Exhibit 10.1


 


GUESS ?, INC.


 


2006 NON-EMPLOYEE DIRECTORS’ 

STOCK GRANT AND STOCK OPTION PLAN

(As Amended and Restated Effective September 28, 2007)


 


1.                             Establishment;
Purpose of the Plan.


 


The Company maintains the Guess?, Inc. 2006
Non-Employee Directors’ Stock Grant and Stock Option Plan, which was approved
by the Company’s stockholders on May 9, 2006 and was subsequently amended on
July 11, 2006.(1)  The Company hereby
amends and restates the Plan effective as of September 28, 2007 (the “Restatement Date”). Effective as of the Restatement Date, no
additional Options will be granted under the Plan unless otherwise provided by
the Board. The purpose of this Plan is to enable the Company to attract and
retain as non-employee directors individuals with superior training, experience
and ability and to provide additional incentive to such Eligible Directors by
giving them an opportunity to participate in the ownership of the Company.


 


2.                             Definitions.


 


For purposes of the Plan, the following terms
shall be defined as set forth below:


 


“Affiliate” and “Associate”
have the respective meanings ascribed to such terms in Rule 12b-2
promulgated under the Exchange Act.


 


 “Award”
means any award of an Option or Restricted Stock, or any combination thereof,
authorized by and granted under this Plan.


 


“Award Agreement” means a
written document issued by the Company to a Participant setting forth the terms
and conditions of an Award that has been granted under the Plan.


 


“Beneficial
Owner” has the meaning ascribed to such term in Rule 13d-3 promulgated
under the Exchange Act.


 


“Board”
means the Board of Directors of the Company.


 


“Code”
means the Internal Revenue Code of 1986, as amended from time to time, and any
successor thereto.


 


“Combined
Voting Power” means the combined voting power of the Company’s then
outstanding voting securities.


 






(1) The Company maintained the
Guess?, Inc. 1996 Non-Employee Directors’ Stock Grant and Stock Option
Plan (As Amended and Restated Effective June 20, 2005), which was
originally adopted as the Guess?, Inc. 1996 Non-Employee Directors’ Stock
Option Plan on July 30, 1996. Effective May 9, 2006, the Company amended
and restated such plan in its entirety as the Guess?, Inc. 2006
Non-Employee Directors’ Stock Grant and Stock Option Plan.


 

















 


“Common
Stock” means the Common Stock of the Company, par value $.01 per
share.


 


“Company”
means Guess ?, Inc., a Delaware corporation, including any wholly owned
Subsidiary or affiliate, or any successor organization.


 


“Disability”
means permanent and total disability within the meaning of
Section 22(e)(3) of the Code.


 


“Eligible
Director” means a person who is a member of the Board and who is not
an employee of the Company.


 


“Eligibility
Date” means the first business day of each of the Company’s fiscal
years, commencing with the first fiscal year that commences in 2007, while this
Plan is in effect.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended.


 


“Fair
Market Value” means, on any given date, the closing price of the
shares of Common Stock, as reported on the New York Stock Exchange for such
date or, if Common Stock was not traded on such date, on the next preceding day
on which Common Stock was traded; provided that if the Common Stock is not then
traded on the New York Stock Exchange, Fair Market Value means the fair market
value thereof as of the relevant date of determination as determined in
accordance with a valuation methodology approved by the Board.


 


“Option”
means any option to purchase shares of the Common Stock of the Company granted
pursuant to this Plan.


 


“Parent”
means any corporation which is a “parent corporation” within the meaning of
Section 424(e) of the Code with respect to the Surviving Entity.


 


“Participant”
means an Eligible Director who has been granted an Award under this Plan.


 


“Person”
means any person or “group” within the meaning of Section 13(d)(3) or
Section 14(d)(2) of the Exchange Act.


 


“Plan”
means the Guess ?, Inc. 2006 Non-Employee Directors’ Stock Grant and Stock
Option Plan (formerly the Guess?, Inc. 1996 Non-Employee Director’ Stock
Grant and Stock Option Plan), as hereinafter amended from time to time.


