Exhibit
10.29


 


	
  Guess?, Inc.

  
	
  Supplemental Executive
  Retirement Plan

  
	
  Plan Document

  



 


Effective January 1, 2006

(Amended and Restated

Effective December 18, 2008)


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1

  	
   

  	
  DEFINITIONS

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  	
   

  	
  ELIGIBILITY

  	
  8

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Selection by Committee

  	
  8

  
	
   

  	
   

  	
   

  
	
  2.2

  	
  Enrollment Requirements

  	
  8

  
	
   

  	
   

  	
   

  
	
  2.3

  	
  Commencement of Participation

  	
  8

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  	
   

  	
  BENEFITS

  	
  8

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  Retirement Benefit

  	
  8

  
	
   

  	
   

  	
   

  
	
  3.2

  	
  Termination Benefit

  	
  8

  
	
   

  	
   

  	
   

  
	
  3.3

  	
  Disability Benefit

  	
  8

  
	
   

  	
   

  	
   

  
	
  3.4

  	
  Change in Control Benefit

  	
  9

  
	
   

  	
   

  	
   

  
	
  3.5

  	
  Death Prior to the Commencement of Benefits

  	
  9

  
	
   

  	
   

  	
   

  
	
  3.6

  	
  Death After the Commencement of Benefits

  	
  9

  
	
   

  	
   

  	
   

  
	
  3.7

  	
  Limitation on Benefits

  	
  9

  
	
   

  	
   

  	
   

  
	
  3.8

  	
  Withholding and Payroll Taxes

  	
  9

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  	
   

  	
  FORMS OF BENEFIT PAYMENT

  	
  9

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Normal Form of Benefits

  	
  9

  
	
   

  	
   

  	
   

  
	
  4.2

  	
  Optional Form of Benefits

  	
  9

  
	
   

  	
   

  	
   

  
	
  4.3

  	
  Changes to Form of SERP Benefit

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  	
   

  	
  FORFEITURE

  	
  10

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  Forfeiture

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  	
   

  	
  TERMINATION OF PLAN
  PARTICIPATION, AMENDMENT OR MODIFICATION OF THE PLAN

  	
  10

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  Termination of Plan Participation

  	
  10

  
	
   

  	
   

  	
   

  
	
  6.2

  	
  Amendment

  	
  11

  
	
   

  	
   

  	
   

  
	
  6.3

  	
  Effect of Payment

  	
  11

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  	
   

  	
  OTHER BENEFITS AND AGREEMENTS

  	
  11

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  Coordination with Other Benefits

  	
  11

  



 


i

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8

  	
   

  	
  ADMINISTRATION OF THE PLAN

  	
  12

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  Committee Duties

  	
  12

  
	
   

  	
   

  	
   

  
	
  8.2

  	
  Agents

  	
  12

  
	
   

  	
   

  	
   

  
	
  8.3

  	
  Binding Effect of Decisions

  	
  12

  
	
   

  	
   

  	
   

  
	
  8.4

  	
  Indemnity of Committee

  	
  12

  
	
   

  	
   

  	
   

  
	
  8.5

  	
  Company Information

  	
  12

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  	
   

  	
  CLAIMS PROCEDURES

  	
  12

  
	
   

  	
   

  	
   

  
	
  9.1

  	
  Presentation of Claim

  	
  12

  
	
   

  	
   

  	
   

  
	
  9.2

  	
  Notification of Decision

  	
  13

  
	
   

  	
   

  	
   

  
	
  9.3

  	
  Review of a Denied Claim

  	
  13

  
	
   

  	
   

  	
   

  
	
  9.4

  	
  Decision on Review

  	
  13

  
	
   

  	
   

  	
   

  
	
  9.5

  	
  Legal Action

  	
  14

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  	
   

  	
  BENEFICIARY DESIGNATION

  	
  14

  
	
   

  	
   

  	
   

  
	
  10.1

  	
  Beneficiary

  	
  14

  
	
   

  	
   

  	
   

  
	
  10.2

  	
  Beneficiary Designation; Change; Spousal Consent

  	
  14

  
	
   

  	
   

  	
   

  
	
  10.3

  	
  Acknowledgment

  	
  14

  
	
   

  	
   

  	
   

  
	
  10.4

  	
  No Beneficiary Designation

  	
  14

  
	
   

  	
   

  	
   

  
	
  10.5

  	
  Doubt as to Beneficiary

  	
  14

  
	
   

  	
   

  	
   

  
	
  10.6

  	
  Discharge of Obligations

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  	
   

  	
  TRUST

  	
  15

  
	
   

  	
   

  	
   

  
	
  11.1

  	
  Establishment of the Trust

  	
  15

  
	
   

  	
   

  	
   

  
	
  11.2

  	
  Interrelationship of the Plan and the Trust

  	
  15

  
	
   

  	
   

  	
   

  
	
  11.3

  	
  Distributions From the Trust

  	
  15

  
	
   

  	
   

  	
   

  
	
  11.4

  	
  Funding Limitation

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12

  	
   

  	
  MISCELLANEOUS

  	
  15

  
	
   

  	
   

  	
   

  
	
  12.1

  	
  Status of the Plan

  	
  15

  



 


ii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  12.2

  	
  Unsecured General Creditor

  	
  15

  
	
   

  	
   

  	
   

  
	
  12.3

  	
  Employer’s Liability

  	
  16

  
	
   

  	
   

  	
   

  
	
  12.4

  	
  Nonassignability

  	
  16

  
	
   

  	
   

  	
   

  
	
  12.5

  	
  Not a Contract of Employment

  	
  16

  
	
   

  	
   

  	
   

  
	
  12.6

  	
  Furnishing Information

  	
  16

  
	
   

  	
   

  	
   

  
	
  12.7

  	
  Terms

  	
  16

  
	
   

  	
   

  	
   

  
	
  12.8

  	
  Captions

  	
  16

  
	
   

  	
   

  	
   

  
	
  12.9

  	
  Governing Law

  	
  16

  
	
   

  	
   

  	
   

  
	
  12.10

  	
  Notice

  	
  16

  
	
   

  	
   

  	
   

  
	
  12.11

  	
  Successors

  	
  17

  
	
   

  	
   

  	
   

  
	
  12.12

  	
  Spouse’s Interest

  	
  17

  
	
   

  	
   

  	
   

  
	
  12.13

  	
  Validity

  	
  17

  
	
   

  	
   

  	
   

  
	
  12.14

  	
  Incompetent

  	
  17

  
	
   

  	
   

  	
   

  
	
  12.15

  	
  Court Order

  	
  17

  
	
   

  	
   

  	
   

  
	
  12.16

  	
  Insurance

  	
  17

  
	
   

  	
   

  	
   

  
	
  12.17

  	
  Legal Fees To Enforce Rights After Change in Control

  	
  18

  



 


iii

















 


GUESS?,
INC.


