AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 21, 1997
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM S-3
REGISTRATION STATEMENT
under
The Securities Act of 1933
GUESS ?, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 2345 95-3679695
(State or other (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Identification No.)
incorporation or Classification Code
organization) Number)
1444 SOUTH ALAMEDA STREET
LOS ANGELES, CALIFORNIA 90021
(213) 765-3100
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
GLENN A. WEINMAN
GENERAL COUNSEL
GUESS ?, INC.
1444 SOUTH ALAMEDA STREET
LOS ANGELES, CALIFORNIA 90021
(213) 765-3100
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
JEFFREY H. COHEN, ESQ. CHRISTOPHER A. SEEGER, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & WEISSMAN & SEEGER
FLOM LLP 575 LEXINGTON AVENUE, 31ST FLOOR
300 SOUTH GRAND AVENUE, NEW YORK, NEW YORK 10022
SUITE 3400
LOS ANGELES, CALIFORNIA 90071
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE
SECURITIES TO THE PUBLIC:
FROM TIME TO TIME AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
If the only securities being registered on this Form are
being offered pursuant to dividend or interest reinvestment
plans, please check the following box. ( )
If any of the securities being registered on this Form are
to be offered on a delayed or continuous basis pursuant to Rule
415 under the Securities Act of 1933, check the following box. (X)
If this Form is filed to register additional securities for
an offering pursuant to Rule 462(b), under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same offering. ( )
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. ( )
If delivery of prospectus is expected to be made pursuant to
Rule 434, please check the following box. ( )
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================
PROPOSED
MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED PER UNIT (1) OFFERING PRICE (1) REGISTRATION FEE
====================================================================================================
<S> <C> <C> <C> <C> <C>
Common Stock, $0.01 par value . 216,216 $9.375 $2,027,025 $615
</TABLE>
(1) Estimated solely for the purpose of calculating the
registration fee in accordance with Rule 457(c) and based on the
average of the high and low prices on October 17, 1997 as
reported on the New York Stock Exchange.
_____________________
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION
STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS
EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER
AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE
REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS
THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY
DETERMINE.
PROSPECTUS
216,216 Shares
GUESS ?, INC.
Common Stock
___________
All of the 216,216 shares (the "Offered Shares") of Common
Stock, par value $.01 per share (the "Common Stock"), of Guess ?,
Inc., a Delaware corporation (the "Company" or "Guess"), offered
hereby being offered by the Selling Stockholder (as defined).
See "The Selling Stockholder." The Common Stock is traded on the
New York Stock Exchange (the "NYSE") under the symbol "GES."
The Offered Shares have been listed on the NYSE.
The Company will not receive any proceeds from the sale of
the Offered Shares.
The Offered Shares will be sold either directly by the
Selling Stockholder, or by persons who became a Holder (as such
term is defined in the Registration Rights Agreement (as
defined)), or through underwriters, brokers, dealers or agents.
At the time any particular offer of Offered Shares is made, if
and to the extent required, the specific number of Offered Shares
offered, the offering price and the other terms of the offering,
including the names of any underwriters, brokers, dealers or
agents involved in the offering and the compensation, if any, of
such underwriters, brokers, dealers or agents, will be set forth
in a supplement to this Prospectus (a "Prospectus Supplement").
Any statement contained in this Prospectus will be deemed to be
modified or superseded by any inconsistent statement contained in
any Prospectus Supplement delivered herewith.
SEE "RISK FACTORS" BEGINNING ON PAGE 2 FOR A DISCUSSION OF
CERTAIN FACTORS THAT SHOULD BE CONSIDERED BY PROSPECTIVE
PURCHASERS OF THE OFFERED SHARES.
___________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION, NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
___________
The date of this Prospectus is October 21, 1997.
THE COMPANY
Guess ?, Inc. (the "Company" or "Guess"), founded in 1981 by
the Marciano brothers, designs, markets, distributes and licenses
one of the world's leading lifestyle collections of casual
apparel, accessories and related consumer products. The Company's
apparel for men and women is marketed under numerous trademarks,
including Guess, Guess?, Guess U.S.A., Guess? and Triangle Design
and Guess Collection. The lines include full collections of denim
and cotton clothing, including jeans, pants, overalls, skirts,
dresses, shorts, blouses, shirts, jackets and knitwear. In
addition, the Company has granted licenses to manufacture and
distribute a broad range of products that complement the
Company's apparel lines, including watches, clothing for infants
and children, eyewear, footwear, activewear, home products and
other fashion accessories. The Company derives its net revenues
from the sale of Guess men's and women's apparel worldwide to
wholesale customers and distributors, from the sale of Guess
men's and women's apparel and its licensees' products through the
Company's network of retail and factory outlet stores located
primarily in the United States and from net royalties from
worldwide licensing activities. The Company generates net
revenue from wholesale and retail operations and licensing
activities. The Company's executive offices are located at 1444
South Alameda Street, Los Angeles, California 90021 and its
telephone number is (213) 765-3100.
RISK FACTORS
PROSPECTIVE PURCHASERS OF THE OFFERED SHARES SHOULD CONSIDER
CAREFULLY THE FACTORS SET FORTH BELOW, AS WELL AS ALL OF THE
OTHER INFORMATION SET FORTH IN THIS PROSPECTUS AND IN THE
DOCUMENTS INCORPORATED HEREIN BY REFERENCE, IN EVALUATING AN
INVESTMENT IN THE COMMON STOCK. THIS PROSPECTUS AND THE DOCUMENTS
INCORPORATED HEREBY BY REFERENCE CONTAIN FORWARD-LOOKING
STATEMENTS WHICH INVOLVE RISKS AND UNCERTAINTIES. THE COMPANY'S
ACTUAL RESULTS AND THE TIMING OF CERTAIN EVENTS COULD DIFFER
MATERIALLY FROM THOSE ANTICIPATED BY SUCH FORWARD-LOOKING
STATEMENTS AS A RESULT OF CERTAIN FACTORS DISCUSSED IN THIS
PROSPECTUS AND THE DOCUMENTS INCORPORATED HEREIN BY REFERENCE,
INCLUDING THE FACTORS SET FORTH BELOW AND IN "MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS" AND "BUSINESS" IN THE DOCUMENTS INCORPORATED HEREIN
BY REFERENCE, AS WELL AS THOSE DISCUSSED ELSEWHERE IN THIS
PROSPECTUS AND THE DOCUMENTS INCORPORATED HEREIN BY REFERENCE.