 


“Restatement Date”
has the meaning given to such term in Section 1.


 


 “Rules” means the regulations promulgated
by the Securities and Exchange Commission under Section 16 of the Exchange
Act, as amended from time to time.


 


“Shareholder Approval Date”
means May 9, 2006.


 


“Subsidiary”
means (i) any corporation which is a “subsidiary corporation” within the
meaning of Section 424(f) of the Code with respect to the Company or
(ii) any other corporation


 


2

















 


or other entity in which the Company,
directly or indirectly, has an equity or similar interest and which the Board
designates as a subsidiary for purposes of the Plan.


 


“Surviving
Entity” has the meaning ascribed to it in
Section 10(b) hereof.


 


Except where otherwise indicated by the
context, any masculine terminology used herein shall also include the feminine
and vice versa, and the definition of any term herein in the singular shall
also include the plural and vice versa.


 


3.                             Shares
Subject to the Plan.


 


Except as provided in Section 9, the
aggregate number of shares of Common Stock that may be issued under the Plan is
2,000,000(2). Such shares may include authorized but unissued shares of Common
Stock, treasury shares or a combination of both. In the event the number of
shares of Common Stock issued under the Plan and the number of shares of Common
Stock subject to outstanding Awards equals the maximum number of shares of
Common Stock authorized under the Plan, no further awards shall be made unless
the Plan is amended (in accordance with the Rules, if necessary) or additional
shares of Common Stock become available for further awards under the Plan. Shares
of Common Stock that are subject to Options granted under the Plan that
terminate, expire or are canceled without having been exercised, and any
restricted shares of Common Stock subject to a Restricted Stock Award that are
forfeited, cancelled, or for any other reason do not vest shall again be
available for subsequent Awards under the Plan.


 


4.                             Administration
of the Plan.


 


(a)           Administration. The Plan shall be
administered by the Board. Subject to the provisions of the Plan, and
notwithstanding the intent that the Award grants under the Plan be
self-effectuating to the maximum extent possible, the Board shall be authorized
to:


 


(i)            adopt, revise and
repeal such administrative rules, guidelines and practices governing this Plan
as it shall from time to time deem advisable;


 


(ii)           interpret the terms and
provisions of the Plan and any Award issued under the Plan (and any agreements
relating thereto), and otherwise settle all claims and disputes arising under
the Plan;


 


(iii)          delegate responsibility
and authority for the operation and administration of the Plan, appoint
employees and officers of the Company to act on its behalf, and employ persons
to assist in the fulfilling of its responsibilities under the Plan; and


 






(2) The aggregate share limit of 2,000,000
shares of Common Stock consists of (a) the 500,000 shares of Common Stock that
were initially approved for issuance under the Plan upon its original adoption
by the Board on July 30, 1996 plus (b) an additional 500,000 shares of
Common Stock that were approved for issuance under the Plan by the Board on
April 7, 2006, subject to approval by the Company’s shareholders at the
2006 Annual Meeting of Shareholders plus (c) an additional 1,000,000 shares as
were necessary to reflect the Company’s two-for-one stock split effected in the
form of a 100% stock dividend as approved by the Board on February 12, 2007 and
distributed March 12, 2007.


 


3

















 


(iv)          otherwise supervise the
administration of the Plan; provided, however, that the Board shall have no
discretion with respect to the selection of Eligible Directors to receive
Awards hereunder, the number of shares of Common Stock covered by such Award or
the price or timing of any Awards granted hereunder; provided further that any
action by the Board relating to the Plan will be taken only if approved by the
affirmative vote of a majority of the directors who are not then eligible to
participate under the Plan.


 


(b)           Delegation to a Committee. The Board may
delegate to a committee of the Board any or all of its authority for
administration of the Plan and, if such delegation occurs, all references to
the Board in this Plan shall be deemed references to the committee to the
extent provided in the resolution establishing the committee.