SUPPLEMENTAL
EXECUTIVE RETIREMENT PLAN


 


Effective January 1, 2006


(Amended and
Restated Effective December 18, 2008)


 


Purpose


 


The purpose of this Plan is to provide specified
benefits to a select group of management or highly compensated Employees who
contribute materially to the continued growth, development and future business
success of Guess?, Inc., a Delaware corporation, and its subsidiaries, if
any, that sponsor this Plan.  This Plan
shall be unfunded for tax purposes and for purposes of Title I of ERISA.


 


ARTICLE 1


Definitions


 


For purposes hereof, unless otherwise clearly apparent from the context,
the following phrases or terms shall have the following indicated meanings:


 


1.1           “Actuarial Equivalent” shall mean a benefit or benefits, or a payment or
payments, which are of equal value to the benefits for which they are to be
substituted.  Equivalence of value is
determined from actuarial calculations based on certain actuarial assumptions as
to mortality and interest, applied with respect to the particular form or forms
of payment under this Plan.  For purposes
of this Plan, the following shall be used in any actuarial calculations: (a) the
1983 GAM rate tables for males and females, and (b) an annual rate equal to 6%.  For purposes of this Plan, the standard form
of benefit shall be a Life Annuity as set forth in Article 4.


 


1.2           “Average Compensation”
shall mean the highest average of a Participant’s Compensation paid during any
two (2) full calendar years of employment with the Employer (or, if a
Participant has been employed for less than two (2) full calendar years,
the actual number of the Participant’s full calendar years of employment with
the Employer) out of the last three (3) full calendar years of employment
immediately prior to the Participant’s Determination Date.


 


1.3           “Beneficiary” or “Beneficiaries” shall mean one or more persons, trusts,
estates or other entities designated in accordance with Article 10 that is
entitled to receive benefits under this Plan upon the death of a Participant.


 


1.4           “Beneficiary Designation Form” shall mean the form established from time
to time by the Committee that a Participant completes, signs and returns to the
Committee to designate one or more Beneficiaries.


 


1

















 


1.5           “Benefit Percentage” shall be used to determine a Participant’s SERP
Benefit and shall be calculated on the basis of the Participant’s Years of
Service as of the Determination Date, in accordance with the following
schedule:


 


	
   

  	
  Years of Service

  	
   

  	
  Benefit Percentage

  	
   

  	
   

  
	
   

  	
  1

  	
   

  	
  2.50

  	
  %

  	
   

  
	
   

  	
  2

  	
   

  	
  5.00

  	
  %

  	
   

  
	
   

  	
  3

  	
   

  	
  7.50

  	
  %

  	
   

  
	
   

  	
  4

  	
   

  	
  10.00

  	
  %

  	
   

  
	
   

  	
  5

  	
   

  	
  12.50

  	
  %

  	
   

  
	
   

  	
  6

  	
   

  	
  15.00

  	
  %

  	
   

  
	
   

  	
  7

  	
   

  	
  17.50

  	
  %

  	
   

  
	
   

  	
  8

  	
   

  	
  20.00

  	
  %

  	
   

  
	
   

  	
  9

  	
   

  	
  22.50

  	
  %

  	
   

  
	
   

  	
  10

  	
   

  	
  25.00

  	
  %

  	
   

  
	
   

  	
  11

  	
   

  	
  27.50

  	
  %

  	
   

  
	
   

  	
  12

  	
   

  	
  30.00

  	
  %

  	
   

  
	
   

  	
  13

  	
   

  	
  32.50

  	
  %

  	
   

  
	
   

  	
  14

  	
   

  	
  35.00

  	
  %

  	
   

  
	
   

  	
  15

  	
   

  	
  37.50

  	
  %

  	
   

  
	
   

  	
  16

  	
   

  	
  40.00

  	
  %

  	
   

  
	
   

  	
  17

  	
   

  	
  42.50

  	
  %

  	
   

  
	
   

  	
  18

  	
   

  	
  45.00

  	
  %

  	
   

  
	
   

  	
  19

  	
   

  	
  47.50

  	
  %

  	
   

  
	
   

  	
  20

  	
   

  	
  50.00

  	
  %

  	
   

  
	
   

  	
  21

  	
   

  	
  52.50

  	
  %

  	
   

  
	
   

  	
  22

  	
   

  	
  55.00

  	
  %

  	
   

  
	
   

  	
  23

  	
   

  	
  57.50

  	
  %

  	
   

  
	
   

  	
  24 or more

  	
   

  	
  60.00

  	
  %

  	
   

  



 


The maximum Benefit
Percentage used for purposes of determining a Participant’s SERP Benefit shall
be fifty percent (50%); provided, however, that the maximum Benefit Percentage
used for purposes of determining the SERP Benefit for each of Maurice Marciano
and Paul Marciano shall be sixty percent (60%).


 


1.6           “Board” shall mean the board of directors of the Company.


 


1.7           “Change in Control” shall mean the occurrence of a “change in the
ownership” of the Company, a “change in the effective control” of the Company
or a “change in the ownership of a substantial portion of the assets” of the
Company, as determined in accordance with Treasury Regulations Section 1.409A-3(i)(5).


 


1.8           “Change in Control Benefit” shall mean the benefit set forth in Section 3.4.


 


1.9           “Claimant” shall have the meaning set forth in Section 9.1.


 


2

















 


1.10         “Code” shall mean the Internal Revenue Code of 1986, as it may be amended
from time to time.


 


1.11         “Committee” shall mean the committee described in Article 8.


 


1.12         “Company” shall mean Guess?, Inc., a Delaware corporation, and any
successor to all or substantially all of the Company’s assets or business.


 


1.13         “Compensation” shall mean the annual base salary and bonus paid to a
Participant pursuant to the Guess?, Inc. Annual Incentive Bonus Plan
and/or such other bonus or incentive arrangement designated by the Committee,
and such other cash-based compensation specifically designated as Compensation
hereunder by the Committee.  Except for
any such cash-based compensation specifically designated by the Committee as
Compensation, Compensation shall not include commissions, overtime, fringe
benefits, stock options and other equity-based awards, relocation expenses,
non-monetary awards, director fees and other fees, airplane benefits and
automobile and other allowances (whether or not such allowances are included in
the Participant’s gross income).  Annual
base salary and bonus amounts shall be calculated before reduction for
compensation deferred pursuant to all qualified, non-qualified and Code Section 125
plans of the Employer; provided, however, that all such amounts will be
included in compensation only to the extent that had there been no such plan,
the amount would have been payable in cash to the Participant in such Plan
Year.  Any annual base salary amounts to
which a Participant is otherwise entitled to receive but which are voluntarily
foregone at the election of the Participant (as agreed to by the Company) shall
be considered Compensation for purposes of this Plan for the calendar year in
which such amounts would have otherwise been paid in accordance with usual
Company practices if not voluntarily foregone.


 


1.14         “Death
Benefit” shall mean the benefits due, if any, to a Participant’s Beneficiary
pursuant to Article 3 upon the Participant’s death.


