*10.28. Registration Rights Agreement among the Registrant and certain
stockholders of the Registrant.
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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.
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"Commission" shall mean the United States Securities and Exchange
Commission and any successor agency thereto.
"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).
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"Securities Act" shall have the meaning specified in the third
Recital.
"Shelf Registration" shall have the meaning specified in Section
2(b)(i).
"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
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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 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
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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
(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.
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(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.
(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.
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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
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
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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 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
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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;
(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
9
"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.
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.
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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 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
11
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.
(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
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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
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
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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)
(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.
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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.
[Signature pages follow]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
GUESS ?, INC.
By: /s/ ROGER A. WILLIAMS
Name: Roger A. Williams
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Title: Executive Vice President and
Chief Financial Officer
1444 South Alameda Street
Los Angeles, California 90021
14,480,153 shares of Common Stock MAURICE MARCIANO TRUST
(1995 RESTATEMENT)
By: /s/ MAURICE MARCIANO
Maurice Marciano
Trustee
c/o Guess ?, Inc.
1444 South Alameda Street
Los Angeles, California 90021
11,633,149 shares of Common Stock PAUL MARCIANO TRUST
DATED FEBRUARY 20, 1986
By: /s/ PAUL MARCIANO
Paul Marciano
Trustee
c/o Guess ?, Inc.
1444 South Alameda Street
Los Angeles, California 90021
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5,913,437 shares of Common Stock ARMAND MARCIANO TRUST
DATED FEBRUARY 20, 1986
By: /s/ ARMAND MARCIANO
Armand Marciano
Trustee
c/o Guess ?, Inc.
1444 South Alameda Street
Los Angeles, California 90021
1,728,276 shares of Common Stock MAURICE MARCIANO 1996 GRANTOR
RETAINED ANNUITY TRUST
By: /s/ PAUL MARCIANO
Paul Marciano
Co-Trustee
By: /s/ GARY W. HAMPAR
Gary W. Hampar
Co-Trustee
c/o Guess ?, Inc.
1444 South Alameda Street
Los Angeles, California 90021
1,212,149 shares of Common Stock PAUL MARCIANO 1996 GRANTOR
RETAINED ANNUITY TRUST
By: /s/ MAURICE MARCIANO
Maurice Marciano
Co-Trustee
By: /s/ JOSEPH H. SUGERMAN
Joseph H. Sugerman
Co-Trustee
c/o Guess ?, Inc.
1444 South Alameda Street
Los Angeles, California 90021
714,655 shares of Common Stock ARMAND MARCIANO 1996 GRANTOR
RETAINED ANNUITY TRUST
By: /s/ MAURICE MARCIANO
Maurice Marciano
Co-Trustee
By: /s/ MARC E. PETAS
17
Marc E. Petas
Co-Trustee
c/o Guess ?, Inc.
1444 South Alameda Street
Los Angeles, California 90021
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