 


5.                             Restricted
Stock Grants


 


(a)           Annual Award Grants. On each Eligibility
Date after the Restatement Date, each Eligible Director who has not been an
employee of the Company at any time during the immediately preceding 12 months
shall be granted a Restricted Stock Award for a number of restricted shares of
Common Stock equal to $180,000 divided by the Fair Market Value of a share of
Common Stock on the date of grant.


 


(b)           Restricted Stock Awards. Stock
certificates or book entries evidencing shares of restricted stock subject to a
Restricted Stock Award pending the lapse of the restrictions shall bear a
legend or notation making appropriate reference to the restrictions imposed
hereunder and, if so provided by the Board, (if in certificate form) shall be
held by the Company or by a third party designated by the Board until the
restrictions on such shares shall have lapsed and the shares shall have vested
in accordance with the provisions of the Award and the provisions hereof.
Restricted Stock Awards will be evidenced by an Award Agreement containing such
terms and conditions which are not inconsistent with the terms of the Plan.


 


(c)           Vesting. Each Restricted Stock Award
granted under this Section 8 shall become vested as to 100% of the total
number of shares of Common Stock subject thereto upon the first to occur of
(i) the first anniversary of the date of grant or (ii) a termination
of service on the Board if such Eligible Director has completed a full term of
service and he or she does not stand for re-election at the completion of such
term. Promptly after the vesting date and satisfaction of all applicable
restrictions, a certificate or certificates evidencing the number of the shares
of Common Stock as to which the restrictions have lapsed shall be delivered to
the Participant holding the Award (to the extent that the
certificate(s) had not previously been delivered). Certificates evidencing
vested shares and any other amounts deliverable in respect thereof shall be
delivered and paid only to the Participant or his or her personal
representative, as the case may be.


 


(d)           Transfer Restrictions. Prior to the time
that they have become vested, neither the restricted shares comprising any
Restricted Stock Award, nor any interest therein, amount payable in respect
thereof, or Restricted Property (as defined in 8(e)), may be sold, assigned,
transferred, pledged or otherwise disposed of, alienated or encumbered, either
voluntarily or involuntarily. The transfer restrictions in the preceding sentence
shall not apply to (i) transfers to the Company, (ii) the designation
of a beneficiary to receive benefits in the event of the Eligible


 


4

















 


Director’s
death, or if the Eligible Director has died, transfers to the Eligible Director’s
beneficiary, or, in the absence of a validly designated beneficiary, transfers
by will or the laws of descent and distribution.


 


(e)           Voting; Dividends. After the applicable
date of grant of a Restricted Stock Award, the Participant holding the
Restricted Stock Award shall have voting rights and dividend rights with
respect to the shares of Common Stock subject to the award. Any securities or
other property receivable in respect of the shares subject to the award as a
result of any dividend or other distribution (other than cash dividends),
conversion or exchange of or with respect to the shares (“Restricted
Property”) will be subject to the restrictions set forth in this
Plan to the same extent as the shares to which such securities or other
property relate and shall be held and accumulated for the benefit of the
Participant, but subject to such risks. The Participant’s voting and dividend
rights shall terminate immediately as to any shares that are forfeited back to
the Company in accordance with Section 8(f).


 


(f)            Effect of a Termination of Service. If a
Participant ceases to be a member of the Board for any reason any shares
subject to the Participant’s Restricted Stock Award that are not fully vested
and free from restriction as of the Participant’s termination of service shall
thereupon be forfeited and returned to the Company.


 


6.                             Amendment
and Termination.


 


The Board may amend, alter, suspend or
terminate the Plan in whole or in part at any time and from time to time;
provided, however, that any amendment, alteration, suspension or termination
which, under the requirements of applicable federal or state law or regulation
or the rules of any stock exchange or automated quotation system on which
the Common Stock may then be listed or quoted must be approved by the
shareholders of the Company, shall not be effective unless and until such
shareholder approval has been obtained in compliance with such law. The Board
may amend the terms of any Award theretofore granted, prospectively or
retroactively, but no such amendment shall impair the rights of any Participant
without the Participant’s consent. Notwithstanding any provision herein to the
contrary, the Board shall have broad authority to amend the Plan or any Award
to take into account changes in applicable tax laws, securities laws,
accounting rules and other applicable state and federal laws.


