Exhibit 10.14
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made and entered into as of August
1, 1996, between Guess ?, Inc., a Delaware corporation (the "Company"), and
the stockholders of the Company indicated on the signature pages hereto
(being referred to herein from time to time, collectively, as the "Trusts",
and each individually, as a "Trust").
R E C I T A L S
WHEREAS, on the date hereof, each Trust is the owner of the respective
number of shares of the Company's Common Stock, par value $.01 per share (the
"Common Stock"), set forth opposite the name of such Trust on the signature
pages hereto;
WHEREAS, the Trusts have approved various actions in connection with a
proposed initial public offering of up to 10,580,000 shares of the Common
Stock, including the approval of a Restated Certificate of Incorporation;
WHEREAS, the parties hereto desire to provide for the registration under
the Securities Act of 1933, as amended (the "Securities Act"), of the shares
of Common Stock owned by the Trusts as of the date hereof, on the terms and
conditions set forth herein; and
WHEREAS, the Board of Directors of the Company has authorized the
officers of the Company to execute and deliver this Agreement in the name of
and on behalf of the Company.
NOW, THEREFORE, in consideration of the mutual covenants, promises,
representations, warranties and conditions set forth in this Agreement, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Definitions.
For purposes of this Agreement, in addition to the definitions set forth
above and elsewhere herein, the following terms shall have the following
respective meanings:
"Affiliate" of a Holder shall mean a person who controls, is
controlled by or is under common control with such Holder or, the spouse
or children (or a trust exclusively for the benefit of a spouse and/or
children) of such Holder or, in the case of a Holder which is a trust,
the trustee and the beneficiaries of such trust.
"Clearance Notice" shall have the meaning specified in the last
paragraph of Section 5.
"Commission" shall mean the United States Securities and Exchange
Commission and any successor agency thereto.
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"Common Stock" shall have the meaning specified in the first
Recital.
"Company" shall have the meaning specified in the Preamble.
"Demand Notice" shall have the meaning specified in Section 2(a).
"Demand Registration" shall have the meaning specified in Section
2(a).
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at the
time.
"Holder" shall mean a Trust or any transferee or assignee to whom
the rights under this Agreement are assigned in accordance with the
provisions of Section 10 hereof.
"Maximum Offering Size" shall have the meaning specified in
Section 3(b)(ii).
"Occurrence Notice" shall have the meaning specified in the last
paragraph of Section 5.
"Person" shall mean an individual, partnership, corporation, limited
liability company, joint venture, association, joint-stock company,
trust, unincorporated organization, government or agency or political
subdivision thereof, or other entity.
"Registrable Stock" shall mean; (i) the Common Stock beneficially
owned by the Trusts on the date hereof; (ii) any Common Stock issued as
(or issuable upon the conversion or exercise of any warrant, right,
option or other convertible security which is issued as) a dividend or
other distribution with respect to, or in exchange for, or in
replacement of, the Common Stock owned by the Trusts on the date hereof
and (iii) any Common Stock issued by way of a stock split of the Common
Stock referred to in clauses (i) or (ii) above. For purposes of this
Agreement, any Registrable Stock shall cease to be Registrable Stock
when (x) a registration statement covering such Registrable Stock has
been declared effective and such Registrable Stock has been disposed of
pursuant to such effective registration statement or (y) such
Registrable Stock is sold or distributed pursuant to Rule 144 (or any
similar or successor provision (but not Rule 144A)) under the Securities
Act.
"Requesting Holders" shall have the meaning specified in Section
2(a).
"Securities Act" shall have the meaning specified in the third
Recital.
"Shelf Registration" shall have the meaning specified in Section
2(b)(i).
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"Shelf Registration Statement" shall have the meaning specified in
Section 2(b)(ii).
"Trust" or "Trusts"shall have the meaning specified in the
Preamble.
"Underwritten Offering" or "Underwritten Registration" shall mean a
registration in which securities of the Company are sold to an
underwriter or underwriters for reoffering to the public.