COMPETITION AND OTHER FACTORS AFFECTING THE APPAREL AND RETAILING
INDUSTRIES
The apparel industry is highly competitive and fragmented
and is subject to rapidly changing consumer demands and
preferences. The Company believes that its success depends in
large part upon its ability to anticipate, gauge and respond to
changing consumer demands and fashion trends in a timely manner
and upon the continued appeal to consumers of the Guess image.
Failure by the Company to identify and respond appropriately to
changing consumer demands and fashion trends could adversely
affect consumer acceptance of Guess products and may have a
material adverse effect on the Company's financial condition and
results of operations. Guess competes with numerous apparel
manufacturers and distributors and several well-known designers
which have recently entered or re-entered the designer denim
market, some of whom offer products generally priced lower than
the Company's designer jeans products. Guess's retail and factory
outlet stores face competition from other retailers.
Additionally, the Company encounters substantial competition from
department stores, including some of the Company's major
wholesale customers. Many of the Company's competitors have
greater financial resources than Guess. The Company's licensed
apparel and accessories also compete with a substantial number of
designer and non-designer lines and various other well-known
brands. Although the level and nature of competition differ among
its product categories, Guess believes that it competes primarily
on the basis of its brand image, quality of design, workmanship
and product assortment. Increased competition by existing and
future competitors could result in reductions in sales or prices
of Guess products that could have a material adverse effect on
the Company's financial condition and results of operations. In
addition, the apparel industry historically has been subject to
substantial cyclical variations, and a recession in the general
economy or uncertainties regarding future economic prospects that
affect consumer spending habits could have a material adverse
effect on the Company's financial condition and results of
operations.
DEPENDENCE UPON CERTAIN CUSTOMERS AND LICENSEES
The Company's department store customers include major
United States retailers. The Company's three largest customers
accounted for approximately 21.2% of net revenue in 1996. During
1996, Bloomingdale's, Macy's and other affiliated stores owned by
Federated Department Stores together accounted for approximately
8.6% of the Company's net revenue; The May Company accounted for
approximately 6.7% of the Company's net revenue; and Dillard's
stores accounted for approximately 5.9% of the Company's net
revenue. Although several of the Company's department store
customers are under common ownership, no other single customer or
group of related customers accounted for more than 8.6% of the
Company's net revenue in this period. While the Company believes
that purchasing decisions in many cases are made independently by
each department store chain under common ownership, the trend may
be toward more centralized purchasing decisions. A decision by
the controlling owner of a group of department stores or any
other significant customer to decrease the amount purchased from
the Company or to cease carrying Guess products could have a
material adverse effect on the Company's financial condition and
results of operations. The retail industry has periodically
experienced consolidation and other ownership changes. In the
future, the Company's wholesale customers may consolidate,
undergo restructurings or reorganizations, or realign these
affiliations, any of which could decrease the number of stores
that carry the Company's or its licensees' products or increase
the ownership concentration within the retail industry.
Approximately 45% of the Company's net royalties in 1996 was
derived from its top four licensed product lines, Guess Watches
(17% of 1996 net royalties), Baby Guess (11%), Guess Kids (10%)
and Guess Eyewear (7%). The Baby Guess and Guess Kids lines are
licensed to the same entity. A substantial portion of sales of
Guess brand products by its licensees are also made to the
Company's three largest customers. The inability of the Company
to control the quality, focus, image or distribution of its
licensed products could impact consumer receptivity to the
Company's products generally and, therefore, adversely affect the
Company's financial condition and results of operations.
RISKS ASSOCIATED WITH ACHIEVING AND MANAGING GROWTH
To manage growth effectively, Guess will be required to
continue to implement changes in certain aspects of its business,
continue to expand its information systems and operations to
respond to increased demand, attract and retain qualified
personnel (including management), and develop, train and manage
an increasing number of management-level and other employees.
Failure to continue to enhance operating control systems or
unexpected difficulties encountered during expansion could
adversely affect the Company's financial condition and results of
operations.
As part of its operating strategy, Guess intends to continue
to expand its network of retail stores. Factors beyond the
Company's control may affect the Company's ability to expand,
including general economic and business conditions affecting
consumer spending. The actual number and type of such stores to
be opened and their success will depend on various factors,
including the performance of the Company's wholesale and retail
operations, the acceptance by consumers of the Company's retail
concepts, the ability of the Company to manage such expansion and
hire and train personnel, the availability of desirable locations
and the negotiation of acceptable lease terms for new locations.
Certain of these factors are also beyond the Company's control.
In addition, Guess's strategy relies heavily upon its
ability to align itself with effective distributors and licensees
that are able to deliver high-quality products consistent with
the Guess brand image in a timely fashion and to successfully
integrate such distributors and licensees into its global
distribution channels. A general failure by the Company to
maintain and control its existing distribution and licensing
arrangements or to procure additional distribution and licensing
relationships could adversely affect the Company's growth
strategy, which could adversely affect the Company's financial
condition and results of operations.
The Company's strategic plan for its wholesale division
depends in part on its ability to expand its sales to
international distributors, deepen its product offerings and
expand and upgrade its shop-in-shop program. This strategy is
subject to a number of factors beyond the Company's control
including general economic conditions and changing consumer
preferences. There can be no assurance that the Company's
business strategy will be successful in halting or reversing this
decline in net revenue.
DEPENDENCE UPON KEY PERSONNEL
The success of Guess is largely dependent upon the personal
efforts and abilities of its senior management, particularly
Mr. Maurice Marciano, Chairman of the Board and Chief Executive
Officer, Mr. Paul Marciano, President and Chief Operating
Officer, and Mr. Armand Marciano, Senior Executive Vice President
and Secretary (the "Principal Executive Officers"). Maurice,
Paul and Armand Marciano beneficially own an aggregate of
approximately 82.9% of the Company's outstanding Common Stock.
