Exhibit 4.1


 


Guess?, Inc.


Nonqualified
Deferred Compensation Plan


Master
Plan Document


 


 


Effective January 1, 2006


 





















 


TABLE OF CONTENTS


 


	
  ARTICLE 1

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  	
  Selection,
  Enrollment, Eligibility

  	
   

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Selection by
  Committee

  	
   

  
	
  2.2

  	
  Enrollment
  and Eligibility Requirements; Commencement of Participation

  	
   

  
	
  2.3

  	
  Termination
  of a Participant’s Eligibility

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  	
  Deferral
  Commitments/Company Contribution Amounts/Company Restoration Matching Amounts
  /Vesting/Crediting/Taxes

  	
   

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  Minimum Deferrals

  	
   

  
	
  3.2

  	
  Maximum Deferral

  	
   

  
	
  3.3

  	
  Election
  to Defer; Effect of Election Form

  	
   

  
	
  3.4

  	
  Withholding
  and Crediting of Annual Deferral Amounts

  	
   

  
	
  3.5

  	
  Company
  Contribution Amount

  	
   

  
	
  3.6

  	
  Company
  Restoration Matching Amount

  	
   

  
	
  3.7

  	
  Crediting
  of Amounts after Benefit
  Distribution

  	
   

  
	
  3.8

  	
  Vesting

  	
   

  
	
  3.9

  	
  Crediting/Debiting
  of Account Balances

  	
   

  
	
  3.10

  	
  FICA and Other
  Taxes

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  	
  Scheduled
  Distribution; Unforeseeable Financial Emergencies

  	
   

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Scheduled
  Distribution

  	
   

  
	
  4.2

  	
  Postponing
  Scheduled Distributions

  	
   

  
	
  4.3

  	
  Other
  Benefits Take Precedence Over Scheduled Distributions

  	
   

  
	
  4.4

  	
  Unforeseeable
  Financial Emergencies

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  	
  Change
  In Control Benefit

  	
   

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  Change in Control Benefit

  	
   

  
	
  5.2

  	
  Payment of Change in Control
  Benefit

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  	
  Retirement
  Benefit

  	
   

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  Retirement Benefit

  	
   

  
	
  6.2

  	
  Payment
  of Retirement Benefit

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  	
  Termination
  Benefit

  	
   

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  Termination
  Benefit

  	
   

  
	
  7.2

  	
  Payment
  of Termination Benefit

  	
   

  



 


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  ARTICLE 8

  	
  Disability
  Benefit

  	
   

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  Disability Benefit

  	
   

  
	
  8.2

  	
  Payment of
  Disability Benefit

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  	
  Death Benefit

  	
   

  
	
   

  	
   

  	
   

  
	
  9.1

  	
  Death Benefit

  	
   

  
	
  9.2

  	
  Payment of
  Death Benefit

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  	
  Beneficiary
  Designation

  	
   

  
	
   

  	
   

  	
   

  
	
  10.1

  	
  Beneficiary

  	
   

  
	
  10.2

  	
  Beneficiary
  Designation; Change; Spousal Consent

  	
   

  
	
  10.3

  	
  Acknowledgement

  	
   

  
	
  10.4

  	
  No
  Beneficiary Designation

  	
   

  
	
  10.5

  	
  Doubt as to
  Beneficiary

  	
   

  
	
  10.6

  	
  Discharge of
  Obligations

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  	
  Leave of Absence

  	
   

  
	
   

  	
   

  	
   

  
	
  11.1

  	
  Paid Leave of
  Absence

  	
   

  
	
  11.2

  	
  Unpaid Leave of
  Absence

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12

  	
  Termination
  of Plan, Amendment or Modification

  	
   

  
	
   

  	
   

  	
   

  
	
  12.1

  	
  Termination of
  Plan

  	
   

  
	
  12.2

  	
  Amendment

  	
   

  
	
  12.3

  	
  Effect of Payment

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13

  	
  Administration

  	
   

  
	
   

  	
   

  	
   

  
	
  13.1

  	
  Committee Duties

  	
   

  
	
  13.2

  	
  Administration
  Upon Change In Control

  	
   

  
	
  13.3

  	
  Agents

  	
   

  
	
  13.4

  	
  Binding
  Effect of Decisions

  	
   

  
	
  13.5

  	
  Indemnity of
  Committee

  	
   

  
	
  13.6

  	
  Employer
  Information

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 14

  	
  Other
  Benefits and Agreements

  	
   

  
	
   

  	
   

  	
   

  
	
  14.1

  	
  Coordination
  with Other Benefits

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 15

  	
  Claims
  Procedures

  	
   

  
	
   

  	
   

  	
   

  
	
  15.1

  	
  Presentation of
  Claim

  	
   

  
	
  15.2

  	
  Notification
  of Decision

  	
   

  



 


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  15.3

  	
  Review of a
  Denied Claim

  	
   

  
	
  15.4

  	
  Decision on Review

  	
   

  
	
  15.5

  	
  Legal Action

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 16

  	
  Trust

  	
   

  
	
   

  	
   

  	
   

  
	
  16.1

  	
  Establishment
  of the Trust

  	
   

  
	
  16.2

  	
  Interrelationship
  of the Plan and the Trust

  	
   

  
	
  16.3

  	
  Distributions
  From the Trust

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 17

  	
  Miscellaneous

  	
   

  
	
   

  	
   

  	
   

  
	
  17.1

  	
  Status of Plan

  	
   

  
	
  17.2

  	
  Unsecured
  General Creditor

  	
   

  
	
  17.3

  	
  Employer’s
  Liability

  	
   

  
	
  17.4

  	
  Nonassignability

  	
   

  
	
  17.5

  	
  Not a
  Contract of Employment

  	
   

  
	
  17.6

  	
  Furnishing
  Information

  	
   

  
	
  17.7

  	
  Terms

  	
   

  
	
  17.8

  	
  Captions

  	
   

  
	
  17.9

  	
  Governing Law

  	
   

  
	
  17.10

  	
  Notice

  	
   

  
	
  17.11

  	
  Successors

  	
   

  
	
  17.12

  	
  Spouse’s Interest

  	
   

  
	
  17.13

  	
  Validity

  	
   

  
	
  17.14

  	
  Incompetent

  	
   

  
	
  17.15

  	
  Court Order

  	
   

  
	
  17.16

  	
  Insurance

  	
   

  
	
  17.17

  	
  Legal
  Fees To Enforce Rights After Change in Control

  	
   

  



 


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GUESS?, INC.


NONQUALIFIED DEFERRED
COMPENSATION PLAN


 


Effective January 1,
2006


 


Purpose


 


The
purpose of this Plan is to provide specified benefits to Directors and 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 the
purposes of this Plan, unless otherwise clearly apparent from the context, the
following phrases or terms shall have the following indicated meanings:


 


1.1                                 “Account
Balance” shall mean, with respect to a Participant, an entry on the records of
the Employer equal to the sum of the Participant’s Annual Accounts.  The Account Balance shall be a bookkeeping
entry only and shall be utilized solely as a device for the measurement and
determination of the amounts to be paid to a Participant, or his or her
designated Beneficiary, pursuant to this Plan.


