Exhibit 10.33 Amended and Restated 1996 Non-Employee Directors' Stock Option
Plan, as amended through March 3, 1997
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GUESS ?, INC.
AMENDED AND RESTATED 1996
NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
(as amended through March 3, 1997)
1. Purpose of the Plan.
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.
"Annual Meeting" means an annual meeting of the Company's stockholders.
"Award Agreement" means a written document issued by the Company to an Optionee
regarding the grant and exercise of Options to purchase shares of Common Stock
and the terms and conditions thereof.
"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.
"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.
"Election Date" means January 15 of the relevant Election Period, provided,
however, that if the Election Date for an Eligible Director's initial Election
Period shall be the day of initial election or appointment to the Board.
"Election Period" means the calendar year, provided, however, that if an
Eligible Director is initially elected or appointed to the Board as of a date
other than January 1, the initial Election Period for such Eligible Director
shall be the remainder of the year of initial election or appointment.
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"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 January 1, 1997, 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.
"Incentive Stock Option" means any Option intended to be designated as an
"incentive stock option" within the meaning of Section 422 of the Code.
"Non-qualified Stock Option" means any Option that is not an Incentive Stock
Option.
"Option" means any option to purchase shares of the Common Stock of the Company
granted pursuant to this Plan.
"Optionee" means an Eligible Director who receives an Option under the 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.
"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. Amended and Restated Non-Employee Directors'
Stock Option Plan, as hereinafter amended from time to time.
"Rules" means the regulations promulgated by the Securities and Exchange
Commission under Section 16 of the Exchange Act, as amended from time to time.
"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 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 9(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.
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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 500,000. 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. If and to the extent that Options
granted under the Plan terminate, expire or are canceled without having been
exercised, such shares 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, 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 Option
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
(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 Options hereunder, the number of shares of
Common Stock covered by such Option or the price or timing of any Options
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.
(c) Loans to Optionees. The Board, in its absolute discretion, may
provide that the Company loan to Optionees sufficient funds to exercise any
Option and/or to pay any withholding due upon exercise of such Option. The
Board shall have the authority to make such determinations at any time and
shall establish repayment terms, including installments, maturity and interest
rates.
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5. Option Grants.
(a) Number of Options Granted. The following Options shall be
automatically granted to each Eligible Director under the Plan, without further
approval or authorization of the Board or any other person:
(i) Each person who first becomes an Eligible Director on or after
the date of the Company's initial public offering of Common Stock shall be
awarded an Option to purchase 10,000 shares of Common Stock as of the date such
person first becomes an Eligible Director.
(ii) On each Eligibility Date, each Eligible Director who has not
been an employee of the Company at any time during the immediately preceding 12
months shall be awarded an Option to purchase 3,000 shares of Common Stock,
provided, however, that an Eligible Director whose initial election or
appointment to the Board occurs after September 30 of a given year (or, if the
fiscal year of the Company shall be other than the calendar year, whose initial
election or appointment to the Board occurs more than nine months after the
start of the Company's fiscal year) shall not receive an award pursuant to this
clause (ii) on the first Eligibility Date to occur after such initial election
or appointment.
In addition to the Options granted under this Section 5, Eligible Directors may
also be awarded Options pursuant to the election provided for in Section 6
below.
(b) Option Price. The Option price per share of Common Stock covered by
an Option granted under this Section 5 shall be 85% of the Fair Market Value of
one share of Common Stock as of the date of grant.
(c) Amendments to this Section 5. Notwithstanding any other provision of
the Plan, until August 15, 1996, this Section 5 may not be amended more then
once, except for amendments necessary to conform the Plan to changes in the
provisions of, or the regulations relating to, the Code.
(d) Exercisability. Subject to the other terms and conditions of the
Plan, Options granted under this Section 5 shall vest and become exercisable
with respect to one-fourth of the shares of Common Stock covered thereby on
each anniversary of the date of grant, provided that the Eligible Director
shall have continued in service on the Board until such date. In no case may
an Option be exercised as to less than 100 shares at any one time (or the
remaining shares covered by the Option if less than 100) during the term of the
Option. Only whole shares shall be issued pursuant to the exercise of any
Option.
6. Elections to Receive Options in Lieu of Annual Retainer Fees.
(a) General; Time and Manner of Making Election. An Eligible Director
may elect to receive, in lieu of his or her annual cash retainer fees for
service on the Board, Options having the terms and conditions set forth in this
Section 6 and in Section 7 below. Such an election shall be made with respect
to any Election Period by completing, signing and returning to the Company, on
or prior to the Election Date, a election form provided for such purpose or
other documentation reasonably acceptable to the general counsel of the
Company. Elections pursuant to this Section 6(a) may be made only with respect
to the entire amount of an Eligible Director's annual cash retainer fees for
service on the Board during an Election Period. Elections shall not be
available either with respect to any portion of such annual retainer fee or
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with respect to any attendance fees or fees for service on, or as chairman of,
a committee. An election, once made, shall be irrevocable.
