Current Report — Form 8-K Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: 8-K Current Report HTML 30K
2: EX-2.1 Plan of Acquisition, Reorganization, Arrangement, HTML 315K Liquidation or Succession
3: EX-99.1 Miscellaneous Exhibit HTML 18K
EX-2.1 — Plan of Acquisition, Reorganization, Arrangement, Liquidation or Succession
Obligations and Liabilities of Licensed Businesses
4.02A
Sellers’ Deliverables
4.02B
Purchasers’ Deliverables
5.01
List of Sellers and Sellers’ Affiliates
5.04
Consents and Approvals of Governmental Authorities(Sellers)
5.05
No Third Party Consent
6.01
Maco Capitalization
6.08(a)
Unaudited Internal Balance Sheet of Maco as of September 30,2004
6.08(b)
Unaudited Balance Sheet and Income Statement of Licensed Business
6.09
No Undisclosed Liabilities
6.10(b)
List of Assignment of Litigated Credit
6.12
Permitted Liens
6.13
Patents, Trademarks and Registrations of Sellers, Maco, DutchCo and
Sellers’ Affiliates
6.14
Technology Licenses and Agreements and Consulting Agreements
6.15
Leases
6.16
Environmental Matters
6.17
Licenses, Permits and Authorizations
6.21
Inter-company transactions
6.23
Affiliates conducting business for Licensed Businesses
6.30
Insurance
6.31
Employees and their gross salary (all)
6.40
Personal Property leases
6.44
Real Property Leases
6.44A
Amounts owed to architects, contractors, etc.
7.04
Consent and Approvals of Government Authorities (Purchasers)
10.09
Information Technology
12.02
Maco’s debts
Exhibit
Title
A
Escrow Agreement
B
Information Technology Services Agreement
C
Tenancy Contract for Other Than Habitation Use [lease agreement for
Maco Facility]
D
Contract of Storage and Handling of Goods [Warehousing and Logistics
Agreement]
E
Opinion of Sellers’ Counsel
PURCHASE AGREEMENT
THIS PURCHASE
AGREEMENT (“Agreement”) is made as of December 31, 2004 by and
between (A) Guess?, Inc., a Delaware corporation (“Guess”), and Guess
Italia S.r.l., an Italian company and wholly-owned subsidiary of Guess?, Inc. (“Guess
Italia”), (collectively “Purchasers”) and (B) Fingen S.p.A., an
Italian company (“Fingen”), and Fingen Apparel N.V., a Netherlands
company and wholly-owned subsidiary of Fingen (collectively “Sellers”).
RECITALS
WHEREAS, Guess
owns and operates an apparel business worldwide;
WHEREAS, Guess
Italia owns 10% of the shares of capital stock of Maco Apparel, S.p.A. (“Maco”),
an Italian company;
WHEREAS, Guess
has licensed to Sellers or their affiliates the right to manufacture and
distribute certain GUESS jeanswear apparel products in Europe and to operate
GUESS retail apparel stores and outlets that sell GUESS apparel, accessories,
and other GUESS products in the countries of Italy, France, England, the
Netherlands, and Switzerland (in the aggregate (other than Maco), the “Licensed
Businesses” or, individually a “Licensed Business”); and
WHEREAS,
Sellers have agreed to sell and Purchasers have agreed to purchase on the terms
and conditions set forth herein (i) all shares of capital stock of Maco
owned by Fingen Apparel N.V. and (ii) certain enumerated assets of the Licensed
Businesses owned or controlled by Sellers.
NOW THEREFORE,
for consideration, the value, receipt, and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows.
ARTICLE I
DEFINITIONS
The following
terms will have the indicated meanings for purposes of this Agreement.
“2005 Design
Expenses” has the meaning ascribed to it in Section 12.01.
“Accountants”
has the meaning ascribed to it in Section 2.06.
“Accounts
Receivable Shortfall” has the meaning ascribed to it in Section 2.05.
“Actions” has
the meaning ascribed to it in Section 5.06.
“Adjusted Net
Worth” has the meaning ascribed to it in Section 2.02(b).
“Affiliates” means,
with respect to any Person, a Person that controls, is controlled by, or is
under common control with, such Person.
“Affiliate
Transferor” has the meaning ascribed to it in Section 5.02.
“Agreement”
means this Agreement together with all exhibits and schedules thereto and the
Closing Documents.
“Aggregate
Purchase Price” has the meaning ascribed to it in Section 2.07.