 


1.2                                 “Annual
Account” shall mean, with respect to a Participant, an entry on the records of
the Employer equal to the following amount: (i) the sum of the Participant’s
Annual Deferral Amount, Company Contribution Amount and Company Restoration
Matching Amount for any one Plan Year, plus (ii) amounts credited or
debited to such amounts pursuant to this Plan, less (iii) all
distributions made to the Participant or his or her Beneficiary pursuant to
this Plan that relate to the Annual Account for such Plan Year.  The Annual Account shall be a bookkeeping
entry only and shall be utilized solely as a device for the measurement and
determination of the amounts to be paid to a Participant, or his or her
designated Beneficiary, pursuant to this Plan.


 


1.3                                 “Annual
Deferral Amount” shall mean that portion of a Participant’s Base Salary, Bonus,
Director Fees and LTIP Amounts that a Participant defers in accordance with Article 3
for any one Plan Year, without regard to whether such amounts are withheld and
credited during such Plan Year.  In the
event of a Participant’s Retirement, Disability, death or Termination of
Employment prior to the end of a Plan Year, such year’s Annual Deferral Amount
shall be the actual amount withheld prior to such event.


 


1.4                                 “Annual
Installment Method” shall be an annual installment payment over the number of
years selected by the Participant in
accordance with this Plan, calculated as follows: (i) for the first annual
installment, the vested portion of each Annual Account shall be calculated as
of the close of business on or around the Participant’s Benefit Distribution Date,
as determined by the Committee in its sole discretion, and (ii) for remaining annual
installments, the vested portion of each applicable Annual Account shall be
calculated on or around the first business day of each Plan Year following the
Plan Year in which the Participant’s Benefit Distribution Date occurs.


 


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Each annual installment shall be calculated
by multiplying this balance by a fraction, the numerator of which is one and
the denominator of which is the remaining number of annual payments due to the
Participant.  By way of example, if the
Participant elects a ten (10) year Annual Installment Method as the form
of Retirement Benefit for an Annual Account, the first payment shall be 1/10 of
the vested balance of such Annual Account, calculated as described in this
definition.  The following year, the
payment shall be 1/9 of the vested balance of such Annual Account, calculated
as described in this definition.


 


1.5                                 “Base
Salary” shall mean the annual cash compensation relating to services performed
during any calendar year, excluding distributions from nonqualified deferred
compensation plans, bonuses, commissions, overtime, fringe benefits, stock
options, relocation expenses, incentive payments, non-monetary awards, director
fees and other fees, and automobile and other allowances paid to a Participant
for employment services rendered (whether or not such allowances are included
in the Employee’s gross income).  Base
Salary shall be calculated before reduction for compensation voluntarily
deferred or contributed by the Participant pursuant to all qualified or
nonqualified plans of any Employer and shall be calculated to include amounts
not otherwise included in the Participant’s gross income under Code Sections
125, 402(e)(3), 402(h), or 403(b) pursuant to plans established by any
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 Employee.


 


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


 


1.7                                 “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.


 


1.8                                 “Benefit
Distribution Date” shall mean a date that triggers distribution of a
Participant’s vested benefits.  A Benefit
Distribution Date for a Participant shall be determined upon the occurrence of
any one of the following:


 


(a)                                  If
the Participant Retires, the Benefit Distribution Date for his or her vested
Account Balance shall be (i) the
last day of the six-month period immediately following the date on which the
Participant Retires if the Participant is a Key Employee, and (ii) for all other Participants, the date on which the Participant Retires;
provided, however, in the event the Participant changes the Retirement
Benefit election for one or more Annual Accounts in accordance with Section 6.2(b), the Benefit Distribution Date
for such Annual Account(s) shall be postponed
in accordance with such section 6.2(b); or


 


(b)                                 If
the Participant experiences a Termination of Employment, the Benefit
Distribution Date for his or her vested Account Balance shall be (i) the last day of the six-month
period immediately following the date on which the Participant experiences a
Termination of Employment if the Participant is a Key Employee, and (ii) for
all other Participants, the date on
which the Participant experiences a Termination of Employment; or


 


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(c)                                  If
the Participant dies prior to the complete distribution of his or her vested
Account Balance, the Participant’s Benefit Distribution Date shall be the date
on which the Committee is provided with proof that is satisfactory to the
Committee of the Participant’s death; or


 


(d)                                 If
the Participant becomes Disabled, the Participant’s Benefit Distribution Date
shall be the date on which the Participant becomes Disabled; or


 


(e)                                  If (i) a Change in Control occurs prior
to the Participant’s Termination of Employment, Retirement, death or
Disability, and (ii) the Participant has elected to receive a Change in
Control Benefit, as set forth in Section 5.1 below, the Participant’s
Benefit Distribution Date shall be the date on which the Company experiences a
Change in Control, as determined by the Committee in its sole discretion.


 


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


 


1.10                           “Bonus”
shall mean any compensation otherwise payable in cash, in addition to Base
Salary and LTIP Amounts, earned by a Participant for services rendered during a
Plan Year, under the Guess?, Inc. Annual Incentive Bonus Plan and/or such other
annual bonus or cash incentive plan or arrangement designated by the Committee.


 


1.11                           “Change in
Control” shall mean a change in the ownership or effective control of the
Company, or in the ownership of a substantial portion of the assets of the
Company, within the meaning of Section 409A(a)(2)(A)(v) of the Code
and related Treasury guidance.


 


1.12                           “Change in Control Benefit” shall have the
meaning set forth in Article 5.


 


1.13                           “Claimant”
shall have the meaning set forth in Section 15.1.


 


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


 


1.15                           “Committee”
shall mean the committee described in Article 13.


 


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


 


1.17                           “Company
Contribution Amount” shall mean, for any one Plan Year, the amount determined
in accordance with Section 3.5.


 


1.18                           “Company
Restoration Matching Amount” shall mean, for any one Plan Year, the amount
determined in accordance with Section 3.6.


 


1.19                           “Death
Benefit” shall mean the benefit set forth in Article 9.


 


1.20                           “Director”
shall mean any member of the board of directors of any Employer.


 


1.21                           “Director
Fees” shall mean the fees otherwise payable in cash to a Director by any
Employer, including retainer fees, committee chair fees and meetings fees, as
compensation for serving on the board of directors.


 


1.22                           “Disability”
or “Disabled” shall mean that a Participant is (i) 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 12 months, or (ii) by
reason of any medically determinable physical or mental impairment


 


3





















 


which can be expected to result in death or
can be expected to last for a continuous period of not less than 12 months,
receiving income replacement benefits for a period of not less than 3 months
under an accident or health plan covering employees of the Participant’s
Employer.


 


1.23                           “Disability
Benefit” shall mean the benefit set forth in Article 8.


 


1.24                           “Election
Form” shall mean the form, which may be in electronic format, 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.


 


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


 


1.26                           “Employer(s)”
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.


 


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


 


1.28                           “401(k)
Plan” shall mean, with respect to an Employer, a plan qualified under Code Section 401(a) that
contains a cash or deferral arrangement described in Code Section 401(k),
adopted by the Employer, as it may be amended from time to time, or any
successor thereto.


 


1.29                           “Key
Employee” shall mean any Participant who is a “key employee” (as defined in
Code Section 416(i) without regard to paragraph (5) thereof) of
any Employer which is a corporation whose stock is publicly traded on an
established securities market or otherwise, as determined by the Committee in
accordance with Code Section 409A and related Treasury guidance and
Regulations.


 


1.30                           “LTIP
Amounts” shall mean the cash portion of the compensation attributable to a Plan
Year that is earned by a Participant as an Employee under any Employer’s
long-term incentive plan or any other long-term incentive arrangement
designated by the Committee.


