*10.1. Amended and Restated Stockholders' Agreement.
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AMENDED AND RESTATED
SHAREHOLDERS' AGREEMENT
THIS AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT is entered into as
of August 8, 1996 (this "Restated Agreement"), by and among Maurice Marciano,
as Trustee of the Maurice Marciano Trust (1995 Restatement), Paul Marciano,
as Trustee of the Paul Marciano Trust dated February 20, 1986, and Armand
Marciano, as Trustee of the Armand Marciano Trust dated February 20, 1986,
(collectively, the "Initial Stockholders") and Guess ?, Inc., a Delaware
corporation, having its principal office and place of business at 1444 South
Alameda Street, Los Angeles, California 90021 (hereinafter referred to as the
"Corporation").
WHEREAS, the Initial Stockholders are currently the owners of
32,026,739 shares of the issued and outstanding shares (the "Shares") of the
Corporation's common stock, par value $.01 per share (the "Common Stock"),
and, after the proposed offering of 7,000,000 shares of Common Stock by the
Corporation (the "Offering"), the Initial Stockholders will continue to own
approximately 75% of the Corporation's issued and outstanding capital stock;
WHEREAS, the Initial Stockholders and the Corporation are parties to a
Restated Shareholders' Agreement dated as of November 12, 1993, as amended to
date (the "Shareholders' Agreement"), which governs, among other issues, the
management and ownership of the shares of Common Stock owned by the
Stockholders;
WHEREAS, the Stockholders and the Corporation desire to further amend
and restate the Shareholders' Agreement in its entirety and to add additional
parties to this Restated Agreement as Stockholder; and
WHEREAS, the Maurice Marciano 1996 Grantor Retained Annuity Trust, the
Paul Marciano 1996 Grantor Retained Annuity Trust and the Armand Marciano
1996 Grantor Retained Annuity Trust (collectively, the "Transferee
Stockholders" and, together with the Initial Stockholders, being referred to
herein, collectively, as the "Stockholders") collectively hold the remaining
3,655,080 shares or approximately 8.6% of the Common Stock outstanding after
the Offering and desire to become parties to this Restated Agreement, and the
Initial Stockholders and the Corporation are willing to add them as parties
thereto.
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NOW, THEREFORE, in consideration of the premises and the mutual
covenants set forth herein, the parties hereto agree that the Shareholders'
Agreement is hereby further amended and restated to read in its entirety as
follows:
1. TERM OF AGREEMENT
This Restated Agreement shall be effective from the date hereof until
the earliest to occur of any of the following:
(i) The cessation for a substantial period of time of the
Corporation's business;
(ii) The liquidation or dissolution of the Corporation;
(iii) The entry of a decree or order by a court having jurisdiction
adjudging the Corporation bankrupt or insolvent or seeking reorganization,
arrangement, adjustment or composition of or in respect of the
Corporation, or appointing a custodian, receiver, liquidator, trustee (or
other similar official) of the Corporation or ordering the winding up or
the liquidation of its affairs and the continuance of such decree or order
unstayed and in effect for a period of 60 consecutive days;
(iv) A permitted transfer of all of the Shares by the Stockholders;
(v) Only one Stockholder shall own shares of Common Stock or other
voting securities of the Corporation; or
(vi) The aggregate amount of Common Stock held by the
Stockholders shall constitute less than 10% of the issued and outstanding
Common Stock.
2. VOTING AGREEMENT
Each of the Stockholders hereby covenants and agrees that, so long as
it is a stockholder of the Corporation, he will vote (or cause the voting of)
the shares of Common Stock of the Corporation then owned by it (or any such
shares which he has the right to vote, pursuant to any agreement or proxy),
in favor of the election of each of Messrs. Maurice Marciano, Paul Marciano
and Armand Marciano, in their individual capacities (collectively, the
"Individuals") (or, if any of them shall decline to serve, the designee (if
any) of such person, if such designee shall be reasonably acceptable to the
other Individuals) to the Board of Directors of the Corporation (the
"Board"). In the event of the death or disability of any of the Individuals,
the executor, conservator or lawful heir of such person shall assume such
person's right to designate a Director (including such executor, conservator
or lawful heir) for election as aforesaid.
