Exhibit 10.9


 


GUESS?,
INC.


ANNUAL
INCENTIVE BONUS PLAN


(AS
AMENDED AND RESTATED DECEMBER 18, 2008)


 


Section 1.   Purposes


 


The purposes of the Guess?, Inc.
Annual Incentive Bonus Plan (the “Plan”) are (i) to provide greater
motivation for selected key employees of Guess?, Inc., a Delaware
corporation (the “Company”), and its Subsidiaries (as defined in Section 3(c) below)
to attain and maintain the highest standards of performance, (ii) to
attract and retain executives of outstanding competence, and (iii) to
direct the energies of executives toward the achievement of specific business
goals established for the Company and its Subsidiaries.


 


The Plan is designed to qualify
compensation paid under the Plan to Covered Employees (as defined in Section 3(a) below)
as “performance-based compensation” as that term is defined in Section 162(m) of
the Internal Revenue Code of 1986, as amended, and the regulations promulgated
thereunder (“Section 162(m)”).


 


Section 2.   Administration and Interpretation


 


(a)   The Plan shall be administered by the
Compensation Committee (the “Committee”) of the Board of Directors of the
Company (the “Board”), which shall consist of not less than two members of the
Board who qualify as “outside directors” as defined under Section 162(m).
The Committee may designate all or any portion of its power and authority under
this Plan to any sub-committee of the Committee or to any executive officer or
executive officers of the Company (each an “Authorized Committee Designee”);
provided that no such designation shall be permitted or effective with respect
to any award to, or any other matter concerning, any Covered Employee. An
Authorized Committee Designee, to the extent provided by the Committee, shall
have and may exercise all the power and authority of the Committee hereto,
subject to the limitations set forth in the immediately preceding sentence.


 


(b)   The Committee is authorized to interpret the
Plan and may from time to time adopt such rules and regulations for
carrying out the Plan as it may deem necessary or advisable. Decisions of the
Committee shall be final, conclusive and binding upon all parties, including,
without limitation, the Company and the key employees who participate in the
Plan.


 


(c)   The Plan shall be administered to comply with
Section 162(m) and, if any provisions of the Plan cause any award to
a Covered Employee to not qualify as performance-based compensation under Section 162(m),
that provision shall be stricken from this Plan, but the other provisions of
the Plan shall remain in effect. Any action striking any portion of the Plan
shall modify the stricken terms as narrowly as possible to give as much effect
as possible to the intentions of the parties under the Plan.


 

















 


Section 3.   Participation


 


(a)   Participation in the Plan during any fiscal
year shall be limited to (i) any person serving as Chief Executive Officer
of the Company and each other executive officer of the Company that the
Committee determines, in its discretion, is or may be a “covered employee” of the
Company within the meaning of Section 162(m) (“Covered Employees”)
and (ii) those key employees of the Company and its Subsidiaries, other
than the Covered Employees, who, in the sole opinion of the Committee, are in a
position to have a significant impact on the performance of the Company and who
are selected by the Committee (“Key Employees” and together with the Covered
Employees, “Participants”); provided that participation by an employee of a
Subsidiary shall be subject to approval of the Plan by such Subsidiary’s Board
of Directors, which approval shall constitute the Subsidiary’s agreement to
pay, at the direction of the Committee, awards directly to its employees or to
reimburse the Company for the cost of such participation in accordance with rules adopted
by the Committee.


 


(b)   Unless otherwise determined by the Committee
in its sole and absolute discretion, or as provided in a Participant’s
employment agreement, if a Participant ceases to be employed by the Company
and/or its Subsidiaries prior to the end of a fiscal year for any reason other
than disability (as determined by the Company), retirement at or after age 55,
or death, his or her participation in the Plan for such year will terminate
forthwith and he or she will not be entitled to any award for such year. If,
prior to the end of a fiscal year, a Participant’s employment ceases because of
disability (as determined by the Company), retirement at or after age 55, or
death, or if the effective date of participation by a Participant for any year
shall be after the first day of such fiscal year, the Participant shall be
entitled to receive only that proportion of the amount, if any, that he or she
otherwise would have received under the Plan for the full fiscal year which the
number of days of his or her participation in the Plan during such fiscal year
bears to the total number of days in such fiscal year; provided, however, that
if the effective date of participation by a Covered Employee for any fiscal
year shall be after the first day of the fiscal year, then the Committee must
establish the Performance Goals (as defined in Section 4(d) below)
for such Covered Employee while the performance relating to such Performance
Goals remain substantially uncertain within the meaning of Section 162(m) and
in no event after 25% of the fiscal year has elapsed.