 


1.31                           “Participant”
shall mean any Employee or Director (i) who is selected to participate in
the Plan, (ii) who submits an executed Plan Agreement, Election Form and
Beneficiary Designation Form, which are accepted by the Committee, and (iii) whose
Plan Agreement has not terminated.


 


1.32                           “Plan”
shall mean the Guess?, Inc. Nonqualified Deferred Compensation Plan, which
shall be evidenced by this instrument and by each Plan Agreement, as they may
be amended from time to time.


 


1.33                           “Plan
Agreement” shall mean a written agreement, as may be amended from time to time,
which is entered into by and between an Employer and a Participant.  Each Plan Agreement executed by a Participant
and the Participant’s Employer shall provide for the entire benefit to which
such Participant is entitled under the Plan; should there be more than one Plan
Agreement, the Plan Agreement bearing the latest date of acceptance by the
Employer shall supersede all previous Plan Agreements in their entirety and
shall govern such entitlement.  The terms
of any Plan Agreement may be different for any Participant, and any Plan
Agreement 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 to by both the
Employer and the Participant.


 


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


 


1.35                           “Retirement”,
“Retire(s)” or “Retired” shall mean separation from service with all Employers
for any reason other than a leave of absence, death or Disability, as
determined in accordance with Code Section 409A and related Treasury
guidance and Regulations, on or after the date on which such Participant’s age
plus Years of Service equals at least sixty-five (65).  If a Participant is both an Employee and a
Director, Retirement shall not occur until he or she separates from service with
all Employers as both an Employee and a Director.


 


1.36                           “Retirement
Benefit” shall mean the benefit set forth in Article 6.


 


1.37                           “Scheduled
Distribution” shall mean the distribution set forth in Section 4.1.


 


1.38                           “Terminate
the Plan”, “Termination of the Plan” shall mean a determination by an Employer’s
board of directors that (i) all of its Participants shall no longer
be eligible to participate in the Plan, (ii) all deferral elections for
such Participants shall terminate, and (iii) such Participants shall no
longer be eligible to receive company contributions under this Plan.


 


1.39                           “Termination
Benefit” shall mean the benefit set forth in Article 7.


 


1.40                           “Termination
of Employment” shall mean the separation from service with all Employers,
voluntarily or involuntarily, for any reason other than Retirement, Disability,
death or an authorized leave of absence, as determined in accordance with Code Section 409A
and related Treasury guidance and Regulations. 
If a Participant is both an Employee and a Director, a Termination of
Employment shall not occur until he or she separates from service with all
Employers as both an Employee and a Director.


 


1.41                           “Trust”
shall mean one or more trusts established by the Company in accordance with Article 16.


 


1.42                           “Unforeseeable
Financial Emergency” shall mean an unforeseeable emergency that is caused by an
event beyond the control of the Participant that would result in severe
financial hardship to the Participant resulting from (i) a sudden and
unexpected illness or accident of the Participant, the Participant’s spouse, or
a dependent (as defined in Code Section 152(a)) of the Participant, (ii) a
loss of the Participant’s property due to casualty, or (iii) such other
similar extraordinary and unforeseeable circumstances arising as a result of
events beyond the control of the Participant, all as determined in the sole
discretion of the Committee.


 


1.43                           “Years of
Service” shall mean the total number of full years in which a Participant has
been employed by one or more Employers. 
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.


 


ARTICLE 2

Selection, Enrollment, Eligibility


 


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


 


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compensated
Employees.  From that group, the
Committee shall select, in its sole discretion, those individuals who may
actually participate in this Plan.


 


2.2                                 Enrollment
and Eligibility Requirements; Commencement of Participation.


 


(a)                                  As a
condition to participation, each Director or selected Employee who is eligible
to participate in the Plan effective as of the first day of a Plan Year shall
complete, execute and return to the Committee a Plan Agreement, an Election Form and
a Beneficiary Designation Form, prior to the first day of such Plan Year, or
such other earlier deadline as may be established by the Committee in its sole
discretion.  In addition, the Committee
shall establish from time to time such other enrollment requirements as it
determines, in its sole discretion, are necessary.


 


(b)                                 A
Director or selected Employee who first becomes eligible to participate in this
Plan after the first day of a Plan Year must complete these requirements within
thirty (30) days after he or she first becomes eligible to participate in the
Plan, or within such other earlier deadline as may be established by the
Committee, in its sole discretion, in order to participate for that Plan
Year.  In such event, such person’s
participation in this Plan shall not commence earlier than the date determined
by the Committee pursuant to Section 2.2(c) and such person shall not
be permitted to defer under this Plan any portion of his or her Base Salary,
Bonus, LTIP Amounts and/or Director Fees that are paid with respect to services
performed prior to his or her participation commencement date, except to the
extent permissible under Code Section 409A
and related Treasury guidance or Regulations.


 


(c)                                  Each
Director or selected Employee who is eligible to participate in the Plan shall
commence participation in the Plan on the date that the Committee determines,
in its sole discretion, that the Director or Employee 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.  Notwithstanding the foregoing,
the Committee shall process such Participant’s deferral election as soon as
administratively practicable after such deferral election is submitted to and
accepted by the Committee.


 


(d)                                 If a
Director or an Employee fails to meet all requirements contained in this Section 2.2
within the period required, that Director or Employee shall not be eligible to
participate in the Plan during such Plan Year.


 


2.3                                 Termination
of a Participant’s Eligibility.  If the Committee determines that an Employee
Participant no longer qualifies as a member of a select group of management or
highly compensated employees, as membership in such group is determined in
accordance with Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA, or that the inclusion of Directors in this
Plan could jeopardize the status of this Plan as a plan 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 Committee shall have the right, in its sole discretion, to (i) terminate
any deferral election the Participant has made for the remainder of the Plan
Year in which the Committee makes such determination, (ii) prevent the
Participant from making future deferral elections, and/or (iii) take
further action that the Committee deems appropriate.  Notwithstanding


 


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the foregoing,
in the event of a Termination of the Plan in accordance with Section 1.38,
the termination of the affected Participants’ eligibility for participation in
the Plan shall not be governed by this Section 2.3, but rather shall be
governed by Section 12.1.  In the
event that a Participant is no longer eligible to defer compensation under this
Plan, the Participant’s Account Balance shall continue to be governed by the
terms of this Plan until such time as the Participant’s Account Balance is paid
in accordance with the terms of this Plan.


 


ARTICLE 3

Deferral Commitments/Company Contribution Amounts/


Company
Restoration Matching Amounts/ Vesting/Crediting/Taxes


 


3.1                                 Minimum Deferrals. 


 


(a)                                  Annual
Deferral Amount.  For each Plan Year, a Participant may elect
to defer, as his or her Annual Deferral Amount, Base Salary, Bonus, LTIP Amounts and/or Director Fees
in the following minimum amounts for each deferral elected: 


 


	
  Deferral

  	
   

  	
  Minimum Amount

  	
   

  
	
  Base Salary,
  Bonus, and/or LTIP Amounts

  	
   

  	
  $5,000
  aggregate

  	
   

  
	
  Director
  Fees

  	
   

  	
  $0

  	
   

  



 


If the Committee determines, in its sole
discretion, prior to the beginning of a Plan Year that a Participant has made
an election for less than the stated minimum amounts, or if no election is
made, the amount deferred shall be zero. 
If the Committee determines, in its sole discretion, at any time after
the beginning of a Plan Year that a Participant has deferred less than the
stated minimum amounts for that Plan Year, any amount credited to the
Participant’s applicable Annual Account as the Annual Deferral Amount for that
Plan Year shall be distributed to the Participant no later than two and
one-half months after the last day of such Plan Year.