Although the Company has recently recruited several key
executives with substantial industry expertise, the extended loss
of the services of one or more of the Principal Executive
Officers could have a material adverse effect on the Company's
operations. The Company does not currently have "key man"
insurance with respect to any of such individuals.
FOREIGN OPERATIONS AND SOURCING; IMPORT RESTRICTIONS
During 1996, approximately 20% of the Company's purchases of
raw materials, labor and finished goods for its apparel were made
in Hong Kong and other Asian countries; approximately 17% were
made elsewhere outside the United States; and the balance of 63%
were made in the United States, all through arrangements with
independent contractors. As part of the Company's ongoing review
of its internal manufacturing capacity, operational effectiveness
and alternative sourcing opportunities, during 1996 the Company
reduced its reliance on domestic contractors and expanded its
utilization of offshore manufacturing as a cost-effective means
to produce its products. In recent years, Guess has been
increasing its sourcing of fabrics outside of the United States.
In addition, Guess has been increasing its international sales
and, in 1996, approximately 12.1% and 6.9% of the Company's net
revenue was from product sales to customers in international
markets and from net royalties paid by international licensees,
respectively. As a result, the Company's operations may be
affected adversely by political instability resulting in the
disruption of trade with the countries in which the Company's
contractors, suppliers or customers are located, the imposition
of additional regulations relating to imports, the imposition of
additional duties, taxes and other charges on imports,
significant fluctuations in the value of the dollar against
foreign currencies or restrictions on the transfer of funds. The
inability of a contractor to ship orders in a timely manner could
cause the Company to miss the delivery date requirements of its
customers for those items, which could result in cancellation of
orders, refusal to accept deliveries or a reduction in sales
prices. Further, since Guess is unable to return merchandise to
its suppliers, it could be faced with a significant amount of
unsold merchandise, which could have a material adverse effect on
the Company's financial condition and results of operations.
Sovereignty over Hong Kong was transferred from the United
Kingdom to The People's Republic of China effective July 1, 1997.
If the business climate in Hong Kong were to experience an
adverse change as a result of the transfer, the Company believes
it could relocate its production and sourcing facilities outside
Hong Kong and replace the merchandise currently produced in Hong
Kong with merchandise produced elsewhere without a material
adverse effect on the Company's financial condition or results of
operations. Nevertheless, there can be no assurance that the
Company would be able to do so.
The Company's import operations are subject to constraints
imposed by bilateral textile agreements between the United States
and a number of foreign countries, including Hong Kong, China,
Taiwan and South Korea. These agreements, which have been
negotiated bilaterally either under the framework established by
the Arrangement Regarding International Trade in Textiles, known
as the Multifiber Agreement, or other applicable statutes, impose
quotas on the amounts and types of merchandise which may be
imported into the United States from these countries. These
agreements also allow the United States to impose restraints at
any time and on very short notice on the importation of
categories of merchandise that, under the terms of the
agreements, are not currently subject to specified limits.
Imported products are also subject to United States customs
duties which comprise a material portion of the cost of the
merchandise. A substantial increase in customs duties could have
an adverse effect on the Company's financial condition or results
of operations. The United States and the countries in which the
Company's products are produced or sold may, from time to time,
impose new quotas, duties, tariffs or other restrictions, or
adversely adjust prevailing quota, duty or tariff levels, any of
which could have a material adverse effect on the Company's
financial condition or results of operations.
DEPENDENCE ON UNAFFILIATED MANUFACTURERS
The Company does not own or operate any manufacturing
facilities other than cutting, silk-screen and embroidery
machinery and is therefore dependent upon independent contractors
for the manufacture of its products. The Company's products are
manufactured to its specifications by both domestic and
international manufacturers. The inability of a manufacturer to
ship the Company's products in a timely manner or to meet the
Company's quality standards could adversely affect the Company's
ability to deliver products to its customers in a timely manner.
Delays in delivery could result in missing certain retailing
seasons with respect to some or all of the Company's products or
could otherwise have an adverse effect on the Company's financial
condition and results of operations. The Company does not have
long-term contracts with any manufacturers.
On August 7, 1996, a class action complaint naming the
Company and certain of its independent contractors was filed in
the Superior Court of the State of California for the County of
Los Angeles, titled as BRENDA FIGUEROA ET. AL. V. GUESS ?, INC.
ET. AL. (Case No. BC 155 165) (the "State Case"). The State Case
was remanded the United State District Court for the Central
District of California (Case No. 96-5484HLH (JGX)) (the "Federal
Case"). Both cases sought damages and injunctive relief, and
alleged, among other things, that the defendants' practices with
respect to the employees of such independent contractors have
violated various federal and state labor laws and regulations.
Certain components of the complaint have been remanded back to
State Court, resulting in two litigation cases. In the Federal
Case, plaintiffs claimed that the Company's independent
contractors violated the Federal Fair labor Standards Act
("FLSA") by failing to pay minimum wage and overtime in
accordance with the FLSA. On July 14, 1997, the Federal Court
dismissed the entirety of the Federal Case but for one plaintiff,
and dismissal of the remainder of the case is anticipated. In
the State Case, also a purported class action, plaintiffs assert
claims for violation of state wage and hour laws, wrongful
discharge, breach of contract, and certain counts of negligence
arising out of the Company's relationship with its independent
contractors and actions taken by the Company's independent
contractors with respect to the employees of such independent
contractors. In the State Case, plaintiffs also allege that the
Company breached its agreement with the United States Department
of Labor regarding the monitoring of its independent contractors.
Plaintiffs contend that the Company is liable for its
contractors' violations because it is a "joint employer" with its
independent contractors.
The Union of Needletrades, Industrial & Textile Employees
("UNITE") has filed with the National Labor Relations Board
("NLRB") several charges that the Company has engaged and is
engaging in unfair labor practices within the meaning of the
National Labor Relations Act ("NLRA"). In cases No. 2l-CA-31524,
No. 2l-CA-3l565 and No. 21-CA-3l648, UNITE has alleged that the
senior management of the Company unlawfully discharged certain
employees because of certain union activities and unlawfully
threatened and coerced employees in the exercise of their rights
under Section 7 of the NLRA. In an agreement with the NLRB, the
Company agreed to reinstate all of the employees allegedly
unlawfully discharged because of their union activities and
agreed to pay them back wages which aggregate approximately
$70,000. The settlement also provides for the posting of a
notice for 60 days at the Company stating that the matter has
been settled and that the Company agrees to comply with the NLRA.
