EXHIBIT 10.31. First Amendment to Amended and Restated Shareholders' Agreement
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FIRST AMENDMENT TO
AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT
(this "First Amendment") is entered into as of March 31, 1997 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,
Armand Marciano, as Trustee of the Armand Marciano Trust dated February 20,
1986, the Maurice Marciano 1996 Grantor Retained Annuity Trust, the Paul
Marciano 1996 Trust (collectively, the "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 Stockholders and the Corporation are parties to an
Amended and Restated Shareholders' Agreement dated as of August 8, 1996 (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 amend the
Shareholders' Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants set forth herein, the parties hereto as follows:
Section 1. Amendments to Shareholders' Agreement. The Shareholders'
Agreement is hereby amended as follows:
(a) Legends on Certificates. The legend set forth in Section 3 of
the Shareholders' Agreement is hereby amended to read in its entirety as
follows:
"'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 (as the same may be amended, modified or
supplemented from time to time), which is on file at the office of the
issuer.'"
(b) Restrictions on Disposition. Section 4(E) of the Shareholders'
Agreement is hereby amended to read in its entirety as follows:
"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
other instrument disposing of his property on death (including an instrument
creating any Stockholder) or (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 the date on which such Stockholder becomes a party hereto, as the case
may be), or to any trust created by such settlor for the principal benefit of
(a) such settler or (b) such settlor and one or more of such
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settlor's lineal descendants, (3) by any Stockholder to any one or more of the
lineal descendants of the settlor (identified in the instrument creating the
Stockholder, as in effect on the date hereof or the date on which such
Stockholder becomes a party hereto, as the case may be) of such Stockholder, 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 (4) in connection with a registered
offering of shares of Common Stock by any Stockholder pursuant to the
Registration Rights Agreement dated as of August 1, 1996 among the Stockholders
and the Corporation. Any successor or transferee who receives shares pursuant
to an event described in clause (1), (2) or (3) 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.'"
Section 2. References to and Effect on Shareholders' Agreement. (a)
Upon the effectiveness of this First Amendment, on and after the date hereof,
each reference in the Shareholders' Agreement to "this Restated Agreement",
"this Agreement", "hereunder", "hereof", "herein," or words of like import
referring to the Shareholders' Agreement shall mean and be a reference to the
Shareholders' Agreement as amended hereby.
(b) Except as specifically amended above, the Shareholders' Agreement
is and shall continue to be in full force and effect and is hereby in all
respects ratified and confirmed.
Section 3. Effectiveness. This First Amendment shall become
effective when executed by each of the parties hereto.
Section 4. Invalidity of any Provision. The invalidity or
unenforceability of any provision of this First Amendment shall not affect the
other provisions hereof, and the First Amendment 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.
Section 5. Further Action. A copy of this First Amendment shall be
made a part of the minutes of the Corporation.
Section 6. Applicable Law. This First Amendment shall be construed
in accordance with the laws of the State of Delaware.
Section 7. Entire Agreement. This First Amendment and the
Shareholders' Agreement supersede all agreements as to the subject matter hereof
and thereof among the Stockholders and the Corporation, including in each case
amendments to the Shareholders' Agreement executed by the Stockholders and the
Corporation prior to the date hereof. This First Amendment and the
Shareholders' Agreement set forth all of the provisions, covenants, agreements,
conditions and undertakings between the parties hereto
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with respect to the subject matter hereof, and supersede all prior and
contemporaneous agreements and understandings express or implied, oral or
written as to the subject matter hereof.
[Signature pages follow]
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IN WITNESS WHEREOF, the undersigned have caused this First Amendment
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
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MAURICE MARCIANO 1996 GRANTOR
RETAINED ANNUITY TRUST
By:
Paul Marciano
Co-Trustee
By:
Gary W. Hampar
Co-Trustee
PAUL MARCIANO 1996 GRANTOR
RETAINED ANNUITY TRUST
By:
Maurice Marciano
Co-Trustee
By:
Joseph H. Sugerman
Co-Trustee
ARMAND MARCIANO 1996 GRANTOR
RETAINED ANNUITY TRUST
By:
Maurice Marciano
Co-Trustee
By:
Marc E. Petas
Co-Trustee
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