 


(b)                                 Short
Plan Year. 
Notwithstanding the foregoing, if a Participant first becomes a
Participant after the first day of a Plan Year, the minimum Annual Deferral Amount shall be an amount equal to the
minimum set forth above, multiplied by a fraction, the numerator of which is
the number of complete months remaining in the Plan Year and the denominator of
which is 12.


 


3.2                                 Maximum Deferral.


 


(a)                                  Annual
Deferral Amount.  For each Plan Year, a Participant may elect
to defer, as his or her Annual Deferral Amount, Base Salary, Bonus, LTIP
Amounts and/or Director Fees up to the following maximum percentages for each
deferral elected: 


 


	
  Deferral

  	
   

  	
  Maximum Percentage

  	
   

  
	
  Base Salary

  	
   

  	
  75

  	
  %

  
	
  Bonus

  	
   

  	
  100

  	
  %

  
	
  LTIP Amounts

  	
   

  	
  100

  	
  %

  
	
  Director Fees

  	
   

  	
  100

  	
  %

  



 


7





















 


(b)                                 Short Plan Year.  Notwithstanding the
foregoing, if a Participant first becomes a Participant after the first day of
a Plan Year, the maximum Annual
Deferral Amount shall be limited to the amount of compensation not yet earned
by the Participant as of the date the Participant submits a Plan Agreement and
Election Form to the Committee for acceptance, except to the extent
permissible under Code Section 409A
and related Treasury guidance or Regulations.


 


3.3                                 Election
to Defer; Effect of Election Form.


 


(a)                                  First
Plan Year. 
In connection with a Participant’s commencement of participation in the
Plan, the Participant shall make an irrevocable deferral election for the Plan
Year in which the Participant commences participation in the Plan, along with
such other elections as the Committee deems necessary or desirable under the
Plan.  For these elections to be valid,
the Election Form must be completed and signed by the Participant, timely
delivered to the Committee (in accordance with Section 2.2 above) and
accepted by the Committee.


 


(b)                                 Subsequent
Plan Years. 
For each succeeding Plan Year, an irrevocable deferral election for that
Plan Year, and such other elections as the Committee deems necessary or
desirable under the Plan, shall be made by timely delivering a new Election Form to
the Committee, in accordance with its rules and procedures, before the end
of the Plan Year preceding the Plan Year for which the election is made.  If no such Election Form is timely
delivered for a Plan Year, the Annual Deferral Amount shall be zero for that
Plan Year.


 


(c)                                  Performance-Based Compensation. Notwithstanding the foregoing, the
Committee may, in its sole discretion, determine that an irrevocable deferral
election pertaining to performance-based compensation may be made by timely
delivering an Election Form to the Committee, in accordance with its rules and
procedures, no later than six (6) months before the end of the performance
service period.  “Performance-based
compensation” shall be compensation based on services performed over a period
of at least twelve (12) months, in accordance with Code Section 409A and related
Treasury guidance or Regulations.  Until
such time as Treasury guidance provides the requirements for an amount to
qualify as “performance-based compensation” under Code Section 409A, the
Committee may utilize the definition of “bonus compensation” provided in
Treasury Notice 2005-1 in determining which amounts may be deferred by
delivering an Election Form to the Committee, in accordance with its rules and
procedures, no later than six (6) months before the end of the performance
service period.


 


3.4                                 Withholding
and Crediting of Annual Deferral Amounts.  For each Plan Year, the Base Salary portion
of the Annual Deferral Amount shall be withheld from each regularly scheduled
Base Salary payroll in equal amounts, as adjusted from time to time for
increases and decreases in Base Salary. 
The Bonus, LTIP Amounts and/or Director Fees portion of the Annual
Deferral Amount shall be withheld at the time the Bonus, LTIP Amounts or
Director Fees are or otherwise would be paid to the Participant, whether or not
this occurs during the Plan Year itself. 
Annual


 


8





















 


Deferral
Amounts shall be credited to the Participant’s Annual Account for such Plan
Year at the time such amounts would otherwise have been paid to the
Participant.


 


3.5                                 Company
Contribution Amount.


 


(a)                                  For
each Plan Year, an Employer may be required to credit amounts to a Participant’s
Annual Account in accordance with employment or other agreements entered into
between the Participant and the Employer, which amounts shall be part of the
Participant’s Company Contribution Amount for that Plan Year.  Subject to compliance with Code Section 409A
and related Treasury guidance, such amounts shall be credited to the
Participant’s Annual Account for the applicable Plan Year on the date or dates
prescribed by such agreements.


 


(b)                                 For
each Plan Year, an Employer, in its sole discretion, may, but is not required
to, credit any amount it desires to any Participant’s Annual Account under this
Plan, which amount shall be part of the Participant’s Company Contribution
Amount for that Plan Year.  The amount so
credited to a Participant may be smaller or larger than the amount credited to
any other Participant, and the amount credited to any Participant for a Plan
Year may be zero, even though one or more other Participants receive a Company
Contribution Amount for that Plan Year. 
The Company Contribution Amount described in this Section 3.5(b),
if any, shall be credited to the Participant’s Annual Account for the
applicable Plan Year on a date or dates to be determined by the Committee, in
its sole discretion.


 


3.6                                 Company
Restoration Matching Amount.  A Participant’s Company Restoration Matching
Amount, if any, for a Plan Year shall be equal to the “match” the Company would
have otherwise credited to the Participant’s account in the 401(k) Plan, assuming
that the amount of Base Salary deferred
into this Plan for such Plan Year had instead
been contributed to the 401(k) Plan (taking into account (i) the amount of the “match” the
Company makes to the Participant’s account in the 401(k) Plan during such Plan
Year, and (ii) limitations applicable to the 401(k) Plan imposed by the
Code, including but not limited to Code Sections 401(a)(17) and 402(g)).  The Participant’s Company Restoration
Matching Amount, if any, shall be credited to the Participant’s Annual Account on
or around April 1st of the Plan Year following the Plan Year to
which the Company Restoration Matching Amount relates.


 


3.7                                 Crediting of Amounts after Benefit
Distribution. 
Notwithstanding any provision in this Plan to the contrary, should the
complete distribution of a Participant’s vested Account Balance occur prior to
the date on which any portion of (i) the Annual Deferral Amount that a
Participant has elected to defer in accordance with Section 3.3, (ii) the
Company Contribution Amount, or (iii) the Company Restoration Matching
Amount, would otherwise be credited to the Participant’s Account Balance, such
amounts shall not be credited to the Participant’s Account Balance, but shall
be paid to the Participant in a manner determined by the Committee, in its sole
discretion.


 


3.8                                 Vesting.


 


(a)                                  A Participant
shall at all times be 100% vested in his or her deferrals of Base Salary,
Bonus, LTIP Amounts and Director’s Fees.