The notice has a non-admission clause concerning liability.
Prior to the payment of the back wages, UNITE filed an additional
unfair labor practice charge with the NLRB (No. 2l-CA-3l807). In
this charge, UNITE alleges that the Company has unlawfully
threatened to move its production to Mexico and elsewhere outside
the United States thus unlawfully interfering with the organizing
campaign at the Company's headquarters, and has unlawfully ceased
doing business with independent contractors at which ongoing
union organizing campaigns are being conducted. This charge also
alleges that the Company has violated the settlement agreement in
cases No. 21-CA-31524, No. 21-CA-31565 and No. 21-CA-31648 by
making such threats. Charge No. 21-CA-31807 is currently under
investigation by the NLRB, however the General Counsel of the
NLRB has indicated to the Company that the NLRB intends to issue
a complaint in this case. The Company has been informed by the
NLRB that the NLRB is evaluating several legal theories on which
to bring the complaint including, but not limited to, the theory
that the Company is a joint employer. The NLRB has also indicated
that in the absence of a "joint employer" finding, the complaint
may be brought on a theory that the Company has violated the NLRA
by terminating contractual relationships with certain contractors
and/or providing a lesser amount of work to certain contractors
based on the contractors being subject to union organizing
efforts by UNITE. The NLRB has also indicated the possibility of
pursuing a theory that the Company is involved in an integrated
production effort with its contractors and is therefore liable
for the loss of contractor employee jobs.
Pending a decision by the NLRB regarding the allegation that
the Company breached the settlement agreement reached in cases
No. 21-CA-31524, No. 21-CA-31565 and No. 21-CA-31648, the Company
has withheld paying the approximately $70,000 in back wages
agreed to in its above described settlement with the NLRB and has
not posted notice of the settlement agreement. The subject
employees, however, have been reinstated and continue to be
employed by the Company.
In addition to the above cases, UNITE has filed a series of
unfair labor practice charges against the Company and related
parties. In Case No. 31-CA-22380, UNITE is seeking fees and
costs for having to defend certain causes of actions filed
against UNITE by the Company. On June 19, 1997 (No. 21-CA-
32106), UNITE filed with the NLRB charges that the Company, one
of the Company's independent contractors, the law firm of
Mitchell Silberberg & Knupp and certain employees of the Company
and Mitchell, Silberberg & Knupp, acting in concert with each
other, interfered with the employees of the independent
contractors in the exercise of such employees' Section 7 rights
under the NLRA respecting the enforcement of wage and hour laws.
In another action filed on June 30, 1997 (No. 21-CA-3213I), UNITE
filed with the NLRB charges alleging that the Company and its
President, Paul Marciano, have restrained, coerced, and
interfered with the Company's employees rights under Section 7 of
the NLRA by engaging in certain unlawful conduct including,
without limitation: (a) breaching the Settlement Agreement in
cases 21-CA-31524, 21-CA-31565 and 21-CA-31648; (b) organizing
anti-union demonstrations; and (c) bestowing certain benefits to
Company supporters while denying similar benefits to UNITE
supporters. The Company believes that the outcome of one or more
of the above cases could have a material adverse effect on the
Company's financial condition and results of operations, however
the Company is currently unable to predict the outcome of any
particular matter.
PROTECTION OF TRADEMARKS
Guess believes that its trademarks and other proprietary
rights are important to its success and its competitive position.
Accordingly, Guess devotes substantial resources to the
establishment and protection of its trademarks on a worldwide
basis. Nevertheless, there can be no assurance that the actions
taken by the Company to establish and protect its trademarks and
other proprietary rights will be adequate to prevent imitation of
its products by others or to prevent others from seeking to block
sales of Guess products as violative of the trademarks and
proprietary rights of others. No assurance can be given that
others will not assert rights in, or ownership of, trademarks and
other proprietary rights of Guess. In addition, the laws of
certain foreign countries do not protect proprietary rights to
the same extent as do the laws of the United States.
FUTURE SALES BY PRINCIPAL STOCKHOLDERS; SHARES ELIGIBLE FOR
FUTURE SALE
The Offered Shares being sold hereby will be freely
tradeable (other than by an "affiliate" of the Company as such
term is defined in the Securities Act of 1933, as amended (the
"Securities Act")) without restriction or registration under the
Securities Act. The Principal Stockholders beneficially own
approximately 82.9% of the outstanding shares of Common Stock.
The Principal Stockholders are free to sell such shares from time
to time to take advantage of favorable market conditions or for
any other reason. Future sales of shares of Common Stock by the
Company and its stockholders could adversely affect the
prevailing market price of the Common Stock. Approximately 36
million shares of Common Stock are eligible for sale pursuant to
Rule 144 promulgated under the Securities Act. In addition, the
Principal Stockholders have rights to demand or participate in
future registrations of shares of Common Stock under the
Securities Act. Sales of substantial amounts of Common Stock in
the public market, or the perception that such sales may occur,
could have a material adverse effect on the market price of the
Common Stock.
CONTROL BY PRINCIPAL STOCKHOLDERS
The Principal Stockholders have majority control of the
Company and the ability to control the election of directors and
the results of other matters submitted to a vote of stockholders.
Such concentration of ownership, together with the anti-takeover
effects of certain provisions in the Delaware General Corporation
Law and in the Company's Certificate of Incorporation and Bylaws,
may have the effect of delaying or preventing a change in control
of the Company. The Board of Directors of the Company is
comprised entirely of designees of the Principal Stockholders.
POSSIBLE VOLATILITY OF STOCK PRICE
The market price of shares of the Common Stock has been and
may continue to be volatile. Factors such as depth and liquidity
of the market for the Common Stock, investor perceptions of the
Company, changes in conditions or trends in the Company's
industry or in the industry of the Company's significant
customers, publicly traded comparable companies and general
economic and other conditions could have a significant impact on
the future price of the Common Stock.
