*10.29. Indemnification Agreement among the Registrant and certain
stockholders of the Registrant.
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INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT (the "Agreement"), dated as of August 7,
1996, among the following parties (the "Parties"): Guess ?, Inc., a Delaware
corporation (the "Company"), the stockholders of the Company indicated on the
signature pages hereto (such stockholders being referred to herein,
collectively, as the "Principal Stockholders").
R E C I T A L S
WHEREAS, the Parties, together with Merrill Lynch, Pierce, Fenner &
Smith Incorporated and Morgan Stanley & Co. Incorporated, as representatives
of the U.S. Underwriters named therein (the "U.S. Underwriters"), are parties
to a U.S. Purchase Agreement of even date herewith (the "U.S. Purchase
Agreement") and, together with Merrill Lynch International and Morgan Stanley
& Co. International Limited, as representatives of the Managers named therein
(the "Managers"), are parties to an International Purchase Agreement of even
date herewith (the "International Purchase Agreement," and, together with the
U.S. Purchase Agreement, being referred to herein, collectively, as the
"Purchase Agreements");
WHEREAS, pursuant to the terms of the Purchase Agreements, the
Principal Stockholders may be required to indemnify the U.S. Underwriters or
the Managers (as the case may be) with respect to, or contribute to, certain
liabilities arising out of the offering of the common stock of the Company,
par value $.01 per share, contemplated by the Purchase Agreements;
WHEREAS, the Company wishes to indemnify and advance expenses to the
Principal Stockholders in connection with any proceedings and liabilities
arising from the obligation of the Principal Stockholders under the Purchase
Agreements in the manner provided for herein.
NOW, THEREFORE, in consideration of the foregoing recitals, the
agreements contained herein and other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, the Parties hereby
agree as follows:
Section 1. Indemnification and Advancement of Expenses. In respect
of any proceeding by any Indemnified Party (as defined in the U.S. Purchase
Agreement or the International Purchase Agreement, as the case may be)
against a Principal Stockholder in respect of (i) any breach of a
representation or warranty contained in Section 1 of each of the Purchase
Agreements and (ii) indemnification under Section 6 or contribution under
Section 7 of each of the Purchase Agreements:
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(a) Subject to the provisions of paragraph (b) of this Section 1,
(i) the Company agrees to advance the reasonable expenses
incurred by such Principal Stockholder in respect of such proceeding
including those incurred by such Principal Stockholder for separate
counsel and to reimburse any such reasonable expenses not advanced by
the Company in the first instance;
(ii) the Company agrees to indemnify such Principal Stockholder
in respect of any liability incurred in or as a result of such
proceeding; and
(iii) the authorization by the Company's stockholders of the
agreement to indemnify contained herein and the execution of this
Agreement constitute a conclusive determination that indemnification is
due to such Principal Stockholder in such circumstances and the specific
stockholder authorization for such indemnification.
(b) The Company shall not indemnify such Principal Stockholder from or
on account of:
(i) such stockholder's acts or omissions finally adjudged to
be intentional misconduct or a knowing violation of law;
(ii) such stockholder's conduct finally adjudged to be in
violation of Section 174 of the General Corporation Law of the State of
Delaware; or
(iii) any transaction with respect to which it was finally
adjudged that such stockholder personally received a benefit in money,
property, or services to which such stockholder was not legally entitled.
Section 2. Successors and Assigns. This Agreement and all
obligations, rights and remedies of the Parties hereunder shall be binding
upon and inure to the benefit of their respective legal representatives,
successors and assigns.
Section 3. Entire Agreement. Each of the Parties acknowledge that
there are no other agreements or representations, either oral or written,
express or implied, not embodied or referenced in this Agreement, which
represents a complete integration of all prior and contemporaneous agreements
and understandings of the parties hereto with respect to the subject matter
hereof.
Section 4. Governing Law. This agreement shall be construed in
accordance with the laws of the State of New York, without regard to the
choice of law rules thereof, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
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Section 5. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, and all
of which together shall constitute one and the same instrument.
[Signature pages follow]
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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
Title: Executive Vice President and Chief
Financial Officer
MAURICE MARCIANO TRUST
(1995 RESTATEMENT)
By: /s/ MAURICE MARCIANO
Maurice Marciano
Trustee
PAUL MARCIANO TRUST
UNDER TRUST DATED FEBRUARY 20, 1986
By: /s/ PAUL MARCIANO
Paul Marciano
Trustee
ARMAND MARCIANO TRUST
UNDER TRUST DATED FEBRUARY 20, 1986
By: /s/ ARMAND MARCIANO
Armand Marciano
Trustee
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