 


(c)   The term “Subsidiary” shall mean any
corporation at least 50% of whose issued and outstanding voting stock is owned,
directly or indirectly by the Company.


 


Section 4.   Determination of Incentive Awards


 


Within the time period
prescribed by Section 162(m) for each fiscal year, the Committee may
authorize awards to Participants pursuant to either or both of the following
methods in clauses (a) and (b) below:


 


(a)   For each fiscal year, the Committee shall: (i) determine
the Participants who are to be eligible to receive performance-based awards
under the Plan during such year, (ii) notify each such Participant in
writing concerning his or her selection for participation in the Plan for such
year, (iii) select the Performance Criteria applicable to such year for
each such Participant and 


 

















 


(iv) establish, in terms of an objective
formula or standard for each Participant, the Performance Goal and the amount
of each award which may be earned for such year if such Performance Goal is
achieved.


 


(b)   The Committee may in its sole and absolute
discretion provide for discretionary bonuses for any of the Key Employees.


 


(c)   The term “Performance Criteria” means the
criteria that the Committee selects for purposes of establishing the
Performance Goal or Performance Goals for a Participant. The Performance
Criteria that will be used to establish Performance Goals are limited to the
following: net earnings, operating earnings or income, earnings per share, cash
flow, absolute and/or relative return on equity or assets, pre-tax profits,
earnings growth, revenue growth, share price growth, shareholder returns, gross
or net profit margin, comparison to peer companies, or any combination of the
foregoing, any of which may be measured either in absolute terms, or as
compared to any incremental increase, or as compared to the results of a peer
group.


 


(d)   The term “Performance Goals” means the goals
established in writing by the Committee for the fiscal year based upon the
Performance Criteria. The Performance Goal may be expressed in terms of overall
Company performance or the performance of an operating unit, business unit,
segment, subsidiary or other division or any portion or combination thereof of
the Company.


 


(e)   Actual financial performance shall be
measured by reference to the Company’s financial records and the consolidated
financial statements of the Company. In determining performance, the Committee
in its sole and absolute discretion shall, in the case of awards to Covered
Employees, and may, in the case of awards to Key Employees, direct that
adjustments to the Performance Goals or actual financial performance as
reported be made to reflect extraordinary organizational, operational or other
changes that have occurred during such fiscal year, such as (without
limitation) acquisitions, dispositions, expansions, contractions, material
non-recurring items of income or loss or events that might create unwarranted
hardships or windfalls to Participants, in each case, with respect to Covered
Employees, only to the extent consistent with the requirements of Section 162(m) to
qualify such awards as performance-based compensation. Notwithstanding the
foregoing, the Committee may, by express provision with respect to a specific
award provide at the time the performance goals are established that one or
more of the adjustments in the foregoing sentence will not be made with respect
to the award or establish such other events or circumstances, consistent with Section 162(m),
with respect to which the Committee will make appropriate adjustment to the
award. The Committee is authorized at any time during or after the fiscal year
to increase (except with respect to awards payable to Covered Employees),
reduce or eliminate the amount of an award payable to any Participant for any
reason. The Committee may also provide that the Chief Executive Officer or
Chairman of the Board shall have the discretion to increase or decrease the
award otherwise payable to any Key Employee based upon their individual
performance during the fiscal year.


 

















 


Section 5.   Awards


 


(a)   No later than 90 days after the last day of
each fiscal year, the Committee shall determine awards to Participants for such
fiscal year by comparing actual financial performance to the Performance Goals,
Performance Criteria and amounts of awards adopted by the Committee for such
year and the Committee shall, with respect to Covered Employees, certify, by
resolution or other appropriate action in writing, that the amount of the award
has been accurately determined in accordance with the terms, conditions and
limits of the Plan and that the Performance Goals and any other material terms
established by the Committee or set forth in this Plan were in fact satisfied.
If the Committee has not adopted specified goals for the fiscal year, the
Committee shall meet no later than 90 days after the last day of such fiscal
year to determine if discretionary bonuses shall be awarded to Key Employees.
Each award under the Plan shall be paid in cash promptly after the amount of
the award has been determined and, with respect to awards to Covered Employees,
the Committee has certified that the relevant performance goals have been
achieved; provided, that in all events, each award shall be paid no later than
the 15th day of the third month following the Company’s first taxable year in
which such award is no longer subject to a substantial risk of forfeiture.


 


(b)   No award under this Plan shall be considered
as compensation in calculating any insurance, profit-sharing, retirement, or
other benefit for which the recipient is eligible unless any such insurance,
profit-sharing, retirement or other benefit is granted under a plan which
expressly provided that incentive compensation shall be considered as
compensation under such plan.