FORWARD-LOOKING STATEMENTS
When used in this Prospectus and the documents incorporated
herein by reference, the words "believes," "anticipates,"
"expects" and similar expressions are intended to identify, in
certain circumstances, forward-looking statements. Such
statements are subject to a number of risks and uncertainties
that could cause actual results to differ materially from those
projected, including the risks described in this "Risk Factors"
section. Given these uncertainties, prospective investors are
cautioned not to place undue reliance on such statements. The
Company also undertakes no obligation to update these
forward-looking statements.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the
sale of the Offered Shares. All of the net proceeds from the
sale of the Offered Shares will for the account of the Selling
Stockholder or other persons who become Holders.
DIVIDEND POLICY
The Company anticipates that all of its earnings will be
retained for the foreseeable future for use in the operations of
the business. Any future determination as to the payment of
dividends will be at the discretion of the Company's Board of
Directors and will depend upon the Company's results of
operations, financial condition, contractual restrictions and
other factors deemed relevant by the Board of Directors. The
agreement governing the Company's revolving credit facility and
the indenture pursuant to which the certain of the Company's debt
obligations were issued restrict the payment of dividends by the
Company. For certain information regarding distributions made by
the Company in 1994, 1995 and 1996, see the documents
incorporated herein by reference.
THE SELLING STOCKHOLDER
The Company and Sweatshirt Apparel U.S.A., Inc., a New York
corporation ("Sweatshirt U.S.A."), Michel Bittan (the "Selling
Stockholder") and Thomas Glenon entered into an Asset Purchase
Agreement, dated as of December 6, 1996 (the "Asset Purchase
Agreement"), pursuant to which the Company issued 216,216 shares
of Common Stock to Sweatshirt U.S.A. and certain additional
consideration. Such shares have subsequently been transferred to
the Selling Stockholder. Pursuant to the Asset Purchase
Agreement, the Company also made and entered into a Registration
Rights Agreement, as of December 4, 1996 (the "Registration
Rights Agreement"), with the Selling Stockholder. Reference is
made to the full text of the Registration Rights Agreement which
is an Exhibit to the registration statement of which this
Prospectus forms a part. The Selling Stockholder has informed
the Company that as of the date of this Prospectus the Selling
Stockholder beneficially owns an aggregate of 276,276 shares of
Common Stock. Such holdings constitute less than one percent of
the outstanding shares of Common Stock as of the date hereof.
PLAN OF DISTRIBUTION
The Selling Stockholder and any Holders may offer Offered
Shares from time to time depending on market conditions and other
factors, in one or more transactions on the NYSE or other
national securities exchanges on which the Common Stock is
traded, in the over-the-counter market or otherwise, at market
prices prevailing at the time of sale, at negotiated prices or at
fixed prices. The Offered Shares may be offered in any manner
permitted by law, including through underwriters, brokers,
dealers or agents, and directly to one or more purchasers. Sales
of Offered Shares may involve (i) sales to underwriters who will
acquire Offered Shares for their own account and resell them in
one or more transactions at fixed prices or at varying prices
determined at time of sale, (ii) block transactions in which the
broker or dealer so engaged will attempt to sell the Offered
Shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction, (iii) purchases
by a broker or dealer as principal and resale by such broker or
dealer for its account, (iv) an exchange distribution in
accordance with the rules of any such exchange and (v) ordinary
brokerage transactions and transactions in which a broker
solicits purchasers. Brokers and dealers may receive
compensation in the form of underwriting discounts, concessions
or commissions from the Selling Stockholder (or Holders) and/or
purchasers of Offered Shares for whom they may act as agent
(which compensation may be in excess of customary commissions).
The Selling Stockholder (or Holder) and any broker or dealer that
participates in the distribution of Offered Shares may be deemed
to be underwriters and any commissions received by them and any
profit on the resale of Offered Shares positioned by a broker or
dealer may be deemed to be underwriting discounts and commissions
under the Securities Act. In the event any Selling Stockholder
(or Holder) engages an underwriter in connection with the sale of
the Offered Shares, to the extent required, a Prospectus
Supplement will be distributed, which will set forth the number
of Offered Shares being offered and the terms of the offering,
including the names of the underwriters, any discounts,
commissions and other items constituting compensation to
underwriters, dealers or agents, the public offering price and
any discounts, commissions or concessions allowed or reallowed or
paid by underwriters to dealers.
In addition, the Selling Stockholder (or any Holder) may
from time to time sell Offered Shares in transactions under Rule
144 promulgated under the Securities Act.
Pursuant to the Registration Rights Agreement, the Company
agreed to use reasonable efforts to effect the registration of
the Offered Shares and to permit the resale of the Offered Shares
in accordance with the Selling Stockholder's intended method or
methods. The Registration Rights Agreement obligates the Company
to pay all expenses incurred in connection with registration,
excluding underwriters' discounts and commissions and the fees
and disbursements of counsel for the Selling Stockholder, 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, and fees and disbursements of
counsel for the Company. The Selling Stockholder will bear and
pay the underwriting commissions and discounts applicable to
securities offered for its account in connection with any
registrations, filings and qualifications made pursuant to the
Registration Rights Agreement. The Company agreed in the
Registration Rights Agreement to indemnify the Selling
Stockholder against certain liabilities, including liabilities
under the Securities Act.
LEGAL MATTERS
The validity of the issuance of the Offered Shares will be
passed upon for the Company by Glenn A. Weinman, the Company's
General Counsel.
EXPERTS
The consolidated financial statements and schedule of the
Company as of December 31, 1996 and 1995, and for each of the
years in the three-year period ended December 31, 1996, have been
incorporated by reference herein and in the registration
statement in reliance upon the report of KPMG Peat Marwick LLP,
independent certified public accountants, appearing in the
Company's Annual Report on Form 10-K for the year ended December
31, 1996, and upon the authority of said firm as experts in
accounting and auditing.
ADDITIONAL INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and, in accordance therewith, files reports and other
information with the Securities and Exchange Commission (the
"Commission"). Such reports and other information filed by the
Company may be inspected without charge at the Commission's
principal office in Washington, D.C., and at the following
regional offices of the Commission: Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511 and at
Seven World Trade Center, Suite 1300, New York, New York 10048.