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3. LEGENDS ON CERTIFICATES
The certificates evidencing the shares of Common Stock held by the
Stockholders shall bear any legends required by federal or state securities
law and the following legend required by Section 202(a) of the Delaware
General Corporation Law (the "DGCL"):
"The shares represented by this Certificate may not be assigned, sold,
transferred, hypothecated, or otherwise disposed of, except in accordance
with the Amended and Restated Shareholders' Agreement dated as of August
8, 1996, which is on file at the office of the issuer."
4. RESTRICTIONS ON DISPOSITION
A. Subject to Subsection E below, no Stockholder shall voluntarily
transfer, sell, assign, pledge, encumber, grant any option with respect to,
or otherwise create any legal or equitable interest in any shares of Common
Stock owned by it except pursuant to a sale of all or any part of such shares
of Common Stock for cash, notes or Public Equity Securities (as hereinafter
defined), or a combination of the three, made in accordance with Subsection B
below. As used herein, "Public Equity Securities" shall mean any securities
which are either listed on a national securities exchange or are traded on
the National Association of Securities Dealers Automated Quotation System and
which, in the hands of the Stockholder or Stockholders receiving them in
payment for any Shares, will be (i) freely transferable without registration
under the Securities Act of 1933, as amended, or any applicable state
securities law, and (ii) free and clear of any liens, claims, right to
purchase or sell or other encumbrance of any kind.
B. If any Stockholder shall receive a bona fide offer (an "Offer") to
purchase any of the shares of Common Stock owned by it (the "Offered Shares")
for cash, notes or Public Equity Securities, or a combination thereof, that
Stockholder (the "Offering Stockholder") shall first offer in writing (a
"Sale Notice") to sell the Offered Shares to those Initial Stockholders not
selling Offered Shares and the Corporation (collectively, the "Offerees") on
the same terms and conditions as are contained in the Offer; provided,
however, that the date for consummation of such sale to the Offerees (the
"Offeree Closing Date") shall be no less than 20 nor more than 30 days after
the date of receipt of the Sale Notice by the Offerees; and provided further,
that such Offeree shall be entitled to substitute any combination of cash and
Public Equity Securities for the cash and Public Equity Securities components
of the Offer so long as on the Offeree Closing Date the total consideration
in the form of cash and Public Equity Securities offered by such Offerees is
equal to the total consideration in the form of cash and Public Equity
Securities in the Offer. Each Offeree shall have the right to purchase all
(but not less than all) of the Offered Shares and shall exercise such right
by tendering written notice thereof to the Offering Stockholder within
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30 days of receipt of the Sale Notice. If more than one Offeree exercises
its right to purchase the Offered Shares (each, a "Purchaser"), each such
Purchaser shall be entitled to purchase Offered Shares in the following
priority: (x) first, to the Offerees that are Initial Stockholders, each of
whom shall be entitled to purchase the number of the Offered Shares which
bears the same relationship to the total number of Offered Shares as the
number of shares of Common Stock owned by such Initial Stockholder bears to
the total number of shares of Common Stock owned by all of the Offerees that
are Initial Stockholders, and (y) second, to the Corporation, to the extent
that the Initial Stockholders do not elect to purchase all of the Offered
Shares.
To the extent that either the Initial Stockholders or the Corporation
do not purchase the Offered Shares on or before the Offeree Closing Date,
then the Offering Stockholder may sell such unpurchased Offered Shares as
above provided to the third party pursuant to the Offer at any time within
three months after the expiration of the 30 day period provided above, but
only on terms and conditions no less favorable to the Offering Stockholder
than those specified in the Offer.
C. For purposes of Subsection B above, all offers to the Offerees by
the Offering Stockholder shall state the entire terms of such offer,
including, without limitation, purchase price, form of consideration and
financing terms and shall include a copy of the Offer made by the third party.
