As filed with the Securities and Exchange Commission on August 13, 1996
Registration No. 333-_______________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
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GUESS ?, INC.
(Exact name of Registrant as specified in its charter)
Delaware 95-3679695
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1444 South Alameda Street
Los Angeles, California 90021
(Address of Principal Executive Offices)
Guess ?, Inc.
1996 Equity Incentive Plan
and
Guess ?, Inc.
1996 Non-Employee Directors' Stock Option Plan
(Full title of the plans)
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ROGER A. WILLIAMS
Chief Financial Officer
Guess ?, Inc.
1444 South Alameda Street
Los Angeles, California 90021
(Name and address of agent for service)
(213) 765-3100
(Telephone number, including area code, of agent for service)
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<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
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Title of Amount Proposed Maximum Proposed Maximum Amount of
Securities to be to be Offering Price Per Aggregate Registration
Registered Registered Share(*) Offering Price(*) Fee
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<S> <C> <C> <C> <C>
Common Stock 5,000,000 $ 18.00 $90,000,000 $ 31,034.48
par value $.01 per share
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</TABLE>
* The price shown is the average of the high and low prices of the Common
Stock on the New York Stock Exchange consolidated reporting system on
August 7, 1996, in accordance with Rule 457(c), and is being utilized
solely for the purpose of calculating the registration fee.
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2
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
- --------------------
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act, and the "Note" to Part I of Form S-8.
<PAGE>
3
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference in this
Registration Statement:
(a) the prospectus included in the Registrant's Registration Statement
on Form S-1, as amended (File No. 333-4419);
(b) the description of the Registrant's common stock, par value $.01
per share, contained in the Registrant's Registration Statement on Form 8-A
(File No. 1-11893) for registration of such common stock under the
Securities Exchange Act of 1934, as amended (the "Exchange Act");
(c) the Registrant's annual report on Form 10-K for the fiscal year
ended December 31, 1995;
(d) the Registrant's quarterly report on Form 10-Q for the quarterly
period ended March 31, 1996.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in the Registration Statement and to be part
thereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Pursuant to Section 145 of the General Corporation Law of
Delaware (the "Delaware Corporation Law"), Article VI of the Restated
Bylaws of the
<PAGE>
4
Registrant, provides that the Registrant shall indemnify any person in
connection with the defense or settlement of any threatened, pending
or completed legal proceeding (other than a legal proceeding by or in
the right of the Registrant) by reason of the fact that he is or was a
director or officer of the Registrant or is or was a director or
officer of the Registrant serving at the request of the Registrant as
a director, officer, employee or agent of another corporation,
partnership or other enterprise against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred in connection with the defense or settlement of
such legal proceeding if he acted in good faith and in a manner that
he reasonably believed to be in or not opposed to the best interests
of the Registrant, and, with respect to any criminal action or
proceeding, if he had no reasonable cause to believe that his conduct
was unlawful. If the legal proceeding, however, is by or in the right
of the Registrant, the director or officer may be indemnified by the
Registrant against expenses (including attorneys' fees) actually and
reasonably incurred in connection with the defense or settlement of
such legal proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of
the Registrant and except that he may not be indemnified in respect of
any claim, issue or matter as to which he shall have been adjudged to
be liable to the Registrant unless a court determines otherwise.
Article VI of the Registrant's Bylaws allows the Registrant to
maintain director and officer liability insurance on behalf of any
person who is or was a director or officer of the Registrant or such
person who serves or served as director, officer, agent, or employee,
at another corporation, partnership or other enterprise at the request
of the Registrant.
Pursuant to Section 102(b)(7) of the Delaware Corporation Law,
Article Fifth of the Restated Certificate of Incorporation of the
Registrant provides that no director of the Registrant shall be
personally liable to the Registrant or its stockholders for monetary
damages for any breach of his fiduciary duty as a director; provided,
however, that such clause shall not apply to any liability of a
director (1) for any breach of his duty of loyalty to the Registrant
or its stockholders, (2) for acts or omissions that are not in good
faith or involve intentional misconduct or a knowing violation of the
law, (3) under Section 174 of the Delaware Corporation Law, or (4) for
any transaction from which the director derived an improper personal
benefit. The aforesaid provision also eliminates the liability of any
stockholder for managerial acts or omissions, pursuant to Section 350
of the Delaware Corporation Law of any other provision of Delaware
law, to the same extent that such liability is limited for a director.