2. Demand Registration.
(a) At any time commencing 180 days after the date of this Agreement,
the Holders of at least [10%] of the then outstanding Registrable Stock (the
"Requesting Holders") may request, in a written notice to the Company (a
"Demand Notice"), that the Company file a registration statement under the
Securities Act covering the registration of at least [10%] of the Registrable
Stock then outstanding in the manner specified in such notice (a "Demand
Registration"). Promptly following receipt of a Demand Notice (such request
to state the number of shares of Registrable Stock to be so included and the
intended method of distribution), the Company shall (x) within twenty (20)
days notify all other Holders of such request in writing and (y) use its best
efforts to cause to be registered under the Securities Act all Registrable
Stock that the Requesting Holders and such other Holders have, within ten
(10) days after the Company has given such notice, requested be registered in
accordance with the manner of distribution specified in the Demand Notice by
the Requesting Holders.
(b) (i) If any Demand Registration is requested to be a "shelf"
registration by the Requesting Holders of the Registrable Stock to be
included in such Demand Registration, the Company shall cause to be filed
pursuant to Rule 415 under the Securities Act a shelf Registration Statement
(a "Shelf Registration Statement") with respect to the number of shares of
Registrable Stock requested to be so registered (a "Shelf Registration").
The Company shall keep such Shelf Registration Statement continuously
effective for a period of at least one year following the date on which the
Commission declares such Shelf Registration Statement effective under the
Securities Act (subject to extension pursuant to Section 4(a) and the last
paragraph of Section 5 hereof), or such shorter period ending when all of the
shares of Registrable Stock covered by such Shelf Registration Statement have
been sold.
(ii) Upon the occurrence of any event that would cause the Shelf
Registration Statement (A) to contain a material misstatement or omission or
(B) to be not effective and usable for resale of Registrable Securities
during the period that such Shelf Registration Statement is required to be
effective and usable, the Company shall promptly file an amendment to the
Shelf Registration Statement, in the case of clause (A), correcting any such
misstatement or omission and, in the case of either clause (A) or (B), use
its best efforts to cause such amendment to be declared effective and such
Shelf Registration Statement to become usable as soon as practicable
thereafter.
(c) If the Requesting Holders intend to have the Registrable Stock
distributed by means of an Underwritten Offering, the Company shall include
such information in the written notice referred to in clause (x) of
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Section 2(a) above. In such event, the right of any Holder to include its
Registrable Stock in such registration shall be conditioned upon such
Holder's participation in such Underwritten Offering and the inclusion of
such Holder's Registrable Stock in the Underwritten Offering (unless
otherwise mutually agreed by a majority in interest of the Requesting Holders
and such Holder) to the extent provided below. All Holders proposing to
distribute Registrable Stock through such Underwritten Offering shall enter
into an underwriting agreement in customary form with the underwriter or
underwriters. Such underwriter or underwriters shall be selected by a
majority in interest of the Requesting Holders and shall be approved by the
Company, which approval shall not be unreasonably withheld; provided, that
(i) all of the representations and warranties by, and the other agreements on
the part of, the Company to and for the benefit of such underwriters shall
also be made to and for the benefit of such Holders of Registrable Stock,
(ii) any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement shall be conditions precedent
to the obligations of such Holders of Registrable Stock, and (iii) no Holder
shall be required to make any representations or warranties to or agreements
with the Company or the underwriters other than representations, warranties
or agreements regarding such Holder, the Registrable Stock of such Holder and
such Holder's intended method of distribution and any other representations
required by law or reasonably required by the underwriter. If any Holder of
Registrable Stock disapproves of the terms of the underwriting, such Holder
may elect to withdraw all its Registrable Stock by written notice to the
Company, the managing underwriter and the Initiating Holders. The securities
so withdrawn shall also be withdrawn from registration and shall remain
Registrable Stock.