D. In the event that any shares of Common Stock owned by any
Stockholder who is a party hereto shall be sold upon execution sale or shall
otherwise be transferred pursuant to legal process or shall be transferred
pursuant to an agreement entered into in connection with a divorce or
separation between the beneficial owner of such shares and such person's
spouse, or any arrangement with creditors of any Stockholder, the beneficial
owner of shares of Common Stock held by such Stockholder or the Corporation
or any other legal proceeding, the other Stockholders and the Corporation, in
accordance with the procedures established in Section B above, shall have an
option to purchase the shares so sold or transferred from the transferee at
the same price paid by the transferee for such shares by written notice given
to the transferee for such shares, by written notice given to such transferee
within 30 days after the execution sale or such other transfer. In the event
that no price is paid by the transferee, the other Stockholders and the
Corporation shall have the option to purchase such shares, in accordance with
the procedures established in Section B above, at the appraised fair market
value of such shares, as determined by an independent appraiser of recognized
standing selected by the Corporation. Until the expiration of the 30-day
period referred to above, such transferee shall be obligated to vote the
shares of Common Stock transferred to it in accordance with the terms of this
Restated Agreement.
E. Nothing in this Section shall prohibit the transfer of shares, (1)
on the death of the settlor of any Stockholder, (a) by his will or
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other instrument disposing of his property on death (including an instrument
creating any Stockholder), (b) pursuant to the laws of descent and
distribution applicable to his estate, (2) by any Stockholder to its settlor
(identified in the instrument creating the Stockholder, as in effect on the
date hereof) or to any one or more of the lineal descendants of such settlor,
or to any trust for the exclusive benefit of any such lineal descendants;
provided, that any such transfer in trust shall not be prohibited solely
because the terms of such trust provide a remainder interest to or for the
benefit of one or more persons who is not a lineal descendant of the settlor,
so long as such interest is payable only in the event that neither such
settlor nor any such lineal descendant of the settlor is then living or (3)
in connection with a registered offering of shares of Common Stock by any
Stockholder pursuant to the Registration Rights Agreement dated August __,
1996 among the Stockholders and the Corporation. Any successor or transferee
who receives shares pursuant to an event described in clause (1) or (2) above
shall, as a condition of such transfer, enter into an agreement to be bound
by the provisions of this Restated Agreement in its entirety, shall be deemed
to be a "Stockholder" hereunder and, for purposes of this subsection, if an
individual, shall be deemed to be the "settlor of a Stockholder."
5. ARBITRATION OF DISPUTES
Any controversy or claim arising out of or relating to this Restated
Agreement or the breach thereof shall be settled by submission to binding
arbitration at the request of any party to such controversy or claim. In
such event, arbitration shall be conducted before a single Primary Arbitrator
in the State of California, County of Los Angeles. Such Primary Arbitrator
shall be selected by a panel of three arbitrators. Each of the Initial
Stockholders shall be entitled to select one member of such panel of
arbitrators who is reasonably acceptable to the other Stockholders. If the
Stockholders are unable to agree on all the members of such panel of
arbitrators, then the remaining arbitrators shall be selected by an
administrator of the Judicial Arbitration and Mediation Services, Inc. from
its panel of retired judges. The Primary Arbitrator shall conduct such
arbitration in accordance with the rules established by the panel of
arbitrators. Judgment may be entered on the arbitrator's award in any court
having jurisdiction. To the extent necessary to obtain any provisional
relief of any dispute or controversy or clam arising under or in connection
with this Restated Agreement, the parties hereto expressly consent to the
jurisdiction of the state courts located in the State of California, County
of Los Angeles, and consent that any service of process therefor may be made
by personal service upon the parties hereto wherever each may be located, or
by certified or registered mail directed to the parties hereto at each such
party's respective address as set forth in Section 13 hereof.
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6. BENEFIT
Except upon the occurrence of a termination event as provided in
Section 1, this Restated Agreement shall be binding upon and shall operate
for the benefit of the parties hereto, their respective successors and
assigns.
7. INVALIDITY OF ANY PROVISION
The invalidity or unenforceability of any provision of this Restated
Agreement shall not affect the other provisions hereof, and the Restated
Agreement shall be construed in all respects as if such invalid or
unenforceable provisions were omitted, provided that the parties shall
negotiate in good faith to replace the invalid provision with a valid
provision reflecting the same balance of economic interests.