“Amsterdam
Leasehold Amount” has the meaning ascribed to it in Section 3.04(d)
“Asset
Purchase Price” has the meaning ascribed to it in Section 3.04(a).
“Asset Sale”
means the purchase and sale of the Transferred Assets, described in
Article III.
“Auditors” has the meaning ascribed to it in
Section 2.02(b).
“Board” has
the meaning ascribed to it in Section 10.06.
“Board of
Statutory Auditors” has the meaning ascribed to it in Section 10.06.
“Callaert
Litigation” means the litigation currently pending against Maco, Fingen or any
of its Affiliates, by Callaert B.V., a Benelux distributor, and against
Callaert by Maco, Fingen or any of its Affiliates, for alleged reciprocal breaches
of a distribution agreement.
“Claims” has
the meaning ascribed to it in Section 8.02(a).
“Closing” has
the meaning ascribed to it in Section 4.01.
“Closing Date”
means the first business day after the Effective Date or such other date as may
be established under Section 4.01.
“Closing
Documents” means all assignments, bills of sale, instruments, certificates, and
other documents delivered at Closing or on a Transfer Date in connection with
the Stock Sale or the Asset Sale, including without limitation the Conveyance
Agreements.
“Code” has the
meaning ascribed to it in the definition of “Taxes”.
“Contract Assignment”
has the meaning ascribed to it in Schedule 4.02(A).
“Conveyance
Agreement” has the meaning ascribed to it in Section 3.01.
“Designated
Employees” has the meaning ascribed to it in Section 12.03(a).
“Disclosure
Schedules” means the schedules attached to this Agreement pursuant to Articles
V and VI.
“Dutch Assets”
has the meaning ascribed to it in Section 3.01.
“DutchCo” has
the meaning ascribed to it in Section 3.01.
“DutchCo
Shares” means all shares (and rights to acquire shares, to direct the
disposition of shares, or to vote or direct the voting of shares) of capital
stock of DutchCo presently issued and outstanding.
“DutchCo’s
Assets” has the meaning ascribed to it in Section 6.11.
“English
Assets” has the meaning ascribed to it in Section 3.01.
“Environmental
Laws” has the meaning ascribed to it in Section 6.16.
“Equipment”
has the meaning ascribed to it in Section 3.02(b).
“Escrow Agent”
has the meaning ascribed to it in Section 2.07.
“Escrow
Agreement” has the meaning ascribed to it in Section 2.07.
“Excluded
Assets” has the meaning ascribed to it in Section 3.03.
“Excluded
Liabilities” has the meaning ascribed to it in Section 3.05.
“Financial
Statements” has the meaning ascribed to it in Section 6.08(a).
“Fixed Payment”
has the meaning ascribed to it in Section 2.08.
“French Assets”
has the meaning ascribed to it in Section 3.01.
“Hazardous
Substance” has the meaning ascribed to it in Section 6.16.
“Holdback
Amount” has the meaning ascribed to it in Section 2.07.
“General
Assignment” has the meaning ascribed to it in Schedule 4.02(A).
“Indemnified
Party” has the meaning ascribed to it in Section 8.04.
“Indemnifying
Party” has the meaning ascribed to it in Section 8.04.
“Italian GAAP”
means collectively accounting principles prescribed by Italian law and supplemented
by the accounting principles issued by the Consiglio Nazionale dei Dottori
Commercialisti e dei Ragionieri, consistently applied.
“Inventories”
has the meaning ascribed to it in Section 3.02(a).
“Italian
Assets” has the meaning ascribed to it in Section 3.01.
“Leased Real
Property” has the meaning ascribed to it in Section 6.44.
“License
Agreement” has the meaning ascribed to it in Section 6.42.
“Licensed
Businesses” and “Licensed Business” have the meaning ascribed to the terms in
the Recitals on page 1.
“Lien” has the meaning ascribed to it in
Section 6.12.
“London Leasehold
Amount” has the meaning ascribed to it in Section 3.04(c).
“Loss Amount”
has the meaning ascribed to it in Section 2.03.
“Losses” has
the meaning ascribed to it in Section 8.03(a).
“Maco’s Assets”
has the meaning ascribed to it in Section 6.11.
“Maco Facility”
has the meaning ascribed to it in Section 10.09(b).
“Maco
Inventory” has the meaning ascribed to it in Section 2.02(b)(ii).
“Material
Adverse Effect” has the meaning ascribed to it in Section 5.01.
“Material
Contracts” has the meaning ascribed to it in Section 6.14(b).
“Net Sales”
has the meaning ascribed to it in Section 6.08(b).