(d) Notwithstanding any provision of this Agreement to the contrary,
(i) the Company shall not be required to effect a Demand
Registration during the period starting 30 days prior to the estimated
date of filing by the Company of, and ending on a date 180 days
following the effective date of, a registration statement pertaining to
a public offering of equity securities of the Company;
(ii) the Company shall not be required to effect more than one Demand
Registration in any six-month period;
(iii) if, in the written opinion of the managing underwriter of
any Underwritten Offering, the total amount of Registrable Stock to be
registered in connection with a Demand Registration will exceed the
maximum amount of the Company's securities that can be marketed (1) at a
price reasonably related to the then current market value of such
securities or (2) without otherwise materially and adversely affecting
the entire offering, then the Company shall include in such Demand
Registration the number of shares of Registrable Stock that in the
opinion of such managing underwriter can be sold within a price range
acceptable to the Holders of a majority of the Registrable Stock
requested to be included in such Demand Registration by the Requesting
Holders pursuant to Section 2(a), allocated pro rata among the
Requesting Holders on the basis of the relative number of shares of
Registrable Stock each such Holder has requested to be included in such
registration; and
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(iv) if the Company shall furnish to the Requesting Holders a
certificate signed by the president of the Company stating that in the
good faith opinion of a majority of the Board of Directors of the
Company such registration would interfere with any material transaction
then being pursued by the Company, then the Company's obligation to use
its best efforts to file a registration statement shall be deferred for
a period not to exceed 60 days.
(e) The Company shall not be obligated to effect more than three Demand
Registrations; PROVIDED, HOWEVER, that a Demand Registration shall not be
deemed to have been effected for purposes of this Section 2(e) unless: (i) it
has been declared effective by the Commission; (ii) it has remained effective
for the period set forth in Section 5(a) and (iii) the offering of
Registrable Stock pursuant to such registration is not subject to any stop
order, injunction or other order or requirement of the Commission (other than
any such stop order, injunction or other requirement of the Commission
prompted by any act or omission of a Requesting Holder).
3. Incidental Registration.
(a) Subject to Section 8 and the other terms and conditions set forth in
this Section 3, if at any time the Company determines that it shall file a
registration statement under the Securities Act (other than a registration
statement on Form S-4 or S-8 or filed in connection with an exchange offer or
an offering of securities solely to the Company's existing stockholders) on
any form that would also permit the registration of the Registrable Stock and
such filing is to be on the Company's behalf and/or on behalf of selling
holders (including Requesting Holders) of its securities for the sale of
shares of Common Stock, the Company shall each such time promptly give each
Holder written notice of such determination setting forth the date on which
the Company proposes to file such registration statement, which date shall be
no earlier than 30 days from the date of such notice, and advising such
Holders of their right to have Registrable Stock included in such
registration. Upon the written request of any Holder received by the Company
no later than 30 days after the date of the Company's notice, the Company
shall use its best efforts to cause to be registered under the Securities Act
all of the Registrable Stock that each such Holder has so requested to be
registered.
(b) The Company's obligation to include Registrable Stock in a
registration statement pursuant to Section 3(a) above is subject to the
following limitations, conditions and qualifications:
(i) If, at any time after giving written notice of its
determination to register its securities and prior to the effective date
of any registration statement filed in connection with such
registration, the Company shall determine for any reason not to register
such securities, the Company may, at its election, give written notice
of such determination to the Holders and thereupon the Company shall be
relieved of its obligation to use any efforts to register any
Registrable Stock in connection with such aborted registration;
provided, that the provisions of this clause (i) shall not affect the
obligations of the Company with respect to a Demand Registration.
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(ii) If, in the written opinion of the managing underwriter (or, in
the case of a non-Underwritten Offering, in the opinion of a majority of
the directors of the Company), the total amount of such securities to be
so registered, including such Registrable Stock, will exceed the maximum
amount (the "Maximum Offering Size") of the Company's securities that
can be marketed (1) at a price reasonably related to the then current
market value of such securities or (2) without otherwise materially and
adversely affecting the entire offering, then the Company shall include
in such registration, in the following priority up to the Maximum
Offering Size: (x) first, all of the securities proposed to be
registered for offer and sale by the Company, (y) second, all of the
Registrable Stock requested to be included in such registration by the
Holders pursuant to this Section, allocated, if necessary for such
offering not to exceed the Maximum Offering Size, pro rata among the
Holders requesting registration of such Registrable Stock on the basis
of the relative number of shares of Registrable Stock each such Holder
has requested to be included in such registration, and (z) third, any
other securities of the Company requested to be registered by any other
parties.