(b) Number of Shares Subject to Option. The number of shares of Common
Stock subject to an Option awarded pursuant to an election made as provided in
Section 6(a) above shall be calculated using the formula (A x B)/C, where "A"
equals the dollar amount of annual retainer fee deferred, "B" equals 2.50 and
"C" equals the Fair Market Value of one share of Common Stock on the applicable
Election Date. If the foregoing yields a fractional share, the number of
shares subject to the Option shall be rounded up to the nearest whole share.
(c) Date of Grant; Option Price. Options awarded pursuant to this
Section 6 will be granted as of the relevant Election Date. The Option price
per share of Common Stock covered by an Option granted under this Section 6
shall be the Fair Market Value of one share of Common Stock as the date of
grant.
(d) Exercisability. Subject to the other terms and conditions of the
Plan, Options granted under this Section 6 shall vest and become exercisable
with respect to one-fourth of the shares of Common Stock covered thereby on the
first day of each of the four fiscal quarters following the date of grant,
provided that the Eligible Director shall have continued in service on the
Board until such date. In no case may an Option be exercised as to less than
100 shares at any one time (or the remaining shares covered by the Option if
less than 100) during the term of the Option. Only whole shares shall be
issued pursuant to the exercise of any Option.
7. General Terms and Conditions of Options.
All Options granted under the Plan shall have the following terms and
conditions:
(a) Award Agreement. Each Option shall be evidenced by an Award
Agreement containing such terms and conditions which are not inconsistent with
the terms of the Plan. Award Agreements relating to Options may, in the
discretion of the Board, provide restrictions on transfer of shares of Common
Stock acquired upon exercise of any Option during a specified period.
(b) Non-qualified Stock Options. All Options granted hereunder shall be
Non-qualified Stock Options. No Option granted pursuant to this Plan may be
designated as an Incentive Stock Option.
(c) Option Term. The term of each Option shall be ten years. No Option
shall be exercised by any person after expiration of the term of the Option.
(d) Method of Exercise. Exercise of Options shall be subject to any
trading policy of the Company applicable to members of the Board, including
without limitation any "blackout" period requirements or other restrictions on
the time during which Options may be exercised. Shares may be purchased or
acquired pursuant to an Option granted hereunder by giving written notice of
exercise to the Company, specifying the number of shares as to which the
Optionee desires to exercise the Option, and containing any representations
required by the Board. On or before the date specified for completion of the
purchase of shares pursuant to an Option, the Optionee must have paid the
Company the full purchase price of such shares in cash, certified or bank
check, or other instrument acceptable to the Board. As determined by the Board
in its sole discretion, payment in full or in part may also be made by
tendering to the Company shares of previously acquired unrestricted Common
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Stock of the Company (having a Fair Market Value as of the date the Option is
exercised equal to the exercise price (or such portion thereof)). Common Stock
used to pay the exercise price may be shares that are already owned by the
Optionee, or the Company may withhold shares of Common Stock that would
otherwise have been received by the Optionee upon exercise of the Option. In
its discretion, in accordance with rules and procedures established by the
Board for this purpose, the Board may also permit an Optionee to exercise an
Option through a "cashless exercise" procedure approved by the Board involving
a broker or dealer approved by the Board, provided that the Optionee has
delivered an irrevocable notice of exercise (the "Notice") to the broker or
dealer and such broker or dealer agrees: (A) to sell immediately the number of
shares of Common Stock specified in the Notice to be acquired upon exercise of
the Option in the ordinary course of its business, (B) to pay promptly to the
Company the aggregate exercise price (plus the amount necessary to satisfy any
applicable tax liability) and (C) to pay to the Optionee the balance of the
proceeds of the sale of such shares over the amount determined under clause (B)
of this sentence, less applicable commissions and fees; provided, however, that
the Board may modify the provisions of this sentence to the extent necessary to
conform the exercise of the Option to Regulation T under the Exchange Act or
any other applicable rules. The manner in which the exercise price may be paid
may be subject to certain conditions specified by the Board, including, without
limitation, conditions intended to avoid the imposition of liability against
the individual under Section 16 of the Exchange Act. If requested by the
Board, the Optionee shall deliver the Award Agreement evidencing an exercised
Option to the Secretary of the Company, who shall endorse thereon a notation of
such exercise and return such Award Agreement to the Optionee exercising the
Option. No fractional shares (or cash in lieu thereof) shall be issued upon
exercise of an Option and the number of shares that may be purchased upon
exercise shall be rounded to the nearest number of whole shares.