 


7.                             Changes
in Capital Structure.


 


(a)           In
the event of any change in the outstanding Common Stock by reason of a stock
dividend, recapitalization, reorganization, merger, consolidation, stock split,
combination or exchange of shares, (i) such proportionate adjustments as
may be necessary (in the form determined by the Board in its sole discretion)
to reflect such change shall be made to prevent dilution or enlargement of the
rights of Participants under the Plan with respect to the aggregate number of
shares of Common Stock for which awards in respect thereof may be granted under
the Plan, the number of shares of Common Stock covered by each outstanding
Option, and the exercise price in respect thereof and (ii) the Board may
make such other adjustments, consistent with the foregoing, as it deems
appropriate in its sole discretion.


 


5

















 


(b)           In
the event of a change in control of the Company, (i) all outstanding
Options granted hereunder shall become fully exercisable as of the date of the
Change in Control, whether or not then exercisable, and shares subject to
Restricted Stock Awards then outstanding under the Plan shall vest 100% free of
restrictions as of the date of the Change in Control, and  (ii) in
the case of a change in control involving a merger of, and consolidation
involving, the Company in which the Company is (A) not the surviving
corporation (the “Surviving Entity”)
or (B) becomes a wholly owned subsidiary of the Surviving Entity or any
Parent thereof, each outstanding Option granted hereunder and not exercised (a “Predecessor Option”) shall be converted
into an option (a “Substitute Option”)
to acquire common stock of the Surviving Entity or its Parent, which Substitute
Option shall have substantially the same terms and conditions as the
Predecessor Option, with appropriate adjustments as to the number and kind of
shares and exercise prices.


 


With respect to Awards granted on and after
the Restatement Date, a “Change in Control”
shall be deemed to have occurred when (A) any Person (other than
(x) the Company, any Subsidiary of the Company, any employee benefit plan
of the Company or of any Subsidiary of the Company, or any person or entity
organized, appointed or established by the Company or any Subsidiary of the
Company for or pursuant to the terms of any such plan or (y) Maurice
Marciano or Paul Marciano, the members of their families, their respective
estates, spouses, heirs and any trust of which any one or more of the foregoing
are the trustors, the trustees and/or the beneficiaries, or any other entity controlled
by one or more of them (collectively such persons, estates, trusts, and entities
referred to in this clause (y), the “Permitted Holders”)),
alone or together with its Affiliates and Associates (collectively, an “Acquiring Person”), shall become the
Beneficial Owner of both (i) thirty-five percent (35%) or more of the then
outstanding shares of Common Stock or the Combined Voting Power of the Company
(except pursuant to an offer for all outstanding shares of Common Stock at a
price and upon such terms and conditions as a majority of the Continuing
Directors determine to be in the best interests of the Company and its
shareholders (other than an Acquiring Person on whose behalf the offer is being
made)) and (ii) more shares of Common Stock or more Combined Voting Power of
the Company than are at such time Beneficially Owned by the Permitted Holders,
(B) during any period of two consecutive years, individuals who at the
beginning of such period constitute the Board, and any new director (other than
a director who is a representative or nominee of an Acquiring Person) whose
election by the Board or nomination for election by the Company’s shareholders
was approved by a vote of at least a majority of the directors then still in
office who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved (collectively,
the “Continuing Directors”),
cease for any reason to constitute a majority of the Board, (C) the
shareholders of the Company approve a merger or consolidation of the Company
with any other corporation, other than a merger or consolidation which would
result in the voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into voting securities of the Surviving Entity or any Parent of such
Surviving Entity) at least 80% of the Combined Voting Power of the Company,
such Surviving Entity or the Parent of such Surviving Entity outstanding
immediately after such merger or consolidation, or (D) the shareholders of
the Company approve a plan of reorganization (other than a reorganization under
the United States Bankruptcy Code) or complete liquidation of the Company or an
agreement for the sale or disposition by the Company of all or substantially
all of the Company’s assets; provided,
however, that a change in control
shall not be deemed to have occurred in the event of


 


6

















 


(x) a sale or conveyance in which the
Company continues as a holding company of an entity or entities that conduct all
or substantially all of the business or businesses formerly conducted by the
Company or (y) any transaction undertaken for the purpose of incorporating
the Company under the laws of another jurisdiction, if such transaction does
not materially affect the beneficial ownership of the Company’s capital stock.