Copies of all or any part thereof may be obtained from the Public
Reference Section, Commission, 450 Fifth Street, N.W.,
Washington, D.C. 20549 upon payment of the prescribed fees. The
Company files reports and other information with the NYSE which
can also be inspected at the offices of the NYSE, 20 Broad
Street, New York, New York 10005. In addition, the Commission
maintains a World Wide Web site on the Internet at
http://www.sec.gov that contains reports, proxy and information
statements and other information regarding registrants that file
electronically with the Commission.
The Company has filed with the Commission a Registration
Statement on Form S-3 under the Securities Act with respect to
the Offered Shares. This Prospectus does not contain all of the
information set forth in the Registration Statement and the
exhibits and schedules thereto. For further information with
respect to the Company, the Offered Shares or the Common Stock,
reference is made to the Registration Statement, the documents
incorporated therein by reference and the schedules and exhibits
constituting a part thereof. Statements contained in this
Prospectus regarding the contents of any contract or any other
document are not necessarily complete and, in each instance,
reference is hereby made to the copy of such contract or other
document listed as an exhibit to such Registration Statement. The
Registration Statement, including exhibits thereto, may be
inspected without charge office of the Commission. Copies of all
or any part thereof may be obtained upon payment of the
prescribed fees.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed by the Company with
the Commission under the Exchange Act are incorporated herein by
reference:
(a) Annual Report on Form 10-K for the year ended December 31,
1996 (File No. 1-11893);
(b) Quarterly Report on Form 10-Q for the quarter ended March
31, 1997 (File No. 1-11893);
(c) Quarterly Report on Form 10-Q for the quarter ended June
30, 1997 (File No. 1-11893); and
(d) Registration Statement on Form 8-A, relating to the Common
Stock (File No. 1-11893).
All documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this
Prospectus and prior to the termination of the offering of the
Offered Shares shall be deemed to be incorporated by reference
into this Prospectus and to be a part hereof from the date of
filing of such documents.
Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes hereof to the extent that a
statement herein (or in any other subsequently filed document
that is or is deemed to be incorporated by reference herein)
modifies or supersedes such previous statement. Any statement so
modified or superseded shall not be deemed to constitute a part
hereof except as so modified or superseded.
This Prospectus incorporates documents by reference that are
not presented herein or delivered herewith. These documents
(other than exhibits to such documents, unless such exhibits are
specifically incorporated by reference herein) are available,
without charge, upon oral or written request by any person to
whom this Prospectus has been delivered addressed to the Company,
1444 South Alameda Street, Los Angeles, California 90021,
Attention: Investor Relations, telephone number (213) 765-5578.
NO DEALER, SALESPERSON OR
OTHER INDIVIDUAL HAS BEEN
AUTHORIZED TO GIVE ANY
INFORMATION OR MAKE ANY
REPRESENTATIONS NOT CONTAINED
IN THIS PROSPECTUS IN
CONNECTION WITH THE OFFERING 216,216 Shares
COVERED BY THIS PROSPECTUS. IF
GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS
MUST NOT BE RELIED UPON AS GUESS ?, INC.
HAVING BEEN AUTHORIZED BY THE
COMPANY OR THE SELLING Common Stock
STOCKHOLDER. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER
TO SELL, OR A SOLICITATION OF
AN OFFER TO BUY, THE COMMON
STOCK IN ANY JURISDICTION
WHERE, OR TO ANY PERSON TO
WHOM, IT IS UNLAWFUL TO MAKE
SUCH OFFER OR SOLICITATION. PROSPECTUS
NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY
IMPLICATION THAT THERE HAS NOT
BEEN ANY CHANGE IN THE FACTS
SET FORTH IN THIS PROSPECTUS
OR IN THE AFFAIRS OF THE
COMPANY SINCE THE DATE HEREOF.
TABLE OF CONTENTS
Page
The Company . . . . . . . 2
Risk Factors . . . . . . . 2
Use of Proceeds . . . . . 8
Dividend Policy . . . . . 8
The Selling Stockholder . . 8
Plan of Distribution . . . 9
Legal Matters . . . . . . 10
Experts . . . . . . . . . 10
Additional Information . . 10
Incorporation of Certain
Documents by
Reference . . . . . . . . 10 October 21, 1997
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
SEC registration fee . . . . . . . . $ 615
Printing and engraving expenses . . 100
Accountants' fees and expenses . . . 1,500
Attorneys' fees and expenses . . . . 7,500
Transfer agent fees . . . . . . . . 100
Miscellaneous . . . . . . . . . . . 5,185
------
Total . . . . . . . . . . . . . . $15,000
=======
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to Section 145 of the General Corporation Law of
the State of Delaware (the "DGCL"), Article IX of the Bylaws of
the Registrant, which is Exhibit 3.2 to this Registration
Statement, provides that the Registrant shall indemnify any
person in connection with 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 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 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 is by or in the right of the Registrant, the
director or officer may he 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 IX 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,
employee or agent of another corporation, partnership or other
enterprise at the request of the Registrant
Pursuant to Section 102(b)(7) of the DGCL, Article VII of
the Restated Certificate of Incorporation of the Registrant,
which is Exhibit 3.1 to this Registration Statement, 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 DGCL, or (4) for any
transaction from which the director derived an improper personal
benefit.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
In connection with the organization of the Registrant in
August 1993, Armand Marciano purchased 100 shares of common stock
of the Registrant. On August 23, 1993, Armand Marciano sold such
shares to Guess ?, Inc., a California corporation ("Guess
California"), the Registrant's predecessor. Thereafter, in
connection with the merger of Guess California with and into the
Registrant pursuant to an Agreement and Plan of Merger between
the Registrant and Guess California, all of the then outstanding