 


(c)   There is no requirement that the maximum
amount available for awards in any fiscal year be awarded, nor that an award
will be granted to any particular Participant for any fiscal year. Any portion
of any amount available for making awards for any fiscal year which shall not
have been awarded, shall not carry over or increase the maximum amount of
awards payable in any subsequent year.


 


(d)   Notwithstanding any provision in the Plan to
the contrary, the maximum award payable to any Participant under the Plan for
any calendar year shall be $3.2 million.


 


(e)   In the exercise of its discretion, the
Committee may allow a Participant to elect to defer the receipt of all or any
portion of an award under the Plan. Any such deferral shall be made pursuant to
the terms and conditions set forth in any deferred compensation plan or
arrangement adopted by the Company. In the case of any deferred payment of an
award to a Covered Employee after the attainment of the applicable Performance
Goal, any amount in excess of the amount otherwise payable shall be based on
either Moody’s Average Corporate Bond Yield (or such other rate of interest
that is deemed to constitute a “reasonable rate of interest” for purposes of Section 162(m))
over the deferral period or the return over the deferral period of one or more
predetermined actual investments such that the amount payable at the later date
will be based upon actual returns, including any decrease or increase in the
value of the investment(s).


 

















 


Section 6.   Death of Participant


 


If a Participant dies before or
after termination of employment but prior to the payment date of an award for
which such Participant is otherwise entitled hereunder, any such unpaid award
shall be paid to his or her legal representatives or, where the Committee has
authorized the designation of beneficiaries, to such beneficiaries as may have
been designated by the Participant, at the time that awards are payable to
Participants generally under Section 5(a).


 


Section 7.   Non-Assignability and Contingent Nature of
Rights


 


No Participant, no person
claiming through him or her, nor any other person shall have any right or
interest in the Plan or its continuance, or in the payment of any award under
the Plan, unless and until all the provisions of the Plan, the rules adopted
thereunder, and restrictions and limitations on the award itself have been
fully complied with. No rights under the Plan, contingent or otherwise, shall
be transferable, assignable or subject to any pledge or encumbrance of any
nature.


 


Section 8.   Source of Payments


 


The Company shall not have any
obligation to establish any separate fund or trust or other segregation of
assets to provide for payments under the Plan. To the extent any person
acquires any rights to receive payments hereunder from the Company, such rights
shall be no greater than those of an unsecured creditor.


 


Section 9.   Tax Withholding


 


The Company or a Subsidiary
thereof, as appropriate, shall have the right to deduct from all payments made
under the Plan to a Participant or to a Participant’s beneficiary or
beneficiaries any Federal, state or local taxes required by law to be withheld
with respect to such payments.


 


Section 10.   Duration, Termination and Amendment


 


Subject to approval by the
Company’s stockholders at the 2005 annual meeting of Company stockholders, the
Plan shall be effective for the fiscal year of the Company commencing January 1,
2005 and shall continue in effect until the fifth anniversary of the date of
such stockholder approval, unless earlier terminated as described below. Upon
such approval of the Plan by the Company’s stockholders at the 2005 annual
meeting of Company stockholders, all awards approved or granted under the Plan
on or after January 1, 2005 shall be fully effective.


 


The Committee may at any time
terminate or from time to time modify or suspend, in whole or in part, and if
suspended, may reinstate, any or all of the provisions of the Plan in such
respects as the Committee may deem advisable; provided that no such termination
or modification shall impair any rights which have accrued under the Plan; and
provided further, that the Committee may not without stockholder approval adopt
any amendment that would require the vote of stockholders pursuant to Section 162(m).


 

















 


Section 11.   No Restriction on Right to Effect Changes


 


The Plan shall not affect in
any way the right or power of the Company or its stockholders to make or
authorize any sale of all or any portion of the assets of the Company or any
Subsidiary, any merger or consolidation of the Company or any Subsidiary, a
reorganization, dissolution or liquidation of the Company or any Subsidiary, or
any other event or series of events, whether of a similar character or
otherwise.


 


Section 12.   Headings


 


The headings of sections herein
are included solely for convenience of reference and shall not affect the
meaning of any of the provisions of the Plan.


 


Section 13.   Governing Law


 


This Plan shall be governed by
and construed in accordance with the laws of the State of California.


 


Section 14.   No Contract of Employment or Right to Awards


 


Nothing contained herein shall
be construed as a contract of employment between the Company and any
Participant, or as giving a right to any person to be granted awards under the
Plan or to continue in the employment of the Company or any of its
Subsidiaries, or as limiting the right of the Company or any of its
Subsidiaries to discharge any Participant at any time, with or without cause.