 


With respect to Awards granted prior to the Restatement
Date, a “Change in Control” shall be deemed to
have occurred when (A) any Person (other than (x) the Company, any
Subsidiary of the Company, any employee benefit plan of the Company or of any
Subsidiary of the Company, or any person or entity organized, appointed or
established by the Company or any Subsidiary of the Company for or pursuant to
the terms of any such plan or (y) Maurice Marciano or Paul Marciano, or
any trust established in whole or in part for the benefit of one or both of
them or their family members, or any other entity controlled by one or more of
them), alone or together with its Affiliates and Associates (collectively, an “Acquiring Person”), shall become the
Beneficial Owner of twenty percent (20%) or more of the then outstanding shares
of Common Stock or the Combined Voting Power of the Company (except pursuant to
an offer for all outstanding shares of Common Stock at a price and upon such
terms and conditions as a majority of the Continuing Directors determine to be
in the best interests of the Company and its shareholders (other than an
Acquiring Person on whose behalf the offer is being made)), (B) during any
period of two consecutive years, individuals who at the beginning of such
period constitute the Board, and any new director (other than a director who is
a representative or nominee of an Acquiring Person) whose election by the Board
or nomination for election by the Company’s shareholders was approved by a vote
of at least a majority of the directors then still in office who either were
directors at the beginning of the period or whose election or nomination for
election was previously so approved (collectively, the “Continuing Directors”), cease for any
reason to constitute a majority of the Board, (C) the shareholders of the
Company approve a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the Surviving Entity or any Parent of such Surviving
Entity) at least 80% of the Combined Voting Power of the Company, such
Surviving Entity or the Parent of such Surviving Entity outstanding immediately
after such merger or consolidation, or (D) the shareholders of the Company
approve a plan of reorganization (other than a reorganization under the United
States Bankruptcy Code) or complete liquidation of the Company or an agreement
for the sale or disposition by the Company of all or substantially all of the
Company’s assets; provided, however,
that a change in control shall not be deemed to have occurred in the event of
(x) a sale or conveyance in which the Company continues as a holding
company of an entity or entities that conduct all or substantially all of the
business or businesses formerly conducted by the Company or (y) any transaction
undertaken for the purpose of incorporating the Company under the laws of
another jurisdiction, if such transaction does not materially affect the
beneficial ownership of the Company’s capital stock.


 


8.                             Unfunded
Status of the Plan.


 


The Plan is unfunded. Nothing contained
herein shall give any such Participant any rights that are greater than those
of a general creditor of the Company. In its sole discretion, the Board


 


7

















 


may authorize the creation of trusts or other
arrangements to meet the obligations created under the Plan to deliver Common
Stock or payments in lieu thereof with respect to awards hereunder.


 


9.                             Effective
Date and Term of the Plan.


 


The Plan was originally approved by the
Company’s Board on July 30, 1996, was amended and restated effective on
May 9, 2006, and subsequently amended July 11, 2006. Awards granted under this
Plan prior to the Restatement Date shall be governed by the provisions of the
applicable prior version of this Plan. Awards granted under this Plan on or
after the Restatement Date shall be subject to the terms and conditions set
forth herein and any applicable amendment hereof.


 


The Plan shall continue in effect until the
earlier of (a) ten years from the Shareholder Approval Date or
(b) the termination of the Plan by action of the Board. No Awards shall be
granted pursuant to the Plan on or after such termination date, but Awards
granted prior to such date may extend beyond that date. The Board shall have
the right to suspend or terminate the Plan at any time except with respect to
any Awards then outstanding.