 


1.15         “Determination Date” shall mean, for purposes of calculating the SERP
Benefit, the first to occur of a Participant’s (a) Separation from
Service, (b) death, or (c) Disability, as applicable.


 


1.16         “Disability” or “Disabled” shall mean that a Participant is (a) unable
to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or can be expected to last for a continuous period of not less than
twelve (12) months, or (b) by reason of any medically determinable
physical or mental impairment which can be expected to result in death or can
be expected to last for a continuous period of not less than twelve (12)
months, receiving income replacement benefits for a period of not less than
three (3) months under an accident or health plan covering employees of
the Participant’s Employer.  For purposes
of this Plan, a Participant shall be deemed Disabled if determined to be
totally disabled by the Social Security Administration.  A Participant shall also be deemed Disabled
if determined to be disabled in accordance with the applicable disability
insurance program of such Participant’s Employer, provided that the definition
of “disability” applied under such disability insurance program complies with
the definition in this Section.


 


1.17         “Disability Benefit” shall mean the benefit set forth in Section 3.3.


 


1.18         “Election Form” shall mean the form established from time to time by the
Committee that a Participant completes, signs and returns to the Committee to
make an election under the Plan.


 


3

















 


1.19         “Employee” shall mean a person who is an employee of any Employer.


 


1.20         “Employer(s)” shall be defined as follows:


 


(a)           Except as
otherwise provided in part (b) of this Section, the term “Employer” shall
mean the Company and/or any of its subsidiaries (now in existence or hereafter
formed or acquired) that have been selected by the Board to participate in the
Plan and have adopted the Plan as a sponsor; and


 


(b)           For the
purpose of determining whether a Participant has experienced a Separation from
Service, the term “Employer” shall mean:


 


(i)            The entity
for which the Participant performs services and with respect to which the
legally binding right to compensation deferred or contributed under this Plan
arises; and


 


(ii)           All other
entities with which the entity described above would be aggregated and treated
as a single employer under Code Section 414(b) (controlled group of
corporations) and Code Section 414(c) (a group of trades or
businesses, whether or not incorporated, under common control), as
applicable.  In order to identify the
group of entities described in the preceding sentence, the Committee shall use
an ownership threshold of 50% as a substitute for the 80% minimum ownership
threshold that appears in, and otherwise must be used when applying, the
applicable provisions of (A) Code Section 1563 for determining a
controlled group of corporations under Code Section 414(b), and (B) Treasury
Regulations Section 1.414(c)-2 for determining the trades or businesses
that are under common control under Code Section 414(c).


 


1.21         “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as
it may be amended from time to time.


 


1.22         “Estimated Social Security Benefit” means the monthly amount of primary
old age insurance benefits available to a Participant under the provisions of
Title II of the Social Security Act as in effect for the year during which the
Participant Separates from Service on or after attaining age sixty-five,
without regard to any increases in the wage base or benefit levels or any other
change in the law that takes effect thereafter and, if the Participant’s
Determination Date occurs prior to attaining age sixty-five, assuming the
Participant’s salary would have remained constant to age sixty-five.


 


1.23         “Fifteen Year Term Certain Life Annuity” shall mean a benefit that is
payable monthly in the form of an annuity for the life of the Participant or
fifteen (15) years, whichever is longer, and that is equal to the Participant’s
SERP Benefit.


 


1.24         “Joint and 50% Survivor Annuity” shall mean a benefit that is payable
monthly in the form of an annuity for the life of the Participant with a 50%
survivor annuity for the life of such Participant’s Beneficiary, and that is
equal to the Participant’s SERP Benefit.


 


1.25         “Life Annuity” shall mean a benefit that is payable monthly in the form of
an annuity for the life of the Participant and that is equal to the Participant’s
SERP Benefit.


 


4

















 


1.26         “Participant” shall mean any Employee, (i) who is selected to
participate in the Plan, (ii) who completes the applicable enrollment
requirements established by the Committee in accordance with Section 2.3,
and (iii) whose Plan Agreement has not terminated.


 


1.27         “Plan” shall mean the Guess?, Inc. Supplemental Executive Retirement
Plan, which shall be evidenced by this instrument and by each Plan Agreement,
as amended from time to time.


 


1.28         “Plan Agreement” shall mean a written agreement in the form prescribed by
or acceptable to the Committee that evidences a Participant’s agreement to the
terms of the Plan and which may establish additional terms or conditions of
Plan participation for a Participant. 
Unless otherwise determined by the Committee, the most recent Plan
Agreement accepted with respect to a Participant shall supersede any prior Plan
Agreements for such Participant.  Plan
Agreements may vary among Participants and may provide additional benefits not
set forth in the Plan or limit the benefits otherwise provided under the Plan;
provided, however, that any such additional benefits or benefit limitations
must be agreed upon by both the Employer and the Participant.


 


1.29         “Plan Year” shall mean a period beginning on January 1 of each
calendar year and continuing through December 31 of such calendar year.


 


1.30         “Retirement” or “Retires” shall mean a Participant’s Separation from
Service on or after the date on which the Participant has attained age
sixty-five (65).


 


1.31         “Retirement
Benefit” shall mean the benefit set forth in Section 3.1.


 


1.32         “Separation from Service” shall
mean a termination of services provided by a Participant to his or her
Employer, whether voluntarily or involuntarily, other than by reason of death
or Disability, as determined by
the Committee in accordance with
Treasury Regulation Section 1.409A-1(h) and consistent with the rules set
forth below.  In determining whether a Participant
has experienced a Separation from Service, the following provisions shall apply:


 


(a)           For a
Participant who provides services to an Employer as an Employee, except as
otherwise provided in part (c) of this Section, a Separation from Service
shall occur when such Participant has experienced a termination of employment
with such Employer.  For this purpose, a
Participant terminates employment when the facts and circumstances indicate
that the Participant and his or her Employer reasonably anticipate that no
further services will be performed for the Employer after a certain date, or
that the level of bona fide services the Participant will perform for the
Employer after such date (whether as an Employee or as an independent
contractor) will permanently decrease to no more than 20% of the average level
of bona fide services performed by such Participant (whether as an Employee or
an independent contractor) over the immediately preceding 36-month period (or
the full period of services to the Employer if the Participant has been providing
services to the Employer less than 36 months).


 


(b)           If a
Participant is on military leave, sick leave, or other bona fide leave of
absence, the employment relationship between the Participant and the Employer
shall be treated as continuing intact for purposes of this Plan, provided that
the period of such leave does not exceed 6 months, or if longer, so long as the
Participant retains a right to reemployment with the Employer under an
applicable statute or by contract.  If
the period of a military leave, sick leave, or other bona fide leave of absence
exceeds 6 months and the Participant does not retain a right to reemployment
under an applicable statute or by contract, the employment relationship shall
be considered to be terminated for purposes of this Plan as of the first day
immediately following the end of such 6-month period.  In applying the provisions of this paragraph,
a leave of absence shall be considered a bona fide leave of absence only if
there is a reasonable expectation that the Participant will return to perform
services for the Employer.