4. Holdback Agreements.
(a) Each Holder of Registrable Stock agrees, if so required (pursuant to
a timely notice) by the Company or the managing underwriter in any
Underwritten Offering, not to effect any public sale of distribution of
securities of the Company of the same class as the securities included in
such Underwritten Registration, or any securities convertible into or
exchangeable to exercisable therefor, during the 30 days prior to and the 180
days after any Underwritten Registration pursuant to Section 2 or Section 3
has become effective, except as part of such Underwritten Registration.
Notwithstanding the foregoing sentence, each Holder of Registrable Stock
subject to the foregoing sentence shall be entitled to sell securities during
the foregoing period in a private sale. If a request is made pursuant to
this Section 4(a), then the time period during which a Shelf Registration is
required to remain continuously effective for such Holders of Registrable
Stock pursuant to the terms of this Agreement shall be extended 210 days.
None of the foregoing provisions of this Section 4(a) shall apply to any
Holder of Registrable Stock if such Holder is prevented by applicable statute
or regulation from entering into any such agreement; provided, that any such
Holder shall undertake not to effect any public sale or distribution of the
Registrable Stock unless such Holder has provided 45 days' prior written
notice of such sale or distribution to the underwriter or underwriters.
(b) The Company agrees (i) if so required by the managing underwriter of
any Underwritten Offering, not to effect any public sale or distribution of
securities of the same class as the securities included in such Underwritten
Registration or securities convertible into or exchangeable or exercisable
therefor during the 30 days prior to and the 90 days after any Underwritten
Registration pursuant to Section 2 or Section 3 has become effective, except
as part of such Underwritten Registration and except pursuant to
registrations on Form S-4 or S-8 or any successor form to such Forms, and
(ii) to use its best efforts to cause each holder of equity securities
included in any Underwritten Registration or any securities
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convertible into or exchangeable or exercisable therefor, in each case
purchased from the Company at any time after the date of this Agreement
(other than in a public offering) to agree not to effect any public sale or
distribution of or otherwise dispose of shares of equity securities (or such
other securities) during such period except as part of such Underwritten
Registration.
5. Registration Procedures. Whenever required under Section 2 or
Section 3 of this Agreement to use its best efforts to effect the
registration of any Registrable Stock, the Company shall, as expeditiously as
possible:
(a) prepare and file with the Commission a registration statement
with respect to such Registrable Stock and use its best efforts to cause
such registration statement to become and remain effective for the
period of the distribution contemplated thereby;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to comply with the provisions
of the Securities Act with respect to the disposition of all Registrable
Stock covered by such registration statement;
(c) furnish to each Holder such numbers of copies of the
registration statement and each prospectus included therein (including
each preliminary prospectus and any amendments or supplements thereto)
in conformity with the requirements of the Securities Act and such other
documents and information as they may reasonably request;
(d) use its best efforts to register or qualify the Registrable
Stock covered by such registration statement under the securities or
blue sky laws of such jurisdictions as shall be reasonably appropriate
for the distribution of the Registrable Stock covered by the
registration statement; PROVIDED, HOWEVER, that the Company shall not be
required in connection therewith or as a condition thereto to qualify to
do business in or to file a general consent to service of process in any
jurisdiction wherein it would not but for the requirements of this
paragraph (d) be obligated to do so;
(e) promptly notify (but in any event within five business days)
the selling Holders of Registrable Stock, their counsel and the managing
underwriters, if any, and confirm such notice in writing, (i) when a
prospectus or any prospectus supplement has been filed and, with respect
to a registration statement or any post-effective amendment, when the
same has become effective, (ii) of any request by the Commission or any
other Federal or state governmental authority for amendments or
supplements to a registration statement or related prospectus or for
additional information, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of a registration statement or
of any order preventing or suspending the use of any prospectus or the
initiation of any proceedings by an Person for that purpose, (iv) if at
any time the representations and warranties of the Company contained in
any agreement (including any underwriting agreement) contemplated by
Section 6(l) below ease to be true and correct, (v) of the receipt by
the Company of any notification with respect to the suspension of the
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qualification of exempting from qualification of a registration
statement or any of the Registrable Stock for offer or sale under the
securities or blue sky laws of any jurisdiction, or the contemplation,
initiation or threatening of any proceeding for such purpose, (vi) of
the happening of any event that makes any statement made in such