“Organizational
Documents” has the meaning ascribed to it in Section 5.01.
“Permits” has
the meaning ascribed to it in Section 6.17.
“Permitted
Liens” has the meaning ascribed to it in Section 6.12.
“Person” means
any individual, corporation, partnership, limited liability company, joint
venture, trust, association, organization, governmental entity or any other
entity of any nature.
“Real Property
Leases” has the meaning ascribed to it in Section 6.44.
“Shares” means
all shares (and rights to acquire shares, to direct the disposition of shares,
or to vote or direct the voting of shares) of capital stock of Maco presently issued
and outstanding other than shares in Maco held by Purchasers.
“Share
Purchase Price” has the meaning ascribed to it in Section 2.02(a).
“Stock Sale”
means the purchase and sale of the Shares described in Article II.
“Swiss Assets”
has the meaning ascribed to it in Section 3.01.
“Tax” or “Taxes”
means any income, gross receipts, license, payroll, employment, excise,
severance, stamp, occupation, premium, windfall profits, environmental
(including a tax under Section 59A of the U.S. Internal Revenue Code of 1986,
as amended (the “Code”)), capital stock, franchise, profits,
withholding, social security (or similar), unemployment, disability, real
property, personal property, sales, use, transfer, real property transfer,
recording, registration,
value added, alternative or add-on minimum, estimated, or other tax of
any kind whatsoever (including without limitation Transfer Taxes), customs
duty, fee or other similar assessment or charge in the nature of a tax, imposed
by any federal, state, local or foreign governmental authority, including any
interest or penalty thereon or addition thereto, whether disputed or not.
“Tax Return”
means any return, declaration, report, form, claim for refund or information
return or statement relating to Taxes, including any schedule or attachment
thereto, and any amendment thereof.
“Transfer Date” has the meaning ascribed to it
in Sections 3.04 and 4.01.
“Transfer
Taxes” means all real, personal, and intellectual property transfer,
documentary, sales, use, value added, stamp, recording, registration, excise,
or other similar Taxes, and any notarial fees and registration fees (other than
Taxes (including interest penalties and additions to Tax) measured by, or with
respect to, income imposed on Sellers or on Purchasers).
“Transferred
Assets” has the meaning ascribed to it in Section 3.02.
ARTICLE II
STOCK SALE
2.01 Purchase and Sale of
Shares. Sellers sell, transfer,
convey, assign, and deliver to Guess Italia, and Guess Italia purchases,
acquires, and accepts from Sellers, for the Share Purchase Price all right,
title, and interest of Sellers in and to the Shares at the Closing.
2.02 Share Purchase Price
Calculation.
(a) The
purchase price to be paid for the Shares (the “Share Purchase Price”) is
an amount equal to 90% of Adjusted Net Worth.
(b) “Adjusted
Net Worth” means the net worth of Maco as of December 31, 2004 as
determined jointly by the respective auditors of Purchasers and Sellers
(collectively, the “Auditors”) for financial reporting purposes of Maco’s
annual period 2004 (January 1, 2004 to December 31, 2004) in accordance with
Italian GAAP. The Auditors will base
their determination on Maco’s audited financial statements as of December 31,2004 adjusted as provided in the following clauses (i)-(vii) below, if the
adjustments are not already reflected in Maco’s audited financial statements as
of December 31, 2004:
(i) The
Auditors will ascribe the value of €9,000,000 to all intangible assets of Maco.
(ii) The
Auditors will value the 2004 inventory of Maco (“Maco Inventory”) as of
the Effective Date based on the lower of (A) cost of first quality inventory
and (B) the market value of such Maco
Inventory as established by
sales to either independent third party retailers or to GUESS outlet stores
located in Europe, such sales to be comparable to sales in prior years as to
price and number of units sold to third party retailers or GUESS outlet stores. Inventory consisting of items from
collections prior to 2004 will be valued at zero.
(iii) The
Taxes receivable (or deferred Taxes) appearing on the audited Financial
Statements will be entirely eliminated and will not constitute an asset of Maco
for purposes of determining Adjusted Net Worth.
(iv) A
physical inventory of Maco Inventory as of the Effective Date will be performed
on or about January 3, 2005 by TNT or other comparable independent third
party firm and utilized by the Auditors in the determination of Adjusted Net
Worth.
(v) All
royalties, including without limitation the minimum royalty, and all other
amounts to be paid by Maco to Guess under the License Agreement will be accrued
as payables as of the Effective Date.
(vi) All
accounts receivable will be treated as fully collectible.