 


9





















 


(b)                                 A
Participant shall be vested in the portion of his or her Account Balance attributable
to any Company Contribution Amounts, plus amounts credited or debited on such
amounts (pursuant to Section 3.9), in accordance with the vesting
schedule(s) set forth in his or her Plan Agreement, employment agreement or any
other agreement entered into between the Participant and his or her
Employer.  If not addressed in such
agreements, a Participant shall vest in the portion of his or her Account
Balance attributable to any Company Contribution Amounts, plus amounts credited
or debited on such amounts (pursuant to Section 3.9), in accordance with
the vesting schedule declared by the Committee in its sole discretion.


 


(c)                                  A
Participant shall be vested in the portion of his or her Account Balance
attributable to any Company Restoration Matching Amounts, plus amounts credited
or debited on such amounts (pursuant to Section 3.9), only to the extent
that the Participant would be vested in such amounts under the provisions of
the 401(k) Plan, as determined by the Committee in its sole discretion.


 


(d)                                 Notwithstanding
anything to the contrary contained in this Section 3.8, in the event of a Change in Control, or upon a Participant’s Retirement,
death while employed by an Employer, or Disability, any amounts that are
not vested in accordance with Sections 3.8(b) or 3.8(c) above, shall
immediately become 100% vested (if it is not already vested in accordance with
the above vesting schedules).


 


(e)                                  Notwithstanding subsection 3.8(d) above,
the vesting schedules described in Sections 3.8(b) and 3.8(c) 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.  In the event of
such a determination, the Participant may request independent verification of
the Committee’s calculations with respect to the application of 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.


 


(f)                                    Section 3.8(e) shall not prevent
the acceleration of the vesting schedules described in Sections 3.8(b) and
3.8(c) if such Participant is entitled to a “gross-up” payment to
eliminate the effect of the Code section 4999 excise tax pursuant to his
or her employment agreement or other agreement entered into between such
Participant and the Employer.


 


3.9                                 Crediting/Debiting
of Account Balances.  In accordance with, and subject to, the rules and
procedures that are established from time to time by the Committee, in its sole
discretion, amounts shall be credited or debited to a Participant’s Account
Balance in accordance with the following rules:


 


(a)                                  Measurement
Funds.  Subject to the restrictions found in Section 3.9(c) below,
a Participant may elect one or more of the measurement funds selected by the
Committee,


 


10





















 


in its sole discretion, which are based on
certain mutual funds (the “Measurement Funds”), for the purpose of crediting or
debiting additional amounts to his or her Account Balance.  As necessary, the Committee may, in its sole
discretion, discontinue, substitute or add a Measurement Fund.  Each such action will take effect as of the
first day of the first calendar quarter that begins at least thirty (30) days
after the day on which the Committee gives Participants advance written notice
of such change.


 


(b)                                 Election
of Measurement Funds.  Subject
to the restrictions found in Section 3.9(c) below, a Participant, in connection with
his or her initial deferral election in accordance with Section 3.3(a) above,
shall elect, on the Election Form, one or more Measurement Fund(s) (as
described in Section 3.9(a) above) to be used to determine the amounts
to be credited or debited to his or her Account Balance.  If a Participant does not elect any of the
Measurement Funds as described in the previous sentence, the Participant’s
Account Balance shall automatically be allocated into the lowest-risk Measurement
Fund, as determined by the Committee, in its sole discretion.  Subject
to the restrictions found in Section 3.9(c) below, a
Participant may (but is not required to) elect, by submitting an Election Form to
the Committee that is accepted by the Committee, to add or delete one or more
Measurement Fund(s) to be used to determine the amounts to be credited or
debited to his or her Account Balance, or to change the portion of his or her
Account Balance allocated to each previously or newly elected Measurement
Fund.  If an election is made in
accordance with the previous sentence, it shall apply as of the first business
day deemed reasonably practicable by the Committee, in its sole discretion, and
shall continue thereafter for each subsequent day in which the Participant
participates in the Plan, unless changed in accordance with the previous
sentence.  Notwithstanding the foregoing,
the Committee, in its sole discretion, may impose limitations on the frequency
with which one or more of the Measurement Funds elected in accordance with this
Section 3.9(b) may be added or deleted by such Participant;
furthermore, the Committee, in its sole discretion, may impose limitations on
the frequency with which the Participant may change the portion of his or her
Account Balance allocated to each previously or newly elected Measurement Fund.


 


(c)                                  Fixed
Rate Fund. 
If the Committee, in its sole discretion, adds a fixed rate fund
Measurement Fund to this Plan, the provisions of this Section 3.9(c) shall
apply.  Prior to each Plan Year, the
Committee shall, in its sole discretion, determine whether it will (i) allow
allocations to and/or from the fixed rate fund Measurement Fund and whether
such allocations, if any, may only be made upon advance written notification of
a Participant’s intended allocation, and (ii) impose limits on the portion
of a Participant’s Account Balance that may be invested in the fixed rate fund
Measurement Fund at any given time.  In
the event that the Committee imposes a limit on the portion of a Participant’s
Account Balance that may be invested in the fixed rate fund Measurement Fund,
the Committee may request that a Participant re-allocate his or her Account
Balance among the other Measurement Funds; provided, however, if a Participant
fails or refuses to re-allocate his or her Account Balance in accordance with
the Committee’s request, the Committee may re-allocate that portion of the
Participant’s Account Balance which is in excess of the limits imposed on the fixed
rate fund Measurement Fund, on a pro-rata basis, among the other Measurement
Funds to which the Participant’s Account Balance is allocated.


 


11





















 


(d)                                 Proportionate
Allocation. 
In making any election described in Section 3.9(b) above, the
Participant shall specify on the Election Form, in increments of one percent
(1%), the percentage of his or her Account Balance or Measurement Fund, as
applicable, to be allocated/reallocated.


 


(e)                                  Crediting or Debiting Method.  The performance of each Measurement
Fund (either positive or negative) will be determined on a daily basis based on
the manner in which such Participant’s Account Balance has been hypothetically
allocated among the Measurement Funds by the Participant.


 


(f)                                    No Actual Investment.  Notwithstanding any other
provision of this Plan that may be interpreted to the contrary, the Measurement
Funds are to be used for measurement purposes only, and a Participant’s
election of any such Measurement Fund, the allocation of his or her Account Balance
thereto, the calculation of additional amounts and the crediting or debiting of
such amounts to a Participant’s Account Balance shall  not be
considered or construed in any manner as an actual investment of his or her
Account Balance in any such Measurement Fund. 
In the event that the Company or the Trustee (as that term is defined in
the Trust), in its own discretion, decides to invest funds in any or all of the
investments on which the Measurement Funds are based, no Participant shall have
any rights in or to such investments themselves.  Without limiting the foregoing, a Participant’s
Account Balance shall at all times be a bookkeeping entry only and shall not
represent any investment made on his or her behalf by the Company or the Trust;
the Participant shall at all times remain an unsecured creditor of the Company.


 


3.10                           FICA and Other Taxes.


 


(a)                                  Annual
Deferral Amounts.  For each Plan Year in which an Annual
Deferral Amount is being withheld from a Participant, the Participant’s
Employer(s) shall withhold from that portion of the Participant’s Base Salary,
Bonus and/or LTIP Amounts that is not being deferred, in a manner determined by
the Employer(s), the Participant’s share of FICA and other employment taxes on
such Annual Deferral Amount.  If necessary,
the Committee may reduce the Annual Deferral Amount in order to comply with
this Section 3.10.