(e) Non-transferability. No Option granted under the Plan or any rights
or interests therein may be sold, transferred, assigned, pledged or otherwise
encumbered or disposed of, except by will, or the laws of descent and
distribution or pursuant to a "qualified domestic relations order" ("QDRO") as
defined in the Code or Title I of the Employee Retirement Income Security Act
of 1974, as amended, and the rules and regulations thereunder; provided,
however, that the Board may, subject to such terms and conditions as the Board
shall specify, permit the transfer of an Option granted after August 15, 1996
to an Optionee's family members or to one or more trusts established in whole
or in part for the benefit of one or more of such family members. During the
Optionee's lifetime, all Options shall be exercisable only by the Optionee or,
if applicable, the "alternate payee" under a QDRO, or the family member or
trust to whom such Option has been transferred in accordance with the previous
sentence.
(f) Termination by Reason of Death. In the event of the death of an
Optionee, any Option held by such Optionee may thereafter be exercised, to the
extent exercisable on the date of death, by the legal representative of the
estate or legatee of the Optionee under the will of the Optionee for a period
of one year from the date of such death or until the expiration of the stated
term of such Option, whichever period is shorter, and to the extent not
exercisable on the date of death, such Option shall be forfeited.
(g) Termination by Reason of Disability. In the event of the Disability
of an Optionee, any Option held by such Optionee may thereafter be exercised by
the Optionee, to the extent it was exercisable at the time of such Disability,
for a period of one year from the date of such Disability or until the
expiration of the stated term of such Option, whichever period is shorter, and
to the extent not exercisable on the date of Disability, such
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Option shall be forfeited; provided, however, that if the Optionee dies
within such one-year period, any unexercised Option held by such Optionee
shall thereafter be exercisable to the extent it was exercisable at the time
of death for a period of one year from the date of such death or until the
expiration of the stated term of such Option, whichever period is shorter.
(h) Other Terminations. If an Optionee ceases to be an Eligible Director
for any reason other than death or Disability, any Option held by such Optionee
may thereafter be exercised by the Optionee, to the extent it was exercisable
at the time of such termination, for a period of six months from the date of
such termination or the expiration of the stated term of such Option, whichever
period is shorter, and to the extent not exercisable on the date of
termination, such Option shall be forfeited; provided, however, that if the
Optionee dies within such six-month period, any unexercised Option held by such
Optionee shall thereafter be exercisable, to the extent to which it was
exercisable at the time of death, for a period of one year from the date of
such death or until the expiration of the stated term of the Option, whichever
period is shorter.
8. 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, until August 15,
1996, the provisions of the Plan respecting eligibility to participate may not
be amended more frequently than once, other than to comport with changes in the
Code, or the Employee Retirement Income Security Act of 1974, as amended, and
any rules or regulations thereunder; provided further 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 stockholders of the Company, shall not
be effective unless and until such stockholder approval has been obtained in
compliance with such law. The Board may amend the terms of any Option
theretofore granted, prospectively or retroactively, but no such amendment
shall impair the rights of any Optionee without the Optionee's consent.
Notwithstanding any provision herein to the contrary, the Board shall have
broad authority to amend the Plan or any Option to take into account changes in
applicable tax laws, securities laws, accounting rules and other applicable
state and federal laws.
9. 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 Optionees 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.
(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 (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
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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. 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, Paul Marciano or Armand Marciano, or any trust
established in whole or in part for the benefit of one or more 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.
10. Unfunded Status of the Plan.
The Plan is unfunded. Nothing contained herein shall give any such Optionee
any rights that are greater than those of a general creditor of the Company.
In its sole discretion, the Board 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.
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11. Effective Date and Term of the Plan.
The Plan shall be effective as of the date the Plan is approved by the Board,
provided that the Plan is approved by the affirmative votes of a majority of
shares of Common Stock or by written consent of a majority of shares of Common
Stock. Options granted under the Plan prior to such shareholder approval shall
be and are made subject to defeasance by the failure of the shareholders to
approve the Plan. The Plan shall continue in effect until the earlier of
(a) ten years from the date of the first grant of Options or (b) the
termination of the Plan by action of the Board. No Options shall be granted
pursuant to the Plan on or after such termination date, but Options 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 Options
then outstanding.
12. General Provisions.
(a) Representations by Optionees. The Board may require each Optionee to
represent to and agree with the Company in writing that the Optionee 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) 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 stockholder approval, if such
approval is required) and such arrangements may be either generally applicable
or applicable only in specific cases.
(c) 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.
(d) Tax Withholding. No later than the date as of which an amount first
becomes includable in the gross income of the Optionee for applicable income
tax purposes with respect to any award under the Plan, the Optionee 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 Optionee.
(e) Issue and Transfer Taxes. The Board may agree to require the Company
to pay issuance or transfer taxes on shares issued pursuant to the exercise of
an Option under the Plan.
(f) 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.
(g) 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
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enforced as if such illegal or invalid provision had never been included
herein.
(h) 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.
(i) 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.
(j) 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.
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