 


5














 


(c)           For a Participant who provides services to an Employer as both an
Employee and an independent contractor, a Separation from Service generally
shall not occur until the Participant has ceased providing services for such
Employer as both as an Employee and as an independent contractor, as determined
in accordance with the provisions set forth in parts (a) and (b) of
this Section, respectively.  Similarly,
if a Participant either (i) ceases providing services for an Employer as
an independent contractor and begins providing services for such Employer as an
Employee, or (ii) ceases providing services for an Employer as an Employee
and begins providing services for such Employer as an independent contractor,
the Participant will not be considered to have experienced a Separation from
Service until the Participant has ceased providing services for such Employer
in both capacities, as determined in accordance with the applicable provisions
set forth in parts (a) and (b) of this Section.


 


Notwithstanding the foregoing
provisions in this part (c), if a Participant provides services for an Employer
as both an Employee and as a member of the board of directors of any Employer
(a “Director”), to the extent permitted by Treas. Reg. §1.409A-1(h)(5) the
services provided by such Participant as a Director shall not be taken into
account in determining whether the Participant has experienced a Separation
from Service as an Employee.


 


1.33         “SERP
Benefit” shall mean a monthly amount, payable to a Participant in the form provided
in Article 4 and commencing in accordance with the provisions of Article 3.  Notwithstanding the actual commencement date
of the SERP Benefit, the monthly amount shall be fixed and determined and shall
be computed based on the Participant’s Determination Date as follows:


 


(a)       the Participant’s Average Compensation, divided by twelve (12);


 


(b)       the amount determined in (a) above multiplied by the Participant’s
Benefit Percentage;


 


(c)       the amount determined in (b) above less the Participant’s
Estimated Social Security Benefit;


 


(d)       the amount determined in (c) above multiplied by the Participant’s
Vesting Percentage.


 


1.34         “Ten Year Term Certain Life Annuity” shall mean a benefit that is payable
monthly in the form of an annuity for the life of the Participant or ten (10) years,
whichever is longer, and that is equal to the Participant’s SERP Benefit.


 


1.35         “Termination
Benefit” shall mean the benefit set forth in Section 3.2.


 


6

















 


1.36         “Trust”
shall mean one or more trusts established by the Company in accordance with Article 11.


 


1.37         “Years
of Plan Participation” shall mean the total number of full Plan Years a
Participant has been a Participant in the Plan prior to the Participant’s
Determination Date.  Any partial year shall not be counted.


 


1.38         “Years
of Service” shall mean the total number of full years in which a Participant
has been employed by one or more Employers prior to the Participant’s
Determination Date.  For purposes of this
definition, a year of employment shall be a 365 day period (or 366 day period
in the case of a leap year) that, for the first year of employment, commences
on the Employee’s date of hiring and that, for any subsequent year, commences
on an anniversary of that hiring date. 
The Committee shall make a determination as to whether any partial year
of employment shall be counted as a Year of Service.  The maximum number of Years of Service that
may be used for purposes of determining a Participant’s Benefit Percentage
under this Plan shall be twenty (20) years; provided, however, that the maximum
number of Years of Service that may be used for purposes of determining the
Benefit Percentage for each of Maurice Marciano and Paul Marciano under this
Plan shall be twenty four (24) years.


 


1.39         “Vesting Percentage” shall be used to determine a
Participant’s SERP Benefit.  A
Participant’s Vesting Percentage shall be determined in accordance with the
schedule set forth in his or her Plan Agreement or any other agreement entered
into between the Participant and his or her Employer.  If not addressed in such agreements, a
Participant’s Vesting Percentage shall be based on the Participant’s Years of
Plan Participation as of the Determination Date, in accordance with the
following schedule:


 


	
   

  	
  Years of Plan Participation

  	
   

  	
  Vesting Percentage

  	
   

  	
   

  
	
   

  	
  1-5

  	
   

  	
  0

  	
  %

  	
   

  
	
   

  	
  6

  	
   

  	
  20

  	
  %

  	
   

  
	
   

  	
  7

  	
   

  	
  40

  	
  %

  	
   

  
	
   

  	
  8

  	
   

  	
  60

  	
  %

  	
   

  
	
   

  	
  9

  	
   

  	
  80

  	
  %

  	
   

  
	
   

  	
  10 or more

  	
   

  	
  100

  	
  %

  	
   

  



 


Notwithstanding the
foregoing, upon death, Disability or a Change in Control, the Participant shall
become fully vested and the Vesting Percentage shall be one hundred percent
(100%); provided, however, the vesting schedule described above shall not be
accelerated upon a Change in Control to the extent that the Committee
determines that such acceleration would cause the deduction limitations of Section 280G
of the Code to apply (unless such Participant is entitled to a “gross-up”
payment to eliminate the effect of the excise tax under Section 4999 of
the Code pursuant to his or her employment agreement or other agreement entered
into between such Participant and the Employer, or any such agreement with the
Participant that provides other express treatment of the Participant’s benefits
with respect to the application of Section 280G).  In the event of such a determination, the Participant
may request independent verification of the Committee’s calculations with
respect to the application of Code Section 280G.  In such case, the Committee must provide to
the Participant within ninety (90) days of such a request an opinion from a nationally
recognized accounting firm selected by the Participant (the “Accounting Firm”).  The opinion shall state the Accounting Firm’s
opinion that any limitation in the vested percentage hereunder is necessary to
avoid the limits of Section 280G and contain supporting calculations.  The cost of such opinion shall be paid for by
the Company.


 


7

















 


ARTICLE 2


Eligibility


 


2.1           Selection
by Committee. 
Participation in the Plan shall be limited to a select group of management
and highly compensated Employees of an Employer, as determined by the Committee
in its sole discretion.


 


2.2           Enrollment
Requirements.  As a
condition to participation, a Participant shall complete, execute and return to
the Committee a Plan Agreement and a Beneficiary Designation Form, all within
the time period specified by the Committee. 
In addition, the Committee shall establish from time to time such other
enrollment requirements as it determines in its sole discretion are necessary.


 


2.3           Commencement
of Participation. 
Provided that a Participant has met all enrollment requirements set
forth in this Plan and required by the Committee, including returning all
required documents to the Committee within the specified time period, he or she
shall commence participation in the Plan on the date specified by the
Committee.  If a Participant fails to
meet any such requirements within the period required, in accordance with Section 2.2,
he shall not be eligible to participate in the Plan until the completion of
those requirements.


 


ARTICLE 3


Benefits


 


3.1           Retirement
Benefit.  Subject to Section 3.4,
a Participant who experiences a Separation from Service that qualifies as a
Retirement shall receive, as his Retirement Benefit, a SERP Benefit in the form
set forth in Article 4.  Retirement
Benefit payments shall commence within sixty (60) days immediately following the last day of the six-month period
immediately following the date on which the Participant experiences such
Separation from Service.