shares of common stock of the Registrant were cancelled and
retired, and all of the then outstanding shares of the common
stock of Guess California were converted into and became shares
of common stock of the Registrant. In addition, on August 23,
1993, Guess California sold $130.0 million principal amount of
91/2% Senior Subordinated Notes due 2003 (the "Senior Subordinated
Notes") to Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith, Incorporated ("Merrill Lynch") at 100% of the principal
amount thereof (less aggregate discounts of $3.25 million). Each
of such transactions was exempt from the registration
requirements of the Securities Act in reliance on Section 4(2) of
the Securities Act on the basis that such transaction did not
involve a public offering. In accordance with the agreement
pursuant to which Merrill Lynch purchased the Senior Subordinated
Notes, Merrill Lynch agreed to offer and sell the Senior
Subordinated Notes only to "qualified institutional buyers" (as
defined in Rule 144A under the Securities Act), a limited number
of institutional "accredited investors" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) and pursuant
to offers and sales that occur outside the United States within
the meaning of Regulation S under the Securities Act. Except for
the transactions referred to above, there have not been any
recent sales of unregistered securities by the Registrant. On
December 4, 1996 the Company sold 216,216 shares of Common Stock
in a transaction exempt from registration under the Securities
Act in reliance upon Section 4(2) of the Securities Act on the
basis that such transaction did not involve a public offering.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
Exhibit
Number Description
3.1. Restated Certificate of Incorporation of the
Registrant. (6)
3.2. Bylaws of the Registrant. (6)
4.1. Indenture, dated August 23, 1993, between the
Registrant and First Trust National Association, as
Trustee. (1)
4.2. First Supplemental Indenture, dated August 23, 1993,
between the Registrant and First Trust National
Association, as Trustee. (1)
4.3. Specimen stock certificate.(6)
*5.1. Opinion of Glenn A. Weinman, General Counsel of
the Registrant
10.1. Amended and Restated Stockholders' Agreement. (1)
10.2. Letter Agreement, dated July 9, 1993, among the
Registrant, Georges Marciano, Maurice Marciano,
Paul Marciano, Armand Marciano and trusts for
their respective benefit. (1)
10.3. Employment Agreement, dated March 1, 1994, between
the Registrant and Roger A. Williams. (3)
10.4. Letter Agreement, dated January 22, 1996, between
the Registrant and Andrea Weiss. (6)
10.5. Employment Agreement, dated as of May 14, 1996,
between the Registrant and Francis K. Duane. (6)
10.6. General Release and Indemnity Agreement, dated
August 23, 1993, among Maurice, Paul and Armand
Marciano, their respective trusts, the Registrant,
Georges Marciano and his trust. (1)
10.7. General Release Agreement, dated August 23, 1993,
among Maurice, Paul and Armand Marciano, their
respective trusts, the Registrant, and Georges
Marciano and his trust. (1)
10.8. Cancellation and Reassignment Agreement, dated
August 23, 1993, among the Registrant,
MSKMarciano, Inc., Georges Marciano, Inc. and
Georges Marciano. (1)
10.9. Alameda Lease, dated July 29, 1992, among the
Registrant and 1444 Partners, Ltd. (1)
10.10. Revolving Credit Agreement, dated as of December
20, 1993, between the Registrant and The First
National Bank of Boston, as agent, and Sanwa Bank
California, as co-agent, and the group of
financial institution party thereto (the
"Revolving Credit Agreement"). (3)
10.11. Security Agreement, dated December 20, 1993,
between the Registrant and the First National Bank
of Boston, as agent for itself and for certain
lenders. (3)
10.12. Amendment No. 1 to the Revolving Credit Agreement,
dated January 20, 1994, among the parties thereto.(4)
10.13. Amendment No. 2 to the Revolving Credit Agreement,
dated April 1, 1994, among the parties thereto.(4)
10.14. Amendment No. 3 to the Revolving Credit Agreement,
dated July 18, 1994, among the parties thereto.(4)
10.15. Amendment No. 4 to the Revolving Credit Agreement,
dated October 24, 1994, among the parties thereto.(4)
10.16. Amendment No. 5 to the Revolving Credit Agreement,
dated February 13, 1995, among the parties
thereto. (5)
10.17. Amendment No. 6 to the Revolving Credit Agreement,
dated September 14, 1995, among the parties
thereto. (5)
10.18. Amendment No. 7 to the Revolving Credit Agreement,
dated December 22, 1995, among the parties
thereto. (5)
10.19. Amendment No. 8 to the Revolving Credit Agreement,
dated February 13, 1996, among the parties
thereto. (2)
10.20 Amended and Restated Revolving Credit Agreement,
dated as of March 28, 1997 among the parties
thereto. (7)
10.21. Agreement as to Consignment of Documents and
Related Matters, dated December 22, 1995, between
the Registrant and The First National Bank of
Boston. (5)
10.22. 1996 Equity Incentive Plan. (2)
10.23. 1996 Non-Employee Directors' Stock Option Plan.(2)
10.24. Annual Incentive Plan. (2)
10.25. Employment Agreement between the Registrant and
Maurice Marciano. (1)
10.26. Employment Agreement between the Registrant and
Paul Marciano. (1)
10.27. Employment Agreement between the Registrant and
Armand Marciano. (1)
10.28. Registration Rights Agreement among the Registrant
and certain stockholders of the Registrant. (1)
10.29. Indemnification Agreement among the Registrant and
certain stockholders of the Registrant. (1)
10.30. Indemnification Agreement. (1)
10.31. Registration Rights Agreement, made and entered
into as of December 4, 1996, by and between the
Registrant and the Selling Stockholder .(7)
10.32 First Amendment and Waiver to the Amended and
Restated Revolving Credit Agreement by and between
the Registrant and BankBoston, NA, F/K/A The First
National Bank of Boston, Sanwa Bank California and
the Financial Institutions Party thereto (8)
18.1. Letter regarding change in accounting principles. (8)
21.1. List of Subsidiaries. (6)
*23.1. Consent of KPMG Peat Marwick LLP, independent
certified public accountants.
23.2. Consent of Glenn A. Weinman (included in Exhibit
5.1).
24.1. Power of Attorney (included on page II-7).
27.1. Financial Data Schedule. (7)
(b) Financial Statement Schedule: Description
Schedule II Valuation and Qualifying
Accounts(7)
_______________________
* Filed herewith.