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5
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration
Statement:
3.1 Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.1 to the Registrant's
Registration Statement on Form S-1 (File No. 333-4419))
3.2 Restated Bylaws of the Registrant (incorporated by reference to
Exhibit 3.2 to the Registrant's Registration Statement on Form
S-1 (File No. 333-4419))
4.1 1996 Equity Incentive Plan (incorporated by reference to Exhibit
10.21 to the Registrant's Registration Statement on Form S-1
(File No. 333-4419))
4.2 1996 Non-Employee Directors' Stock Option Plan (incorporated by
reference to Exhibit 10.22 to the Registrant's Registration
Statement on Form S-1 (File No. 333-4419))
5.1 Opinion of Shearman & Sterling re legality of common stock being
registered
23.1 Consent of KPMG Peat Marwick LLP, independent certified public
accountants
23.2 Consent of Shearman & Sterling (included in Exhibit 5.1)
24 Powers of Attorney (included on signature page)
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include
any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change
to such information in the Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and
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6
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby further undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Los Angeles, State of California, on the 13th
day of August, 1996.
GUESS ?, INC.
By: /s/ Maurice Marciano
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Name: Maurice Marciano
Title: Chief Executive Officer
POWER OF ATTORNEY
Each of the undersigned whose signature appears below hereby
constitutes and appoints Maurice Marciano, Paul Marciano and Roger A. Williams,
and each of them acting alone, his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities to sign any and all amendments
(including post-effective amendments) and supplements to this Registration
Statement and any and all related registration statements necessary to register
additional securities, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
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8
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities indicated capacities on August 13, 1996.
Signature Title
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/s/ Maurice Marciano Chairman of the Board, Chief Executive Office
- ------------------------------ and Director (Principal Executive Officer)
Maurice Marciano
/s/ Paul Marciano President, Chief Operating Officer and Director
- ------------------------------
Paul Marciano
/s/ Armand Marciano Senior Executive Vice President, Secretary and
- ------------------------------ Director
Armand Marciano
/s/ Roger A. Williams Chief Financial Officer (Principal Financial
- ------------------------------ and Accounting Officer
Roger A. Williams
<PAGE>
Exhibit Index
Exhibit No. Description of Document
3.1 Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.1 to the Registrant's
Registration Statement on Form S-1 (File No. 333-4419)
3.2 Restated Bylaws of the Registrant(incorporated by reference to
Exhibit 3.2 to the Registrant's Registration Statement on Form
S-1 (File No. 333-4419)
4.1 1996 Equity Incentive Plan (incorporated by reference to Exhibit
10.21 to the Registrant's Registration Statement on Form S-1
(File No. 333-4419))
4.2 1996 Non-Employee Directors' Stock Option Plan (incorporated
by reference to Exhibit 10.22 to the Registrant's Registration
Statement on Form S-1 (File No. 333-4419))
5.1 Opinion of Shearman & Sterling re legality of common stock
being registered
23.1 Consent of KPMG Peat Marwick LLP, independent certified
public accountants
23.2 Consent of Shearman & Sterling (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
August 13, 1996
Guess?, Inc.
1444 South Alameda Street
Los Angeles, CA 90021
Ladies and Gentlemen:
We have acted as counsel for Guess?, Inc., a Delaware corporation (the
"Company"), in connection with the Registration Statement on Form S-8 (the
"Registration Statement") of the Company filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to approximately 5,000,000 shares (the "Shares") of common stock,
par value $.01 per share, of the Company (the "Common Stock"), to be issued from
time to time pursuant to the Company's 1996 Equity Incentive Plan and 1996
Non-Employee Directors' Stock Option Plan (each, a "Plan").
In so acting, we have examined the Registration Statement and we have
also examined and relied as to factual matters upon the representations and
warranties contained in originals, or copies certified or otherwise identified
to our satisfaction, of such documents, records, certificates and other
instruments as in our judgment are necessary or appropriate to enable us to
render the opinion expressed below. In such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents, certificates
and instruments submitted to us as originals and the conformity with originals
of all documents submitted to us as copies.
The opinion expressed below is limited to the law of the State of New
York, the General Corporation Law of Delaware and the federal law of the United
States, and we do not express any opinion herein concerning any other law.
Based upon the foregoing and having regard for such legal
considerations as we have deemed relevant, we are of the opinion that the Shares
have been duly authorized by the Company and, when (a) issued and delivered by
the Company in accordance with the terms of the relevant Plan and (b) paid for
in full in accordance with the terms of the relevant Plan, the Shares will be
validly issued, fully paid and non-assessable.
<PAGE>
Guess?, Inc. 2 August 13, 1996
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Shearman & Sterling
Exhibit 23.1
Independent Auditors' Consent
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The Board of Directors
Guess?, Inc.:
We consent to incorporation by reference in the registration statement on Form
S-8 of Guess?, Inc. of our report dated March 1, 1996, relating to the
consolidated balance sheets of Guess?, Inc. and Subsidiary as of December 31,
1995, and 1994, and the related consolidated statements of earnings,
stockholders' equity, and cash flows for each of the years in the three-year
period ended December 31, 1995 and the related schedule, which report appears in
the December 31, 1995, annual report on Form 10-K of Guess?, Inc.
/s/ KPMG Peat Marwick LLP
Los Angeles, California
August 12, 1996