 


3.2           Termination
Benefit.  Subject to Section 3.4,
a Participant who experiences a Separation from Service that does not qualify
as a Retirement shall receive as his Termination Benefit, a SERP Benefit in the
form set forth in Article 4. 
Termination Benefit payments shall commence within sixty (60) days
immediately following the last day of the six-month period immediately
following the date on which the Participant attains age sixty-five (65).


 


3.3           Disability
Benefit.  If a Participant
experiences a Disability during his employment and prior to such Participant’s
attainment of age sixty-five (65), he shall receive, as his Disability Benefit,
a SERP Benefit in the form of a lump sum that is the Actuarial Equivalent of
the Participant’s SERP Benefit had such SERP Benefit been payable in the form
of a Life Annuity commencing at age sixty-five (65).  If a Participant experiences a Disability
during his employment and on or after such Participant’s attainment of age
sixty-five (65), he shall receive, as his Disability Benefit, a SERP Benefit in
the form set forth in Article 4. 
Disability Benefit payments shall commence within sixty (60) days
following the date on which the Participant experiences a Disability.


 


8

















 


3.4           Change in
Control Benefit.  If a Participant experiences a
Separation from Service within the twelve-month period immediately following a
Change in Control, the Participant shall receive as his Change in Control
Benefit, a SERP Benefit in the form of a lump sum that is the Actuarial
Equivalent of the Participant’s SERP Benefit had such benefit been payable in
the form set forth in Article 4. 
The Change in Control Benefit payment shall be made within sixty (60)
days immediately following the
last day of the six-month period immediately following the date on which the
Participant experiences such
Separation from Service.


 


3.5           Death
Prior to the Commencement of Benefits. 
If a Participant who is entitled to a benefit pursuant
to this Plan should die prior to the date on which his benefit payment is
scheduled to commence, the form in which the Participant elected to receive
such benefit shall determine the amount, if any, payable to such Participant’s
Beneficiary as a Death Benefit.  The
Death Benefit, if any, shall be a SERP Benefit in the form of a lump sum that
is the Actuarial Equivalent of the Participant’s SERP Benefit, with such
Actuarial Equivalent determined as of the day immediately preceding the day of
the Participant’s death.  Payment of the
Death Benefit, if any, will be made to the Beneficiary no later than sixty (60)
days after the date of the Participant’s death.


 


3.6           Death
After the Commencement of Benefits.  If a Participant dies
after his benefits have commenced, the form in which such Participant’s
benefits have been paid shall determine the amount, if any, and the form of the
Death Benefit payable to such Participant’s Beneficiary.


 


3.7           Limitation
on Benefits.  Notwithstanding the foregoing provisions of
this Article 3, in no event shall a Participant or his Beneficiary receive
more than one form of benefit under this Article 3.


 


3.8           Withholding
and Payroll Taxes.  The
Employer shall withhold from any and all benefits made under this Article 3,
or from cash compensation if withholding is required prior to payment of
benefits, all federal, state, local or foreign income, employment and other
taxes required to be withheld by the Employer in connection with the benefits
hereunder, in amounts to be determined in the sole discretion of the Employer.


 


ARTICLE 4


Forms of Benefit
Payment


 


4.1           Normal Form of
Benefits.  Except as
provided in Article 3, a Participant who is entitled to receive a SERP
Benefit pursuant to this Plan shall receive such benefit in the form of a Life
Annuity unless an optional form of benefit payment is elected by a Participant
in accordance with Section 4.2.


 


4.2           Optional Form of
Benefits.  A Participant
may elect, in connection with his commencement of participation in the Plan, to
receive his SERP Benefit in a form other than a Life Annuity by electing to
receive such benefit in the form of a (i) Ten Year Term Certain Life
Annuity, (ii) Fifteen Year Term Certain Life Annuity, or (iii) Joint
and 50% Survivor Annuity; provided, however, that the Participant’s SERP
Benefit will be increased or decreased, as applicable, to be a benefit that is
the Actuarial Equivalent of a Life Annuity, and which reflects the actual form
of benefit payment elected by the Participant pursuant to this Section 4.2.  If a Participant does not make any election
in connection with his commencement of participation in the Plan with respect
to the form of the benefit in accordance with this Section 4.2, then such
Participant shall be deemed to have elected to receive such benefit as a Life
Annuity in accordance with Section 4.1.


 


9

















 


4.3           Changes
to Form of SERP Benefit. 
To the extent permitted by Treasury Regulations Section 1.409A-2(b)(2)(ii),
a Participant may change the form of his SERP Benefit from one type of life
annuity to another type of life annuity, provided that such annuities are
actuarially equivalent and have the same scheduled date for the first payment.  To
make such a change, the Participant must submit an Election Form electing
such change and the Election Form must be received by the Company
before any annuity payment has been made under the terms of the Plan to that
Participant.


 


ARTICLE 5


Forfeiture


 


5.1           Forfeiture.  Notwithstanding
any provision of this Plan to the contrary, the right of a Participant and his
Beneficiaries to be eligible to receive or to continue to receive benefits
hereunder is expressly conditioned upon the Participant not violating any
noncompete provisions contained in the Participant’s Plan Agreement.  If the Committee determines that a
Participant has violated the terms of this Section 5.1, the Participant
and his or her Beneficiaries shall forfeit any benefits not yet received under
this Plan and shall be required to repay to the Employer any benefits already
received from the Plan.


 


ARTICLE 6


Termination of
Plan Participation, Amendment or Modification of the Plan


 


6.1           Termination
of Plan Participation.  Although
each Employer anticipates that it will continue the Plan for an indefinite
period of time, there is no guarantee that any Employer will continue the Plan
or will not terminate the Plan at any time in the future.  Accordingly, each Employer reserves the right
to terminate the participation in the Plan as to some or all of the Participants
at any time.  Following the termination
of participation in the Plan, (i) each affected Participant’s SERP Benefit
shall stop accruing (except for necessary actuarial adjustments), and (ii) each
Participant’s SERP Benefit (determined without regard to any increases in
Compensation, Years of Service or Years of Plan Participation after the
termination of the participation in the Plan) shall commence no sooner than the
date on which the Participant or his Beneficiary becomes eligible to receive
such benefit in accordance with Articles 3 and 4 of the Plan.


 


Notwithstanding the foregoing, to the extent permissible under Treasury
Regulations Section 1.409A-3(j)(4)(ix), following a Change in Control each
Employer may, in its discretion, terminate the participation in the Plan with
respect to all Participants and distribute benefits to the Participants in the
form of a lump sum that is the Actuarial Equivalent of each Participant’s SERP
Benefit, determined as of the date of the termination of participation in the
Plan (without regard to any increases in Compensation, Years of Service or
Years of Plan Participation after such date), provided that the distribution of
the Participants’ benefits are made no later than six (6) months after the
Change in Control.


 


10

















 


The termination of participation in the Plan accordance with this Section 6.1
shall not adversely affect any Participant or Beneficiary who has become
entitled to the payment of any benefits under the Plan as of the date of such
termination of participation.