 


(b)                                 Company
Restoration Matching Amounts and Company Contribution Amounts.  When a Participant becomes
vested in a portion of his or her Account Balance attributable to any Company
Restoration Matching Amounts and/or Company Contribution Amounts, the
Participant’s Employer(s) shall withhold from that portion of the Participant’s
Base Salary, Bonus and/or LTIP Amounts that is not deferred, in a manner determined
by the Employer(s), the Participant’s share of FICA and other employment taxes
on such amounts.  If necessary, the
Committee may reduce the vested portion of the Participant’s Company
Restoration Matching Amount or Company Contribution Amount, as applicable, in
order to comply with this Section 3.10.


 


(c)                                  Distributions.  The Participant’s
Employer(s), or the trustee of the Trust, shall withhold from any payments made
to a Participant under this Plan all federal, state and local income,
employment and other taxes required to be withheld by the Employer(s), or the
trustee of the Trust, in connection with such payments, in amounts and in a
manner to be determined in the sole discretion of the Employer(s) and the
trustee of the Trust.


 


12





















 


ARTICLE 4

 Scheduled Distribution; Unforeseeable
Financial Emergencies 


 


4.1                                 Scheduled Distribution.  In connection with each
election to defer an Annual Deferral Amount, a Participant may irrevocably
elect to receive a Scheduled Distribution, in the form of a lump sum payment,
from the Plan with respect to all or a portion of the Annual Deferral
Amount.  The Scheduled Distribution shall
be a lump sum payment in an amount that is equal to the portion of the Annual
Deferral Amount the Participant elected to have distributed as a Scheduled
Distribution, plus amounts credited or debited in the manner provided in Section 3.9
above on that amount, calculated as of the close of business on or around the
date on which the Scheduled Distribution becomes payable, as determined by the
Committee in its sole discretion. 
Subject to the other terms and conditions of this Plan, each Scheduled
Distribution elected shall be paid out within the sixty (60) day period
commencing immediately after the first day of any Plan Year designated by the
Participant (the “Scheduled Distribution Date”).  The Plan Year designated by the Participant
must be at least three (3) Plan Years after the end of the Plan Year to
which the Participant’s deferral election described in Section 3.3
relates.  By way of example, if a
Scheduled Distribution is elected for Annual Deferral Amounts that are earned
in the Plan Year commencing January 1, 2006, the earliest Scheduled
Distribution Date that may be designated by a Participant would be January 1,
2010, and the Scheduled Distribution would become payable during the sixty (60)
day period commencing immediately after such Scheduled Distribution Date.


 


4.2                                 Postponing Scheduled Distributions. A Participant may elect
to postpone a Scheduled Distribution described in Section 4.1 above, and
have such amount paid out within the sixty (60) day period commencing
immediately after an allowable alternative distribution date designated by the
Participant in accordance with this Section 4.2.  In order to make this election, the
Participant must submit a new Scheduled Distribution Election Form to the
Committee in accordance with the following criteria:


 


(a)                                  Such
Scheduled Distribution Election Form must be submitted to and accepted by
the Committee in its sole discretion at least twelve (12) months prior to the
Participant’s previously designated Scheduled Distribution Date;


 


(b)                                 The
new Scheduled Distribution Date selected by the Participant must be the first
day of a Plan Year, and must be at least five years after the previously designated Scheduled
Distribution Date; and


 


(c)                                  The election of the new Scheduled
Distribution Date shall have no effect until at least twelve (12) months after
the date on which the election is made.


 


4.3                                 Other
Benefits Take Precedence Over Scheduled Distributions.  Should a Benefit
Distribution Date occur that triggers a benefit under Articles 5, 6, 7, 8, or
9, any Annual Deferral Amount that is subject to a Scheduled Distribution
election under Section 4.1 shall not be paid in accordance with Section 4.1,
but shall be paid in accordance with the other applicable Article.
Notwithstanding the foregoing, the Committee shall interpret this Section 4.3
in a manner that is consistent with Code Section 409A and other applicable
tax law, including but not limited to Treasury guidance and Regulations issued
after the effective date of this Plan.


 


13





















 


4.4                                 Unforeseeable
Financial Emergencies.


 


(a)                                  If a Participant experiences an Unforeseeable
Financial Emergency, the Participant may petition the Committee to receive a
partial or full payout from the Plan, subject to the provisions set forth below.  The payout, if any, from
the Plan shall not exceed the lesser of (i) the Participant’s vested
Account Balance, calculated as of the close of business on or around the date
on which the amount becomes payable, as determined by the Committee in its sole
discretion, or (ii) the amount necessary to satisfy the Unforeseeable
Financial Emergency, plus amounts
necessary to pay Federal, state, or local income taxes or penalties reasonably
anticipated as a result of the distribution.  Notwithstanding the foregoing, a Participant
may not receive a payout from the Plan to the extent that the Unforeseeable
Financial Emergency is or may be relieved (A) through reimbursement or
compensation by insurance or otherwise, (B) by liquidation of the
Participant’s assets, to the extent the liquidation of such assets would not
itself cause severe financial hardship or (C) by cessation of deferrals
under this Plan.


 


(b)                                 If
the Committee, in its sole discretion, approves a Participant’s petition for
payout from the Plan, the Participant shall receive a payout from the Plan
within sixty (60) days of the date of such approval, and the Participant’s
deferrals under the Plan for the remainder of the Plan Year shall be
terminated.


 


(c)                                  Notwithstanding
the foregoing, the Committee shall interpret all provisions relating to payout and/or
termination of deferrals under this Section 4.4 in a manner that is
consistent with Code Section 409A and related Treasury guidance or Regulations.


 


ARTICLE 5


Change in Control Benefit 


 


5.1                                 Change in Control
Benefit.  A Participant, in
connection with his or her commencement of participation in the Plan, shall
irrevocably elect on an Election Form whether to (i) receive a Change
in Control Benefit upon the occurrence
of a Change in Control, which shall be equal to the Participant’s vested
Account Balance, calculated as of the close of business on or around the
Participant’s Benefit Distribution Date, as determined by the Committee in its
sole discretion, or (ii) to have his or her Account Balance remain in the
Plan upon the occurrence of a Change in Control and to have his or her Account
Balance remain subject to the terms and conditions of the Plan.  If a Participant does not make any election
with respect to the payment of the Change in Control Benefit, then such
Participant’s Account Balance shall remain in the Plan upon a Change in Control
and shall be subject to the terms and conditions of the Plan.


 


5.2                                 Payment of Change
in Control Benefit.  The Change in Control Benefit,
if any, shall be paid to the Participant in a lump sum no later than sixty
(60) days after the Participant’s Benefit Distribution Date.  Notwithstanding the foregoing, the Committee
shall interpret all provisions in this Plan relating to a Change in Control
Benefit in a manner that is consistent with Code Section 409A and other applicable
tax law, including but not limited to guidance issued after the effective date
of this Plan.


 


14





















 


ARTICLE 6

Retirement Benefit


 


6.1                                 Retirement Benefit.    A Participant who Retires
shall receive, as a Retirement Benefit, his or her vested Account Balance,
calculated as of the close of business on or around the Participant’s Benefit
Distribution Date, as determined by the Committee in its sole discretion.


 


6.2                                 Payment
of Retirement Benefit.


 


(a)                                  In connection with a Participant’s election
to defer an Annual Deferral Amount, the Participant shall elect the form in which
his or her Annual Account for such Plan Year will be
paid.  The Participant may elect to
receive each Annual Account in the form of a lump sum or pursuant to an Annual
Installment Method of up to fifteen (15) years. 
If a Participant does not make any election with respect to the payment
of an Annual Account, then the Participant shall be deemed to have elected to
receive such Annual Account as a lump sum.