 


10.                          General
Provisions.


 


(a)           Representations by Participants. The Board
may require each Participant to represent to and agree with the Company in
writing that the Participant is acquiring the shares of Common Stock without a
view to distribution or other disposition thereof. The certificates for such
shares may include any legend that the Company deems appropriate to reflect any
restrictions on transfer.


 


(b)           Continuance of Service Required. The
vesting schedule applicable to an Award requires continued service through each
applicable vesting date as a condition to the vesting of the Award and the
rights and benefits under this Plan. Service for only a portion of a vesting
period, even if substantial, will not entitle the award recipient to any
proportionate vesting or avoid or mitigate a termination of rights and benefits
upon or following a termination of services as provided in Section 5(f).
Nothing contained in this Plan constitutes a service commitment by the Company,
confers upon any Award recipient any right to remain in service to the Company,
interferes in any way with the right of the Company at any time to terminate
such service, or affects the right of the Company or any affiliate to increase
or decrease the recipient’s other compensation.


 


(c)           No Restrictions on Adoption of Other Compensation
Arrangements. Nothing contained in this Plan shall prevent the Board
from adopting other or additional compensation arrangements (subject to
shareholder approval, if such approval is required) and such arrangements may
be either generally applicable or applicable only in specific cases.


 


(d)           No Right to Re-Election. The adoption of
the Plan shall not interfere in any way with the right of the Company to
terminate its relationship with any of its directors at any time.


 


(e)           No Stockholder Rights. Except as otherwise
expressly authorized by the Board or this Plan: (a) a Participant shall
not be entitled to any privilege of stock ownership as to any shares of Common
Stock not actually delivered to and held of record by the Participant, and


 


8

















 


(b) no
adjustment will be made for dividends or other rights as a stockholder for
which a record date is prior to such date of delivery.


 


(f)            Tax Withholding. No later than the date as
of which an amount first becomes includable in the gross income of the
Participant for applicable income tax purposes with respect to any award under the
Plan, the Participant shall pay to the Company or make arrangements
satisfactory to the Board regarding the payment of any federal, state or local
taxes of any kind required by law to be withheld with respect to such amount.
Unless otherwise determined by the Board, in accordance with rules and
procedures established by the Board, the minimum required withholding
obligations may be settled with Common Stock, including Common Stock that is
part of the award that gives rise to the withholding requirement. The
obligation of the Company under the Plan shall be conditional upon such payment
or arrangements and the Company shall, to the extent permitted by law, have the
right to deduct any such taxes from any payment of any kind otherwise due to
the Participant.


 


(g)           Applicable Law. The Plan shall be governed
by and subject to the laws of the State of Delaware and to all applicable laws
and to the approvals by any governmental or regulatory agency as may be
required.


 


(h)           Severability. If any provision of this Plan
shall be held illegal or invalid for any reason, such illegality or invalidity
shall not affect the remaining provisions of this Plan, but this Plan shall be
construed and enforced as if such illegal or invalid provision had never been
included herein.


 


(i)            Compliance with Rule 16b-3. The Plan
is intended to comply with Rule 16b-3 under the Exchange Act or its
successors under the Exchange Act and the Board shall interpret and administer
the provisions of the Plan or any Award Agreement in a manner consistent
therewith. To the extent any provision of the Plan or Award Agreement or any
action by the Board fails to so comply, it shall be deemed null and void, to
the extent permitted by law and deemed advisable by the Board. Moreover, in the
event the Plan or an Award Agreement does not include a provision required by
Rule 16(b)(3) to be stated therein, such provision (other than one
relating to eligibility requirements, or the price and amount of Awards) shall
be deemed automatically to be incorporated by reference into the Plan or such
Award Agreement.


 


(j)            Expenses. All expenses and costs in
connection with the administration of the Plan or the issuance of Options
hereunder shall be borne by the Company.


 


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


 


9