(1) Incorporated by reference from the Registration Statement on
Form S-1 (File No. 33-69236) originally filed by the Company
on September 22, 1993.
(2) Incorporated by reference from Amendment No. 1 to the
Registration Statement on Form S-1 (File No. 33-69236) filed
by the Company on November 24, 1993.
(3) Incorporated by reference from the Company's Quarterly
Report on Form 10-Q for the quarter ended March 27, 1994.
(4) Incorporated by reference from the Company's Annual Report
on Form 10-K for the year ended December 31, 1994.
(5) Incorporated by reference from the Company's Annual Report
on Form 10-K for the year ended December 31, 1995.
(6) Incorporated by reference from the Company's Registration
Statement on Form S-1 (File No. 333-4419), as amended.
(7) Incorporated by reference from the Company's Annual Report
on Form 10-K for the year ended December 31, 1996.
(8) Incorporated by reference from the Company's Quarterly
Report on Form 10-Q for the quarter ending March 31, 1997.
(9) Incorporated by reference form the Company's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1997.
ITEM 17. UNDERTAKINGS.
(a) The undersigned hereby undertakes as follows:
To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933.
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in this
registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed
that which was registered) and any deviation from the lower
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement.
(iii) 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.
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.
For the purpose of determining any liability under the
Securities Act of 1933, 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.
(b) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 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.
(c) The undersigned Registrant hereby undertakes that for
purposes of determining any liability under the Securities Act of
1933, each filing of the Registrant s annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit
plan s annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-3 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 twenty-first
day of October, 1997.
GUESS ?, INC.
By:/s/ MAURICE MARCIANO
----------------------------
Maurice Marciano
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Maurice Marciano
and Glenn A. Weinman, and each of them, in their true and lawful
attorneys-in-fact and agents, each with power to act alone, with
full power of substitution and resubstitution, for him or her and
in his or her name, place and stead, in any and all capacities,
to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents 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 he or she
might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or their substitutes, may
lawfully do or cause or to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
Signature Title Date
/s/ MAURICE MARCIANO Chairman of the Board October 21, 1997
________________ and Chief Executive
Maurice Marciano Officer (Principal
Executive, Financial
and Accounting
Officer)
/s/ PAUL MARCIANO President, Chief October 21, 1997
________________ Operating Officer and
Paul Marciano Director
/s/ ARMAND MARCIANO Senior Executive Vice October 21, 1997
________________ President,
Armand Marciano Assistant Secretary
and Director
/s/ ALDO PAPONE Director October 21, 1997
________________
Aldo Papone
/s/ ROBERT C. DAVIS Director October 21, 1997
________________
Robert C. Davis
[LETTERHEAD OF GUESS ?, INC.]
October 21, 1997
Board of Directors
Guess ?, Inc.
1444 South Alameda Street
Los Angeles, California 90021
Gentlemen:
I am General Counsel of Guess ?, Inc., a Delaware
corporation (the "Company"), and have acted in such capacity in
connection with the public offering by Michel Bittan (the
"Selling Stockholder"), of 216,216 shares (the "Offered Shares")
of Common Stock, par value $.01 per share (the "Common Stock"),
of the Company.
This opinion is being furnished in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the
Securities Act of 1933, as amended (the "Securities Act").
In connection with this opinion, I have examined originals
or copies, certified or otherwise identified to my satisfaction
of (i) the Registration Statement on Form S-3 as filed with the
Securities and Exchange Commission (the "Commission") on
October 21, 1997 (the "Registration Statement"); (ii) the Asset
Purchase Agreement, dated as of December 4, 1996 (the "Asset
Purchase Agreement"), by and among Sweatshirt U.S.A., Inc., a New
York corporation, the Selling Stockholder, Thomas Glenon and the
Company; (iii) the certificate, dated December 4, 1996,
representing 216,216 shares of Common Stock registered in the
name of the Selling Stockholder; (iv) the Restated Certificate of
Incorporation of the Company, as in effect on December 4, 1996
and the date hereof; (v) the By-laws of the Company, as in effect
on December 4, 1996 and the date hereof; and (vi) certain
resolutions of the Board of Directors of the Company relating to
the Asset Purchase Agreement and the transactions contemplated
thereby. I have also examined originals or copies, certified or
otherwise identified to my satisfaction, of such records of the
Company and such agreements, certificates of public officials,
certificates of officers or other representatives of the Company
and others, and such other documents, certificates and records as
I have deemed necessary or appropriate as a basis for the
opinions set forth herein.
In my examination, I have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the
authenticity of all documents submitted to me as originals, the
conformity to original documents of all documents submitted to me
as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents. In
making my examination of documents executed or to be executed by
parties other than the Company, I have assumed that such parties
had the power, corporate or other, to enter into and perform all
obligations thereunder and have also assumed the due
authorization by all requisite action, corporate or other, and
execution and delivery by such parties of such documents and the
validity and binding effect thereof. As to any facts material to
the opinions expressed herein which I have not independently
established or verified, I have relied upon statements and
representations of officers and other representatives of the
Company and others.
I am admitted to the bar of the State of California and do
not express any opinion as to any laws other than the General
Corporation Law of the State of Delaware.
Based upon and subject to the foregoing, I am of the opinion
that the issuance and sale of the Offered Shares was duly
authorized and that the Offered Shares were validly issued and
are fully paid and nonassessable.
I hereby consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement. I also
consent to the reference to me in the Registration Statement
under the caption "Legal Matters." In giving this consent, I do
not thereby admit that I am in the category of persons whose
consent is required under Section 7 of the Securities Act or the
rules and regulations of the Commission.
Very truly yours,
/s/ Glenn A. Weinman
Glenn A. Weinman
CONSENT OF KPMG PEAT MARWICK LLP
Board of Directors
Guess ?, Inc.
We hereby consent to the incorporation by reference in the
Registration Statement on Form S-3, filed by Guess ?, Inc. (the
"Company") of our report dated February 24, 1997, included in the
Company's annual report on Form 10-K for the year ended December
31, 1996 and to the reference to our firm under the heading
"Experts."
/s/ KPMG PEAT MARWICK LLP
Los Angeles, California
October 15, 1997