8. MODIFICATION OF AGREEMENT
No modification, amendment or waiver of any of the provisions of this
Restated Agreement shall be valid unless made in writing and signed by the
Corporation and each Stockholder or other party subject to this Restated
Agreement from time to time.
9. FURTHER ACTION
A. The Corporation shall not register, and shall instruct any transfer
agent for the Common Stock not to register, on the books of the Corporation
any transfer, pledge or encumbrance of any shares of Common Stock subject to
this Agreement, unless such transfer, pledge or encumbrance complies with
terms of this Agreement and the Stockholders agree to provide the Corporation
(or any such transfer agent) with such documents, including an opinion of
counsel as to compliance with the terms of this Restated Agreement, as the
Corporation (or any such transfer agent) may reasonably request.
B. A copy of this Restated Agreement shall be made a part of the
minutes of the Corporation.
10. ATTORNEY'S FEES AND COSTS
If any action at law or in equity (including any arbitration proceeding
under Section 5 above) is necessary to enforce or interpret the terms of this
Restated Agreement, the prevailing party shall be entitled to reasonable
attorneys' fees, costs, and necessary disbursements, in addition to any other
relief to which he may be entitled.
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11. APPLICABLE LAW
This Restated Agreement shall be construed in accordance with the laws
of the State of Delaware.
12. ENTIRE AGREEMENT
This Restated Agreement supersedes all agreements as to the subject
matter hereof among the Stockholders and the Corporation including in each
case amendments thereto, previously executed by the Stockholders and the
Corporation. This Restated Agreement sets forth all of the provisions,
covenants, agreements, conditions and undertakings between the parties hereto
with respect to the subject matter hereof, and supersedes all prior and
contemporaneous agreements and understandings express or implied, oral or
written as to the subject matter hereof.
13. NOTICES
Unless otherwise specified herein, all notices, requests, demands and
other communications to be given under this Restated Agreement shall be in
writing and shall be deemed given if (i) delivered in person, or by United
States mail, certified or registered, with return receipt requested, (ii) if
sent by telex or facsimile transmission, with a copy mailed on the same day
in the manner provided in (i) above, when transmitted and receipt is
confirmed by telephone, or (iii) if otherwise actually delivered:
TO THE CORPORATION: 1444 South Alameda Street, Los Angeles,
California 90021, with copies to each Director
and each Stockholder as their names and
addresses appear on the records of the
Corporation;
TO ANY STOCKHOLDER: As the name and address of such Stockholder
appears on the record of stockholders of the
Corporation;
or at such other address as may have been furnished by such person in writing
to the other parties. Any such notice, demand or other communication shall
be deemed to have been given on the date actually delivered or as of the date
mailed, as the case may be.
[Signature pages follow]
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IN WITNESS WHEREOF, the undersigned have caused this Restated Agreement
to be executed as of the date first hereinabove written.
GUESS ?, INC.
By:
Name:
Title:
STOCKHOLDERS
MAURICE MARCIANO TRUST
(1995 RESTATEMENT)
By:
Maurice Marciano
Trustee
PAUL MARCIANO TRUST
DATED FEBRUARY 20, 1986
By:
Paul Marciano
Trustee
ARMAND MARCIANO TRUST
DATED FEBRUARY 20, 1986
By:
Armand Marciano
Trustee
MAURICE MARCIANO 1996 GRANTOR RETAINED
ANNUITY TRUST
By:
Paul Marciano
Co-Trustee
By:
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Gary W. Hamper
Co-Trustee
PAUL MARCIANO 1996 GRANTOR RETAINED
ANNUITY TRUST
By:
Maurice Marciano
Co-Trustee
By:
Joseph H. Sugarman
Co-Trustee
ARMAND MARCIANO 1996 GRANTOR RETAINED
ANNUITY TRUST
By:
Maurice Marciano
Co-Trustee
By:
Marc E. Petas
Co-Trustee
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