 


6.2           Amendment.


 


(a)           The Board may, at any time, amend or modify the
Plan in whole or in part. 
Notwithstanding the foregoing, (i) no amendment or modification
shall be effective to reduce any benefits a Participant has become entitled to as
of the date the amendment or modification is made, and (ii) no amendment
or modification of this Section 6.2 shall be effective.


 


(b)           If a
Participant’s Plan Agreement contains benefits or limitations that are not in
this Plan document, the Board may amend or terminate such provisions with the
written consent of the Participant.


 


(c)           Notwithstanding
any provision of the Plan to the contrary, in the event that the Committee or
the Board determines that any provision of the Plan or any Plan Agreement may cause
amounts deferred under the Plan to become immediately taxable to any
Participant under Code Section 409A and related Treasury guidance, the
Board may (i) adopt such amendments to the Plan, Plan Agreement and appropriate
policies and procedures, including amendments and policies with retroactive
effect, that are determined to be necessary or appropriate to preserve the
intended tax treatment of the Plan benefits provided by the Plan and/or (ii) take
such other actions that are determined to be necessary or appropriate to comply
with the requirements of Code Section 409A and related Treasury guidance.


 


6.3           Effect of
Payment.  Absent the
earlier termination, modification or amendment of the Plan, the full payment of
the applicable benefit as provided under Articles 3 and 4 of the Plan
shall completely discharge all obligations to a Participant and his
Beneficiaries under this Plan and the Participant’s Plan Agreement shall
terminate.


 


ARTICLE 7


Other Benefits and
Agreements


 


7.1           Coordination
with Other Benefits.  The
benefits provided for a Participant and such Participant’s Beneficiaries under
this Plan are in addition to any other benefits available to the Participant
under any other plan or program for employees of the Participant’s
Employer.  The Plan shall supplement and
shall not supersede, modify or amend any other such plan or program except as
may otherwise be expressly provided.


 


11














 


ARTICLE 8


Administration of
the Plan


 


8.1           Committee
Duties.  This Plan shall
be administered by a Committee, which shall consist of the Compensation
Committee of the Board.  Members of the
Committee may not be Participants under this Plan. The Committee shall also
have the discretion and authority to (a) make, amend, interpret and
enforce all appropriate rules and regulations for the administration of
this Plan and (b) decide or resolve any and all questions including
interpretations of this Plan, and find facts necessary to make such
determinations as may arise in connection with the Plan.  When making a determination or calculation,
the Committee shall be entitled to rely on information furnished by the
Participant, the Employer or appropriate experts, including agents and
actuarial experts.  The Committee may, in
its sole discretion and from time to time, delegate any administrative or
ministerial duties related to the Plan to any officers or staff of the Company.


 


8.2           Agents.  In the administration of this Plan, the
Committee may, from time to time, employ agents and delegate to them such
administrative duties as it sees fit (including acting through a duly appointed
representative) and may from time to time consult with counsel who may but need
not be counsel to the Company.


 


8.3           Binding
Effect of Decisions.  The decision or action of the
Committee with respect to any question arising out of or in connection with the
administration, interpretation and application of the Plan and the rules and
regulations promulgated hereunder shall be final and conclusive and binding
upon all persons having any interest in the Plan.


 


8.4           Indemnity
of Committee.  All Employers shall indemnify and
hold harmless the members of the Committee and any Employee to whom duties of the
Committee may be delegated in accordance with Section 8.1, from any and
all claims, losses, damages, expenses or liabilities arising from any action or
failure to act with respect to this Plan, except in the case of willful
misconduct by any such member of the Committee or any such Employee who seeks
indemnification hereunder.


 


8.5           Company
Information.  To enable the Committee to perform
its functions, the Company and each Employer shall supply full and timely
information to the Committee on all matters relating to the compensation of its
Participants, the date and circumstances of the Separation from Service,
Disability, or death of its Participants, and such other pertinent information
as the Committee may reasonably require.


 


ARTICLE 9


Claims Procedures


 


9.1           Presentation
of Claim.  Any Participant
or Beneficiary of a deceased Participant (such Participant or Beneficiary being
referred to below as a “Claimant”) may deliver to the Committee a written claim
for a determination with respect to the amounts distributable to such Claimant
from the Plan.  If such a claim relates
to the contents of a notice received by the Claimant, the claim must be made
within sixty (60) days after such notice was received by the Claimant.  All other claims must be made within
180 days of the date on which the event that caused the claim to arise
occurred.  The claim must state with
particularity the determination desired by the Claimant.


 


12

















 


9.2           Notification
of Decision.  The
Committee shall consider a Claimant’s claim within a reasonable time, but no
later than ninety (90) days after receiving the claim.  If the Committee determines that special
circumstances require an extension of time for processing the claim, written notice
of the extension shall be furnished to the Claimant prior to the termination of
the initial ninety (90) day period.  In
no event shall such extension exceed a period of ninety (90) days from the end
of the initial period.  The extension
notice shall indicate the special circumstances requiring an extension of time
and the date by which the Committee expects to render the benefit
determination.  The Committee shall
notify the Claimant in writing:


 


(a)           that the
Claimant’s requested determination has been made, and that the claim has been
allowed in full; or


 


(b)           that the
Committee has reached a conclusion contrary, in whole or in part, to the
Claimant’s requested determination, in which case such notice must set forth in
a manner calculated to be understood by the Claimant:


 


(i)            the specific
reason(s) for the denial of the claim, or any part of it;


 


(ii)           specific
reference(s) to pertinent provisions of the Plan upon which such denial
was based;


 


(iii)          a
description of any additional material or information necessary for the
Claimant to perfect the claim, and an explanation of why such material or
information is necessary;


 


(iv)          an
explanation of the claim review procedure set forth in Section 9.3 below;
and


 


(v)           a statement
of the Claimant’s right to bring a civil action under ERISA Section 502(a) following
an adverse benefit determination on review.


 


9.3           Review of
a Denied Claim.  On or
before sixty (60) days after receiving a notice from the Committee that a
claim has been denied, in whole or in part, a Claimant (or the Claimant’s duly
authorized representative) may file with the Committee a written request for a
review of the denial of the claim.  The
Claimant (or the Claimant’s duly authorized representative):


 


(a)           may, upon
request and free of charge, have reasonable access to, and copies of, all
documents, records and other information relevant to the claim for benefits;


 


(b)           may submit
written comments or other documents; and/or


 


(c)           may request
a hearing, which the Committee, in its sole discretion, may grant.