registration statement or related prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue in
any material respect or that requires the making of any changes in such
registration statement, prospectus or documents so that it will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made (in the case of the prospectus only) not misleading, and (vii) of
the Company's reasonable determination that a post-effective amendment
to a registration statement would be appropriate;
(f) furnish, at the request of any Holder requesting registration
of Registrable Stock pursuant to Section 2, if the method of
distribution is by means of an Underwritten Offering, on the date that
the shares of Registrable Stock are delivered to the underwriters for
sale pursuant to such registration, or if such Registrable Stock is not
being sold through underwriters, on the date that the registration
statement with respect to such shares of Registrable Stock becomes
effective: (i) a signed opinion, dated such date, of the independent
legal counsel representing the Company for the purpose of such
registration, addressed to the underwriters, if any, and if such
Registrable Stock is not being sold through underwriters, then to the
Holders making such request, as to such matters as such underwriters or
the Holders holding a majority of the Registrable Stock included in such
registration, as the case may be, may reasonably request and as would be
customary in such a transaction and (ii) letters dated such date and the
date the offering is priced from the independent certified public
accountants of the Company, addressed to the underwriters, if any, and
if such Registrable Stock is not being sold through underwriters, then
to the Holders making such request (1) stating that they are independent
certified public accountants within the meaning of the Securities Act
and that, in the opinion of such accountants, the financial statements
and other financial data of the Company included in the registration
statement or the prospectus, or any amendment or supplement thereto,
comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and (2) covering such
other financial matters (including information as to the period ending
not more than five business days prior to the date of such letters) as
such underwriters or the Holders holding a majority of the Registrable
Stock included in such registration, as the case may be, may reasonably
request and as would be customary in such a transaction;
(g) enter into customary agreements (including, if the method of
distribution is by means of an Underwritten Offering an underwriting
agreement in customary form) and take such other actions as are
reasonably required in order to expedite or facilitate the disposition
of the Registrable Stock to be so included in the registration statement;
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(h) As promptly as practicable upon the occurrence of any event
contemplated by paragraph (e)(vi) above, prepare a supplement or
post-effective amendment to the registration statement or a supplement
to the related prospectus or any documents incorporated or deemed to be
incorporated therein by reference, or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable
Stock being sold thereunder, such prospectus will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances;
(i) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission; and
(j) use its best efforts to list the Registrable Stock covered by
such registration statement with any securities exchange on which the
Common Stock of the Company is then listed.
For purposes of Sections 5(a) and 5(b), the period of distribution of
Registrable Stock in a firm commitment Underwritten Offering shall be deemed
to extend until each underwriter has completed the distribution of all
securities purchased by it, and the period of distribution of Registrable
Stock in any other registration shall be deemed to extend until the earlier
of the sale of all Registrable Stock covered thereby and three months after
the effective date thereof.
Each Holder of Registrable Stock agrees that, upon receipt of written
notice from the Company of the happening of any event of the kind described
in Section 5(e)(ii), 5(e)(iii), 5(e)(v), 5(e)(vi) or 5(e)(vii) (an
"Occurrence Notice"), such Holder will forthwith discontinue disposition of
such Registrable Stock covered by such registration statement or prospectus
until such Holder's receipt of the copies of the supplemented or amended
registration statement or prospectus contemplated by Section 5(h), or until
it receives notice in writing (a "Clearance Notice") from the Company that
the use of the applicable prospectus may be resumed, and has received copies
of any additional or supplemental filings that are incorporated or deemed to
be incorporated by reference in such prospectus, and, if so directed by the
Company, such Holder will deliver to the Company (at the Company's expense)
all copies, other than permanent file copies then in such Holder's
possession, of the prospectus covering such Registrable Stock current at the
time of receipt of such notice. If the Company shall deliver an Occurrence
Notice in connection with any registered sale of Registered Stock, the time
periods mentioned in Section 2 hereof shall be extended by the number of days
during such periods from and including the date of delivery of such
Occurrence Notice to and including the date when each seller of Registrable
Stock covered by such registration statement receives (x) the copies of the
supplemented or amended prospectus contemplated by Section 5(h) hereof or (y)
a Clearance Notice, as the case may be.
6. Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement that
the Holders shall furnish to the Company such information regarding
themselves, the Registrable Stock held by them, and the intended method of
disposition of such securities as the Company shall reasonably request and as
shall be required in connection with the action to be taken by the Company.
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7. Expenses of Registration. All expenses incurred in connection with
each registration pursuant to Section 2 and Section 3 of this Agreement,
excluding underwriters' discounts and commissions, but including without
limitation all registration, filing and qualification fees, word processing,
duplicating, printers' and accounting fees (including the expenses of any
special audits or "cold comfort" letters required by or incident to such
performance and compliance), fees of the National Association of Securities
Dealers, Inc. or listing fees, messenger and delivery expenses, all fees and
expenses of complying with state securities or blue sky laws, fees and
disbursements of counsel for the Company, and the fees and disbursements of
one counsel for the selling Holders (which counsel shall be selected by the
Holders holding a majority in interest of the Registrable Stock being
registered), shall be paid by the Company; PROVIDED, HOWEVER, that if a
registration request pursuant to Section 2 of this Agreement is subsequently
withdrawn at the request of the Holders of a number of shares of Registrable
Stock such that the remaining Holders requesting registration would not have
been able to request registration under the provisions of Section 2 of this
Agreement, such withdrawing Holders shall bear such expenses unless such
withdrawing Holders shall forfeit their right to one Demand Registration
pursuant to Section 2 of this Agreement. The Holders shall bear and pay the
underwriting commissions and discounts applicable to securities offered for
their account in connection with any registrations, filings and
qualifications made pursuant to this Agreement.
8. Underwriting Requirements. In connection with any Underwritten
Offering, the Company shall not be required under Section 3 to include shares
of Registrable Stock in such Underwritten Offering unless the Holders of such
Registrable Stock accept the terms of the underwriting of such offering that
have been reasonably agreed upon between the Company and the underwriters
selected by the Company.
9. Rule 144 and Rule 144A Information. With a view to making available
the benefits of certain rules and regulations of the Commission which may at
any time permit the sale of the Registrable Stock to the public without
registration,
(a) at all times after ninety (90) days after any registration
statement covering a public offering of securities of the Company under
the Securities Act shall have become effective, the Company agrees to:
(i) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(ii) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(iii) furnish to each Holder of Registrable Stock promptly upon
request a written statement by the Company as to its compliance with the
reporting requirements of such Rule 144 and of the Securities Act and
the Exchange Act, a copy of the most recent annual or quarterly report
of the Company, and such other reports and documents so filed by the
Company as such Holder may reasonably request in availing itself of
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any rule or regulation of the Commission allowing such Holder to sell
any Registrable Stock without registration; and
(b) at all times during which the Company is neither subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, nor
exempt from reporting pursuant to Rule 12g3-2(b) under the Exchange Act,
it will provide, upon the written request of any Holder of Registrable
Stock in written form (as promptly as practicable and in any event
within 15 business days), to any prospective buyer of such stock
designated by such Holder, all information required by Rule
144A(d)(4)(i) of the General Regulations promulgated by the Commission
under the Securities Act.