 


(b)                                 A Participant may change the form
of payment for an Annual Account from a lump sum to an Annual Installment
Method (but not vice versa) or by modifying an existing elected Annual
Installment Method by extending (but not decreasing) the number of installments
subject to the Annual Installment Method by submitting an Election Form to
the Committee in accordance with the following criteria:


 


(i)                                     The
election to modify the form of payment for such Annual Account shall have no
effect until at least twelve (12) months after the date on which the election
is made; and


 


(ii)                                  The first
payment related to such Annual Account shall be delayed at least five (5) years from the originally scheduled Benefit
Distribution Date for such Annual Account described in Section 1.8(a).


 


Notwithstanding
the foregoing, the Committee shall interpret all provisions relating to an
election described in this Section 6.2 in a manner that is consistent with
Code Section 409A and other applicable tax law, including but not limited
to Treasury guidance or Regulations issued after the
effective date of this Plan.


 


The Election Form most
recently accepted by the Plan committee in accordance with the criteria set forth above shall govern
the payout of the applicable Annual Account.


 


(c)                                  The
lump sum payment shall be made, or installment payments shall commence, no
later than sixty (60) days after the Benefit Distribution Date.  Remaining installments, if any, shall be paid
no later than sixty (60) days after the first day of each Plan Year following
the Plan Year in which the Participant’s Benefit Distribution Date occurs.


 


15





















 


ARTICLE 7

Termination Benefit


 


7.1                                 Termination Benefit.  A
Participant who experiences a Termination of Employment shall receive, as a Termination
Benefit, his or her vested Account Balance, calculated as of the close of
business on or around the Participant’s Benefit Distribution Date, as
determined by the Committee in its sole discretion.


 


7.2                                 Payment
of Termination Benefit.  The Termination Benefit shall be
paid to the Participant in a lump sum payment no later than sixty (60) days
after the Participant’s Benefit Distribution Date.


 


ARTICLE 8

Disability Benefit


 


8.1                                 Disability Benefit. Upon a
Participant’s Disability, the Participant shall receive a Disability Benefit,
which shall be equal to the Participant’s vested Account Balance, calculated as
of the close of business on or around the Participant’s Benefit Distribution
Date, as selected by the Committee in its sole discretion.


 


8.2                                 Payment
of Disability Benefit.  The Disability
Benefit shall be paid to the Participant in a lump sum payment no later than
sixty (60) days after the Participant’s Benefit Distribution Date.


 


ARTICLE 9

Death Benefit


 


9.1                                 Death Benefit.  The Participant’s Beneficiary(ies) shall
receive a Death Benefit upon the Participant’s death which will be equal to the
Participant’s vested Account Balance, calculated as of the close of business on
or around the Participant’s Benefit Distribution Date, as selected by the Committee
in its sole discretion.


 


9.2                                 Payment of Death Benefit.  The Death Benefit shall be
paid to the Participant’s Beneficiary(ies) in a lump sum payment no later than
sixty (60) days after the Participant’s Benefit Distribution Date.


 


ARTICLE 10

Beneficiary Designation


 


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


 


16





















 


10.2                           Beneficiary
Designation; Change; Spousal Consent.  A Participant shall designate his or her
Beneficiary 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 or her 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 canceled.  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 or her 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 or her 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 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.


 


10.6                           Discharge
of Obligations. 
The payment of benefits under the Plan to a Beneficiary 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

Leave of Absence


 


11.1                           Paid Leave of Absence.  If a Participant is
authorized by the Participant’s Employer to take a paid leave of absence from
the employment of the Employer, (i) the Participant shall continue to be
considered eligible for the benefits provided in Articles 4, 5, 6, 7, 8, or 9
in accordance with the provisions of those Articles, and (ii) the Annual
Deferral Amount shall continue to
be withheld during such paid leave of absence in accordance with Section 3.3.


 


11.2                           Unpaid Leave of Absence.  If a Participant is
authorized by the Participant’s Employer to take an unpaid leave of absence
from the employment of the Employer for any reason, such Participant shall
continue to be eligible for the benefits provided in Articles 4, 5, 6, 7, 8, or
9 in accordance with the provisions of those Articles. However, the Participant
shall be excused from fulfilling his or her Annual Deferral Amount commitment
that would otherwise have been withheld during the remainder of the Plan Year
in which the unpaid leave of absence is taken.


 


17





















 


During the
unpaid leave of absence, the Participant shall not be allowed to make any
additional deferral elections.  However,
if the Participant returns to employment, the Participant may elect to defer an
Annual Deferral Amount for the Plan Year following his or her return to employment
and for every Plan Year thereafter while a Participant in the Plan, provided
such deferral elections are otherwise allowed and an Election Form is
delivered to and accepted by the Committee for each such election in accordance
with Section 3.3 above.


 


ARTICLE 12

Termination of Plan, Amendment or Modification


 


12.1                           Termination of Plan.  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
Plan.  In the event of a Termination of the Plan, the Measurement Funds
available to Participants following the Termination of the Plan shall be
comparable in number and type to those Measurement Funds available to
Participants in the Plan Year preceding the Plan Year in which the Termination
of the Plan is effective.  Following a Termination of the
Plan, Participant Account Balances shall remain in the Plan until the
Participant becomes eligible for the benefits provided in Articles 4, 5, 6, 7,
8 or 9 in accordance with the provisions of those Articles.  The
Termination of the Plan 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 termination.  Notwithstanding
the foregoing, to the extent permissible under Code Section 409A and
other applicable tax law,
including but not limited to Notice 2005-1 and such other Treasury guidance or
Regulations issued after the effective date of this Plan, following a Change in Control the Employer shall be permitted to (i) terminate
the Plan by action of its board of directors, and (ii) distribute the vested Account Balances to
Participants in a lump sum no later
than six (6) months after the Change in Control.


 


12.2                           Amendment.


 


(a)                                  Any
Employer may, at any time, amend or modify the Plan in whole or in part with
respect to that Employer. 
Notwithstanding the foregoing, (i) no amendment or modification
shall be effective to decrease the value of a Participant’s vested Account
Balance in existence at the time the amendment or modification is made, and (ii) no
amendment or modification of this Section 12.2 or Section 13.2 of the
Plan shall be effective.


 


(b)                                 If a
Participant’s Plan Agreement contains benefits or limitations that are not in
this Plan document, the Employer 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
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 or
Regulations, each Employer may (i) adopt such amendments to the Plan, Plan
Agreement and appropriate policies and procedures, including amendments and
policies with retroactive effect, that the Employer


 


18





















 


determines necessary or appropriate to
preserve the intended tax treatment of the Plan benefits provided by the Plan
and/or (ii) take such other actions as the Employer determines necessary
or appropriate to comply with the requirements of Code Section 409A and
related Treasury guidance or Regulations.


 


12.3                           Effect of Payment.  The full payment of the
Participant’s vested Account Balance under Articles 4, 5, 6, 7, 8, or 9 of
the Plan shall completely discharge all obligations to a Participant and his or
her designated Beneficiaries under this Plan, and the Participant’s Plan
Agreement shall terminate.