 


9.4           Decision
on Review.  The Committee
shall render its decision on review promptly, and no later than sixty
(60) days after the Committee receives the Claimant’s written request for
a review of the denial of the claim.  If
the Committee determines that special circumstances require an extension of
time for processing the claim, written notice of the extension shall be
furnished to the Claimant prior to the termination of the initial sixty (60)
day period. In no event shall such extension exceed a period of sixty (60) days
from the end of the initial period.  The
extension notice shall indicate the special circumstances requiring an
extension of time and the date by which the Committee expects to render the benefit
determination.  In rendering its decision,
the Committee shall take into account all comments, documents, records and
other information submitted by the Claimant relating to the claim, without
regard to whether such information was submitted or considered in the initial
benefit determination.  The decision must
be written in a manner calculated to be understood by the Claimant, and it must
contain:


 


13

















 


(a)           specific
reasons for the decision;


 


(b)           specific
reference(s) to the pertinent Plan provisions upon which the decision was
based;


 


(c)           a statement
that the Claimant is entitled to receive, upon request and free of charge,
reasonable access to and copies of, all documents, records and other
information relevant (as defined in applicable ERISA regulations) to the
Claimant’s claim for benefits; and


 


(d)           a statement
of the Claimant’s right to bring a civil action under ERISA Section 502(a).


 


9.5           Legal
Action.  A Claimant’s
compliance with the foregoing provisions of this Article 9 is a mandatory prerequisite
to a Claimant’s right to commence any legal action with respect to any claim
for benefits under this Plan.


 


ARTICLE 10


Beneficiary
Designation


 


10.1         Beneficiary.  Each Participant shall have the right, at any
time, to designate his Beneficiary(ies) (both primary as well as contingent) to
receive any Death Benefits payable under the Plan to a beneficiary upon the
death of the Participant.  The
Beneficiary(ies) designated under this Plan may be the same as or different
from the Beneficiary(ies) designated under any other plan of an Employer in
which the Participant participates.


 


10.2         Beneficiary
Designation; Change; Spousal Consent.  A Participant shall designate his
Beneficiary(ies) by completing and signing the Beneficiary Designation Form,
and returning it to the Committee or its designated agent.  A Participant shall have the right to change
a Beneficiary by completing, signing and otherwise complying with the terms of
the Beneficiary Designation Form and the Committee’s rules and
procedures, as in effect from time to time. 
If the Participant names someone other than his spouse as a Beneficiary,
the Committee may, in its sole discretion, determine that spousal consent is
required to be provided in a form designated by the Committee, executed by such
Participant’s spouse and returned to the Committee.  Upon the acceptance by the Committee of a new
Beneficiary Designation Form, all Beneficiary designations previously filed
shall be cancelled.  The Committee shall
be entitled to rely on the last Beneficiary Designation Form filed by the
Participant and accepted by the Committee prior to his death.


 


10.3         Acknowledgment.  No designation or change in designation of a
Beneficiary shall be effective until received and acknowledged in writing by
the Committee or its designated agent.


 


10.4         No
Beneficiary Designation. 
If a Participant fails to designate a Beneficiary as provided in
Sections 10.1, 10.2, and 10.3 above, or if all designated Beneficiaries
predecease the Participant or die prior to complete distribution of the
Participant’s benefits, then the Participant’s designated Beneficiary shall be
deemed to be his surviving spouse. If the Participant has no surviving spouse,
the benefits remaining under the Plan to be paid to a Beneficiary shall be payable
to the executor or personal representative of the Participant’s estate.


 


10.5         Doubt as
to Beneficiary.  If the
Committee has any doubt as to the proper Beneficiary(ies) to receive payments
pursuant to this Plan, the Committee shall have the right, exercisable in its
discretion, to cause the Participant’s Employer to withhold such payments until
this matter is resolved to the Committee’s satisfaction.


 


14

















 


10.6         Discharge
of Obligations.  The
payment of benefits under the Plan to a Participant’s Beneficiary(ies) shall
fully and completely discharge all Employers and the Committee from all further
obligations under this Plan with respect to the Participant, and that
Participant’s Plan Agreement shall terminate upon such full payment of
benefits.


 


ARTICLE 11


Trust


 


11.1         Establishment
of the Trust.  In order to
provide assets from which to fulfill the obligations of the Participants and
their Beneficiaries under the Plan, the Company may establish a Trust by a trust
agreement with a third party, the trustee, to which each Employer may, in its
discretion, contribute cash or other property to the Trust in order to provide
for the benefits payments under the Plan.


 


11.2         Interrelationship
of the Plan and the Trust. 
The provisions of the Plan and the Plan Agreement shall govern the
rights of the Participants to receive distributions pursuant to the Plan.  The provisions of the Trust, if any, shall
govern the rights of the Employers, the Participants and the creditors of the
Employers to the assets transferred to the Trust.  Each Employer shall at all times remain
liable to carry out its obligations under the Plan.


 


11.3         Distributions
From the Trust.  Each
Employer’s obligations under the Plan may be satisfied with Trust assets
distributed pursuant to the terms of the Trust, if any, and any such
distribution shall reduce the Employer’s obligations under this Plan.


 


11.4         Funding
Limitation. 
Notwithstanding anything to the contrary in this Article 11, in no
event shall the Company establish or fund any Trust in a manner or on terms
that would result in the imposition of any tax, penalty or interest under Section 409A(b)(1) of
the Code and in no event shall the Company be obligated to, nor shall it, fund
any Trust “in connection with a change in the employer’s financial health”
within the meaning of Section 409A(b)(2) of the Code.


 


ARTICLE 12


Miscellaneous


 


12.1         Status of
the Plan.  The Plan is
intended to be a plan that is not qualified within the meaning of Code Section 401(a),
and is intended to be “unfunded and maintained by an employer primarily for the
purpose of providing deferred compensation for a select group of management or
highly compensated employees” within the meaning of ERISA Sections 201(2),
301(a)(3) and 401(a)(1).  The Plan
shall be administered and interpreted (i) to the extent possible in a
manner consistent with the intent described in the preceding sentence, and (ii) in
accordance with Code Section 409A and related Treasury guidance and
Regulations to avoid the assessment of any tax, penalty or interest thereunder.


 


12.2         Unsecured
General Creditor. 
Participants and their Beneficiaries, heirs, successors and assigns
shall have no legal or equitable rights, interests or claims in any property or
assets of an Employer.  For purposes of
the payment of benefits under this Plan, any and all of an Employer’s assets
shall be, and remain, the general, unpledged unrestricted assets of the
Employer.  An Employer’s obligation under
the Plan shall be merely that of an unfunded and unsecured promise to pay money
in the future.


 


15

















 


12.3         Employer’s
Liability.  An Employer’s
liability for the payment of benefits shall be defined only by the Plan and the
Plan Agreement, as entered into between the Employer and a Participant.  An Employer shall have no obligation to the
Participant under the Plan except as expressly provided in the Plan and his
Plan Agreement.


 


12.4         Nonassignability.  Neither a Participant nor any other person shall
have any right to commute, sell, assign, transfer, pledge, anticipate, mortgage
or otherwise encumber, transfer, hypothecate, alienate or convey in advance of
actual receipt, the amounts, if any, payable hereunder, or any part thereof,
which are, and all rights to which are, expressly declared to be, unassignable
and non-transferable.  No part of the
amounts payable shall, prior to actual payment, be subject to seizure,
attachment, garnishment or sequestration for the payment of any debts,
judgments, alimony or separate maintenance owed by a Participant or any other
person, be transferable by operation of law in the event of a Participant’s or
any other person’s bankruptcy or insolvency or be transferable to a spouse as a
result of a property settlement or otherwise.


