Plan Administrator to constitute “more than one person acting as a group” for
purposes of section 409A of the Code and the guidance promulgated
thereunder (the “Deferred Compensation Rules”). 
The definition of Change of Control above shall be controlling with
respect to the Participant for all purposes under the Plan and the Trust under
the Haggar Corp. Supplemental Executive Retirement Plan (the “Trust”).


 


(b)                                 Retirement Benefit.  The Participant’s vested Retirement Benefit
otherwise payable pursuant to Section 4.1(a) of the Plan shall not
commence until the lapse of six months from the Participant’s termination of
employment with Haggar Clothing Co. on which date the delayed annuity payments
will be paid in full and future annuity payments will be paid in accordance
with their schedule.  The Participant
will not be entitled to any additional compensation for the time value of money
with respect to this six month delay.


 


(c)                                  Trust Funding.  Notwithstanding any provision of the Trust to
the contrary (including Section 1(f) of the Trust) the Corporation
shall have no obligation to make any additional payments to the Trust with
respect to the Participant upon the occurrence of a Change of Control as
defined above.


 


(d)                                 Section 409A of the Code.  This Section 10 is intended to bring
distributions with respect to the Participant’s benefit under the Plan into
compliance with the Deferred Compensation Rules and the definition of
Change of Control above is intended to constitute “a change in the ownership or
effective control of the corporation, or in the ownership of a substantial
portion of the assets of the corporation” as such terms are used in the
Deferred Compensation Rules. 
Accordingly, this Section 10 and the definition of Change of
Control herein shall be interpreted by the Plan Administrator, in its sole
discretion exercised in good faith, in such a manner that distributions made
under the Plan will comply with the requirements of the Deferred Compensation
Rules.


 


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2.                                       Effect. 
Except as provided by this Second Amendment and the First Amendment, all
of the provisions of the Participation Agreement are hereby affirmed, ratified
and declared to be in full force and effect.


 


3.                                       Counterparts.  This Second Amendment may be executed in
multiple counterparts, each of which shall be deemed an original and together
shall constitute one and the same Second Amendment.


 


4.                                       Governing Law.  This Second Amendment shall be governed by
and construed in accordance with the laws of the State of Texas without
application of the conflict of laws principles thereof, except to the extent
preempted by federal law, which shall govern to such extent.


 


[Signature Page Follows]


 


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IN
WITNESS WHEREOF, the parties hereto have executed this Second
Amendment as of March 15, 2005.


 


	
   

  	
  HAGGAR CLOTHING CO.,
  a Nevada

  corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John W. Feray

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
  John W. Feray

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  Chief Accounting Officer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PARTICIPANT

  
	
   

  	
   

  
	
   

  	
  /s/ J.M. Haggar, III

  	
   

  
	
   

  	
  J.M. Haggar, III

  
						



 


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