10. Indemnification. In the event any Registrable Stock is included in
a registration statement under this Agreement:
(a) The Company shall indemnify and hold harmless each Holder and
its directors and officers, each person who participates in the offering
of such Registrable Stock, including underwriters (as defined in the
Securities Act), and each person, if any, who controls such Holder or
participating person within the meaning of the Securities Act, against
any losses, claims, damages or liabilities, joint or several, as
incurred, to which they may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
proceedings in respect thereof) arise out of or are based on any untrue
or alleged untrue statement of any material fact contained in such
registration statement on the effective date thereof (including any
prospectus filed under Rule 424 under the Securities Act or any
amendments or supplements thereto) or arise out of or are based upon the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and shall reimburse each such Holder and its directors and
officers, such participating person or controlling person for any legal
or other expenses as reasonably incurred by them (but not in excess of
expenses incurred in respect of one counsel for all of them unless there
is an actual conflict of interest between any indemnified parties, which
indemnified parties may be represented by separate counsel) in
connection with investigating or defending any such loss, claim, damage,
liability or action; PROVIDED, HOWEVER, that the indemnity agreement
contained in this Section 10(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company; PROVIDED,
FURTHER, that the Company shall not be liable to any Holder or its
directors and officers, participating person or controlling person in
any such case for any such loss, claim, damage, liability or action to
the extent that it arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission in reliance
upon and in conformity with written information furnished expressly for
use in connection with such registration by any such Holder, its
directors and officers, participating person or controlling person.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of any such Holder, its directors and
officers, participating person or controlling person, and shall survive
the transfer of such securities by such Holder.
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(b) Each Holder requesting or joining in a registration shall,
severally and not jointly, indemnify and hold harmless the Company, each
of its directors and officers, each person, if any, who controls the
Company within the meaning of the Securities Act, and any underwriter
against any losses, claims, damages or liabilities, joint or several, to
which the Company or any such director, officer, controlling person or
underwriter may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or proceedings
in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in such
registration statement on the effective date thereof (including any
prospectus filed under Rule 424 under the Securities Act or any
amendments or supplements thereto) or arise out of or are based upon the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with information
furnished by or on behalf of such Holder expressly for use in connection
with such registration; and each such Holder shall reimburse any legal
or other expenses reasonably incurred by the Company or any such
director, officer, controlling person or underwriter (but not in excess
of expenses incurred in respect of one counsel for all of them unless
there is an actual conflict of interest between any indemnified parties,
which indemnified parties may be represented by separate counsel) in
connection with investigating or defending any such loss, claim, damage,
liability or action; PROVIDED, HOWEVER, that the indemnity agreement
contained in this Section 10(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of such Holder, and provided,
further, that the liability of each Holder hereunder shall be limited to
the proportion of any such loss, claim, damage, liability or expense
which is equal to the proportion that the net proceeds from the sale of
the Registrable Stock sold by such Holder under such registration
statement bears to the total net proceeds from the sale of all
securities sold thereunder, but not in any event to exceed the net
proceeds received by such Holder from the sale of Registrable Stock
covered by such registration statement.
(c) Promptly after receipt by an indemnified party under this
Section 10 of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against any
indemnifying party under this Section 10, notify the indemnifying party
in writing of the commencement thereof and the indemnifying party shall
have the right to participate in and assume the defense thereof with
counsel selected by the indemnifying party and reasonably satisfactory
to the indemnified party; PROVIDED, HOWEVER, that an indemnified party
shall have the right to retain its own counsel, with all fees and
expenses thereof to be paid by such indemnified party, and to be
apprised of all progress in any proceeding the defense of which has been
assumed by the indemnifying party. The failure to notify an
indemnifying party promptly of the commencement of any such action, if
and to the extent prejudicial to its ability to defend such action,
shall relieve such indemnifying party of any liability to the
indemnified party under this Section, but the omission so to notify the
12
indemnifying party will not relieve it of any liability that it may have
to any indemnified party otherwise than under this Section.