 


ARTICLE 13

Administration


 


13.1                           Committee Duties.  Except as otherwise
provided in this Article 13, this Plan shall be administered by a
Committee, which shall consist of the Board, or such committee of management and/or
Board members as the Board shall appoint. 
Members of the Committee may be Participants under this Plan.  The Committee shall also have the discretion
and authority to (i) make, amend, interpret, and enforce all appropriate rules and
regulations for the administration of this Plan, and (ii) decide or
resolve any and all questions including interpretations of this Plan, as may
arise in connection with the Plan.  Any
individual serving on the Committee who is a Participant shall not vote or act
on any matter relating solely to himself or herself.  When making a determination or calculation,
the Committee shall be entitled to rely on information furnished by a Participant
or the Company.  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.


 


13.2                           Administration
Upon Change In Control. For purposes of this
Plan, the Committee shall be the “Administrator” at all times prior to the
occurrence of a Change in Control. 
Within one hundred and twenty (120) days following a Change in Control,
an independent third party “Administrator” may be selected by the individual or
individuals who, immediately prior to the Change in Control, held a position as
Chief Executive Officer of the Company or, if not so identified, held a
position as the Company’s highest ranking officer(s) (the “Ex-CEO”), and
approved by the Trustee.  The Committee,
as constituted prior to the Change in Control, shall continue to be the
Administrator until the earlier of (i) the date on which such independent
third party is selected and approved, or (ii) the expiration of the one
hundred and twenty (120) day period following the Change in Control.  If an independent third party is not selected
within one hundred and twenty (120) days of such Change in Control, the
Committee, as described in Section 13.1 above, shall be the
Administrator.  The Administrator shall
have the discretionary power to determine all questions arising in connection
with the administration of the Plan and the interpretation of the Plan and
Trust including, but not limited to benefit entitlement determinations; provided,
however, upon and after the occurrence of a Change in Control, the
Administrator shall have no power to direct the investment of Plan or Trust
assets or select any investment manager or custodial firm for the Plan or
Trust.  Upon and after the occurrence of
a Change in Control, the Company must: (1) pay all reasonable
administrative expenses and fees of the Administrator; (2) indemnify the
Administrator against any costs, expenses and liabilities


 


19





















 


including,
without limitation, attorney’s fees and expenses arising in connection with the
performance of the Administrator hereunder, except with respect to matters
resulting from the gross negligence or willful misconduct of the Administrator
or its employees or agents; and (3) supply full and timely information to
the Administrator on all matters relating to the Plan, the Trust, the
Participants and their Beneficiaries, the Account Balances of the Participants,
the date and circumstances of the Retirement, Disability, death or Termination
of Employment of the Participants, and such other pertinent information as the
Administrator may reasonably require. 
Upon and after a Change in Control, the Administrator may be terminated
(and a replacement appointed) by the Trustee only with the approval of the
Ex-CEO.  Upon and after a Change in
Control, the Administrator may not be terminated by the Company.


 


13.3                           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 be counsel to any Employer.


 


13.4                           Binding
Effect of Decisions.  The decision or action of the Administrator
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.


 


13.5                           Indemnity of Committee.  All Employers shall
indemnify and hold harmless the members of the Committee, any Employee to whom
duties of the Committee may be delegated in accordance with Section 13.1,
and the Administrator against 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, any such Employee, or the Administrator seeking indemnification
hereunder.


 


13.6                           Employer Information.  To enable the Committee
and/or Administrator to perform its functions, the Company and each Employer
shall supply full and timely information to the Committee and/or Administrator,
as the case may be, on all matters relating to the Plan, the Trust, the
Participants and their Beneficiaries, the Account Balances of the Participants,
the compensation of its Participants, the date and circumstances of the
Retirement, Disability, death or Termination of Employment of its Participants,
and such other pertinent information as the Committee or Administrator may
reasonably require.


 


ARTICLE 14

Other Benefits and Agreements


 


14.1                           Coordination
with Other Benefits.  The benefits provided for a Participant and
Participant’s Beneficiary under the Plan are in addition to any other benefits
available to such 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.


 


20





















 


ARTICLE 15

Claims Procedures


 


15.1                           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.


 


15.2                           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, and 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 15.3 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.


 


15.3                           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 (as defined in applicable
ERISA regulations) to the claim for benefits;


 


21





















 


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


 


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


 


15.4                           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:


 


(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).


 


15.5                           Legal Action.  A Claimant’s compliance with the foregoing
provisions of this Article 15 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 16

Trust


 


16.1                           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 shall establish a trust by a trust agreement with a
third party, the trustee (the “Trust”), and each Employer shall at least
annually transfer over to the Trust such assets as the Employer determines, in
its sole discretion, are necessary to provide, on a present value basis, for
its respective future liabilities created with respect to the Annual Accounts for
such Employer’s Participants (or such Participants’ Beneficiaries) for all
periods prior to the transfer, as well as any debits and credits to such Participants’
Annual Accounts for all periods prior to the transfer, taking into
consideration the value of the assets in the Trust at the time of the transfer.


 


16.2                           Interrelationship
of the Plan and the Trust.  The provisions of the Plan and the Plan
Agreement shall govern the rights of a Participant to receive distributions
pursuant to the Plan.  The provisions of
the Trust shall govern the rights of the Employers, 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.


 


22





















 


16.3                           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, and any such
distribution shall reduce the Employer’s obligations under this Plan.


 


ARTICLE 17

Miscellaneous


 


17.1                           Status of Plan.  The Plan is intended to be
a plan that is not qualified within the meaning of Code Section 401(a) and
that “is unfunded and is 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.


 


17.2                           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.


 


17.3                           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 a
Participant under the Plan except as expressly provided in the Plan and his or
her Plan Agreement.


 


17.4                           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.


 


17.5                           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, either as an Employee or a Director, or to interfere with the right
of any Employer to discipline or discharge the Participant at any time.


 


17.6                           Furnishing Information.  A Participant or his or her
Beneficiary will cooperate with the Committee by furnishing any and all
information requested by the Committee and take such


 


23





















 


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.


 


17.7                           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 whenever 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 the case may be, in all cases where they would
so apply.


 


17.8                           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.


 


17.9                           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 conflicts of laws principles.


 


17.10                     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: 


 


	
  Guess?, Inc.

  
	
  Attn:
  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.


 


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


 


17.12                     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.


 


17.13                     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 or invalid provision had never been inserted
herein.


 


17.14                     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, incompetence, incapacity or


 


24





















 


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 the
case may be, and shall be a complete discharge of any liability under the Plan
for such payment amount.


 


17.15                     Court Order.  The Committee is authorized to comply with
any court order in any action in which the Plan or the 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 Code Section 409A
and other applicable tax law, including but not limited to guidance issued
after the effective date of this Plan.


 


17.16                     Insurance.  The Employers, on their own behalf or on
behalf of the trustee of the Trust, and, in their sole discretion, may apply for
and procure insurance on the life of the Participant, in such amounts and in
such forms as the Employers or the trustee of the Trust may choose.  The Employers or the trustee of the Trust, as
the case may be, 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.


 


17.17                     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.


 


25





















 


IN WITNESS
WHEREOF, the Company has signed this Plan document as of October 31, 2005.


 


	
   

  	
  “Company”

  
	
   

  	
  Guess?, Inc., a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Carlos
  Alberini

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Carlos
  Alberini

  
	
   

  	
  Title:

  	
  President
  and Chief Operating Officer

  
				



 


26