 


12.5         Not a
Contract of Employment. 
The terms and conditions of this Plan shall not be deemed to constitute
a contract of employment between any Employer and the Participant.  Such employment is hereby acknowledged to be
an “at will” employment relationship that can be terminated at any time for any
reason, or no reason, with or without cause, and with or without notice, unless
expressly provided in a written employment agreement.  Nothing in this Plan shall be deemed to give
a Participant the right to be retained in the service of any Employer or to
interfere with the right of any Employer to discipline or discharge a
Participant at any time.


 


12.6         Furnishing
Information.  A
Participant or his Beneficiary will cooperate with the Committee by furnishing
any and all information requested by the Committee and take such other actions
as may be requested in order to facilitate the administration of the Plan and
the payments of benefits hereunder, including but not limited to taking such
physical examinations as the Committee may deem necessary.


 


12.7         Terms.  Whenever any words are used herein in the
masculine, they shall be construed as though they were in the feminine in all
cases where they would so apply; and wherever any words are used herein in the
singular or in the plural, they shall be construed as though they were used in
the plural or the singular, as applicable, in all cases where they would so
apply.


 


12.8         Captions.  The captions of the articles, sections and
paragraphs of this Plan are for convenience only and shall not control or
affect the meaning or construction of any of its provisions.


 


12.9         Governing
Law.  Subject to ERISA,
the provisions of this Plan shall be construed and interpreted according to the
internal laws of the State of Delaware without regard to its conflict of laws
principles.


 


12.10       Notice.  Any notice or filing required or permitted to
be given to the Committee under this Plan shall be sufficient if in writing and
hand-delivered, or sent by registered or certified mail, to the address below:


 


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Guess?, Inc.


Director
of Human Resources


1444 South Alameda Street


Los Angeles, CA 90021


 


Such notice shall be deemed given as of the date of
delivery or, if delivery is made by mail, as of the date shown on the postmark
on the receipt for registration or certification.


 


Any notice or filing required or permitted to be
given to a Participant under this Plan shall be sufficient if in writing and
hand-delivered, or sent by mail, to the last known address of the Participant.


 


12.11       Successors.  The provisions of this Plan shall bind and
inure to the benefit of each Participant’s Employer and its successors and
assigns and such Participant and the Participant’s designated Beneficiaries.


 


12.12       Spouse’s
Interest.  The interest in
the benefits hereunder of a spouse of a Participant who has predeceased the
Participant shall automatically pass to the Participant and shall not be
transferable by such spouse in any manner, including but not limited to such
spouse’s will, nor shall such interest pass under the laws of intestate
succession.


 


12.13       Validity.  In case any provision of this Plan shall be
illegal or invalid for any reason, said illegality or invalidity shall not
affect the remaining parts hereof, but this Plan shall be construed and
enforced as if such illegal and invalid provision had never been inserted
herein.


 


12.14       Incompetent.  If the Committee determines in its discretion
that a benefit under this Plan is to be paid to a minor, a person declared
incompetent or to a person incapable of handling the disposition of that person’s
property, the Committee may direct payment of such benefit to the guardian,
legal representative or person having the care and custody of such minor, incompetent
or incapable person.  The Committee may
require proof of minority, incompetency, incapacity or guardianship, as it may
deem appropriate, prior to distribution of the benefit.  Any payment of a benefit shall be a payment
for the account of the Participant and the Participant’s Beneficiary, as
applicable, and shall be a complete discharge of any liability under the Plan
for such payment amount.


 


12.15       Court
Order.  The Committee is
authorized to comply with any court order in any action in which the Plan or
Committee has been named as a party, including any action involving a
determination of the rights or interests in a Participant’s benefits under the
Plan.  Notwithstanding the foregoing, the
Committee shall interpret this provision in a manner that is consistent with
applicable tax law, including but not limited to guidance issued after the
effective date of this Plan.


 


12.16       Insurance.  The Employers, on their own behalf or, if
applicable, on behalf of the trustee of the Trust, and, in their sole discretion,
may apply for and procure insurance on the life of a Participant, in such
amounts and in such forms as the Employer or trustee of the Trust may
elect.  The Employers or the trustee of
the Trust, as applicable, shall be the sole owner and beneficiary of any such
insurance.  The Participant shall have no
interest whatsoever in any such policy or policies, and at the request of the
Employers shall submit to medical examinations and supply such information and
execute such documents as may be required by the insurance company or companies
to whom the Employers have applied for insurance.


 


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12.17       Legal
Fees To Enforce Rights After Change in Control.  The Company and each Employer is aware that
upon the occurrence of a Change in Control, the Board or the board of directors
of a Participant’s Employer (which might then be composed of new members) or a
shareholder of the Company or the Participant’s Employer, or of any successor
corporation might then cause or attempt to cause the Company, the Participant’s
Employer or such successor to refuse to comply with its obligations under the
Plan and might cause or attempt to cause the Company or the Participant’s
Employer to institute, or may institute, litigation seeking to deny
Participants the benefits intended under the Plan.  In these circumstances, the purpose of the
Plan could be frustrated.  Accordingly,
if, following a Change in Control, (i) a Participant or Beneficiary
institutes any litigation or other legal action which seeks to recover benefits
under the Plan or which otherwise asserts that the Committee, the Company, the
Employer or any successor entity to the Company or the Employer has failed to
comply with any of its obligations under this Plan or any agreement thereunder
with respect to such Participant or Beneficiary, or if the Committee, the
Company, the Employer or any other person takes any action to declare this Plan
void or unenforceable or institutes any litigation or other legal action designed
to deny, diminish or to recover from any Participant or Beneficiary the
benefits intended to be provided under the Plan, and (ii) the Participant
or Beneficiary retains counsel in connection with such litigation or legal
action, then, if the final decision of a court of competent jurisdiction
determines that the Participant or Beneficiary has prevailed with respect to
all or part of such litigation or legal action the Company and such Employer
(who shall be jointly and severally liable) shall be required to pay the
reasonable attorneys fees and expenses of the Participant or Beneficiary in
connection with the initiation or defense of such litigation or legal action
with respect to such matters, whether by or against the Committee, the Company,
the Employer or any director, officer, shareholder or other person affiliated
with the Company, the Employer or any successor thereto in any jurisdiction.  If the Company or such Employer reimburses
the Participant or Beneficiary for any such legal fees, such reimbursement
shall be made within thirty (30) days of the date of the court’s final
decision.


 


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IN WITNESS WHEREOF, this Plan document, originally adopted as of October 31,
2005, is hereby amended and restated as of December 18, 2008.


 


 


	
   

  	
  “Company”

  
	
   

  	
   

  
	
   

  	
  Guess?, Inc., a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Dennis R. Secor

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Dennis R. Secor

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief
  Financial Officer

  



 


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