(d) To the extent any indemnification by an indemnifying party is
prohibited or limited by law, the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages or liabilities in such proportion as is appropriate to reflect
the relative fault of the indemnifying party and indemnified party in
connection with the actions which resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged
untrue statement of material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information
supplied by, such indemnifying party or indemnified party, and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action. The amount paid or
payable by a party as a result of the losses, claims, damages or
liabilities referred to above shall be deemed to include any legal or
other fees or expenses reasonably incurred by such party in connection
with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 10(d) were determined by pro rata
allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
11. Transfer of Registration Rights. The registration rights of any
Holder under this Agreement with respect to any Registrable Stock may be
transferred to (a) any transferee of such Registrable Stock who at any time
acquires at least twenty per cent (20%) of such Holder's shares of
Registrable Stock (adjusted for stock splits and stock consolidations after
the effective date of this Agreement) or (b) any Affiliate of such Holder;
PROVIDED, HOWEVER, that (i) the transferring Holder shall give the Company
written notice at or prior to the time of such transfer stating the name and
address of the transferee and identifying the securities with respect to
which the rights under this Agreement are being transferred; (ii) such
transferee shall agree in writing, in form and substance reasonably
satisfactory to the Company, to be bound as a Holder by the provisions of
this Agreement; and (iii) immediately following such transfer the further
disposition of such securities by such transferee is restricted under the
Securities Act. Except as set forth in this Section 11, no transfer of
Registrable Stock shall cause such Registrable Stock to lose such status.
12. Securities Held by the Company or its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable Stock
is required hereunder, Registrable Stock held by the Company or its
affiliates (as such term is defined in Rule 405 under the Securities Act)
13
(other than the Trusts) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
13. Successors and Assigns. Subject to Section 11, the terms and
conditions of this Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns of the parties hereto. Except as
expressly provided in this Agreement, nothing in this Agreement, express or
implied, is intended to confer upon any person other than the parties hereto
or their respective successors and assigns any rights, remedies, obligations,
or liabilities under or by reason of this Agreement.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
15. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
16. Titles. The titles of the Sections of this Agreement are used for
convenience only and are not to be considered in construing or interpreting
this Agreement.
17. Notices. Any notice required or permitted under this Agreement
shall be in writing and shall be delivered in person or mailed by certified
or registered mail, return receipt requested, or faxed to (a) the Company at
the address set forth below its signature hereof, (b) to each Holder at the
address set forth below its signature hereof or (c) to a Holder at the
address therefor as set forth in the Company's records or, in any such case,
at such other address or addresses as shall have been furnished in writing by
such party to the others. The giving of any notice required hereunder may be
waived in writing by the parties hereto. Every notice or other communication
hereunder shall be deemed to have been duly given or served on the date on
which personally delivered, or on the date actually received, if sent by mail
or fax, with receipt acknowledged.
18. Amendments and Waivers. Any provision of this Agreement may be
amended and the observance of any provision of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and each Holder
of Registrable Stock. Any amendment or waiver effected in accordance with
this Section 17 shall be binding upon each Holder of Registrable Securities,
each future Holder and the Company.
19. Severability. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provisions shall be excluded
from this Agreement and the balance of this Agreement shall be interpreted as
if such provisions were so excluded and shall be enforceable in accordance
with its terms.
20. Entire Agreement. All prior agreements of the parties concerning
the subject matter of this Agreement are expressly superseded by this
Agreement. This Agreement contains the entire Agreement of the parties
concerning the subject matter hereof. Any oral representations or
modifications of this Agreement shall be of no effect.
14
[Signature pages follow]
15
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
GUESS ?, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
14,480,153 shares of Common Stock ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ TRUST
(1995 RESTATEMENT)
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Trustee
c/o Guess ?, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
11,633,149 shares of Common Stock ▇▇▇▇ ▇▇▇▇▇▇▇▇ TRUST
DATED FEBRUARY 20, 1986
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
Trustee
c/o Guess ?, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
16
5,913,437 shares of Common Stock ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ TRUST
DATED FEBRUARY 20, 1986
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Trustee
c/o Guess ?, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
1,728,276 shares of Common Stock ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 1996 GRANTOR
RETAINED ANNUITY TRUST
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
Co-Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Co-Trustee
c/o Guess ?, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
1,212,149 shares of Common Stock ▇▇▇▇ ▇▇▇▇▇▇▇▇ 1996 GRANTOR
RETAINED ANNUITY TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Co-Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Co-Trustee
c/o Guess ?, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
17
714,655 shares of Common Stock ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 1996 GRANTOR RETAINED
ANNUITY TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Co-Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
Co-Trustee
c/o Guess ?, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
18