(vii) All
reserves related to the Callaert Litigation (“fondo rischi”) will be eliminated
and will not be considered a liability of Maco.
(c) The
Adjusted Net Worth will reflect the payment of the Loss Amount as defined in Section
2.03 by the Seller to the Purchaser and the subsequent capital contribution to
Maco by the Purchaser to compensate for the Loss Amount.
2.03 Loss Adjustment. An amount (“Loss Amount”) equal to
Maco’s loss accrued during the period January 1, 2004 to December 31, 2004,
if any, will be paid by Fingen Apparel N.V. to Guess Italia on March 15,2005 without offset. The Loss Amount
will be determined by the Auditors based on Maco’s audited financial statements
for such period adjusted by using the following guidelines in Section 2.02(b) for
determining Adjusted Net Worth: Section 2.02(b)(ii) (Maco Inventory),
Section 2.02(b)(iii) (Taxes receivable), Section 2.02(b)(v) (accrual of
royalty), Section 2.02(b)(vi) (accounts receivable) and Section 2.02(b)(vii) (Callaert
Litigation).
2.04 Audit. Sellers, with all due cooperation by the
Purchasers, will cause Maco’s independent auditors to complete the audit of
Maco’s Financial Statements as of the Effective Date, and deliver them to
Purchasers for their receipt, on or before March 15, 2005.
2.05 Accounts Receivable
Guarantee. The difference (“Accounts
Receivable Shortfall”) between (i) the amount of Maco’s accounts
receivable recorded on Maco’s audited financial statements as adjusted pursuant
to Section 2.02(b)(vi) and (ii) the amount of such receivables actually
collected by Maco during the period January 1, 2005 through June 30,2005
will be
determined by the Auditors on or before July 1, 2005. Sellers will pay to Purchasers the Accounts
Receivable Shortfall on July 1, 2005 without offset, and Purchasers will
cause Maco to transfer to Sellers without warranty or recourse such receivables
for which Sellers are making payment.
Purchasers will cause Maco to solicit, pursue and enforce collection of
such receivables pursuant to normal business habits and past practice, and will
periodically update Sellers on collection of such receivables. Through July 1, 2005, Purchasers will also cause Maco to timely
request insurance repayments of insured receivables and to supply to credit
insurers all required information to allow insurers to pay insured receivables.
2.06 Objections.
(a) If
either Sellers or Purchasers object to the Auditors’ determination of the Share
Purchase Price, Adjusted Net Worth, or any adjustments or amounts to be
determined pursuant to this Article II, or the 2005 Fall/Winter Collection
pursuant to Section 12.01, the objecting parties will give written notice to
the Auditors and to the non-objecting parties within 10 business days after
receipt by the objecting parties of such determination and will include in the
notice a description of the issue(s) in dispute. The issue(s) in dispute will be submitted to Deloitte
& Touche LP or any other reputable international accounting firm other than
the Auditors acceptable to the parties (“Accountants”) for resolution. The determination by the Accountants, as set
forth in a notice delivered to both parties by the Accountants, will be made
within 30 days and will be binding and conclusive on the parties. Sellers and Purchasers will each bear 50% of
the fees of the Accountants for such determination.
(b) To
the extent matters referred to the Accountants for resolution result in changes
to the Loss Amount, the royalties under the License Agreement, or the Accounts
Receivable Shortfall, such amounts will be promptly reconciled to Maco’s financial
statement and paid without offset to the party entitled thereto and will not be
paid through adjustment to the calculation of the Share Purchase Price
installments under Section 2.08(b).
2.07 Escrow. Purchasers will hold back from payments of the
Share Purchase Price, the Asset Purchase Price, and the 2005 Design Expenses
(collectively, “Aggregate Purchase Price”), as elsewhere provided
herein, an amount equal to 10% of the Aggregate Purchase Price (the “Holdback
Amount”). Purchasers will deposit
the Holdback Amount in an escrow account with Interbanca S.p.A. or such other
escrow account as agreed to by Purchasers and Sellers in writing (“Escrow
Agent”) pursuant to an escrow agreement (“Escrow Agreement”) substantially
in the form attached hereto as Exhibit A.
The Holdback Amount will be released to Sellers or to Purchasers no
later than July 1, 2005 as provided in the Escrow Agreement. In addition, after Sellers transfer of the
Share to Purchasers at the Closing, Purchasers on Closing shall pledge such
Shares until the payments are completed under Section 12.02; or will otherwise
provide on Closing a letter of undertaking of such payments by a reputable bank.
2.08 Share Purchase Price
Payment. Purchasers will pay the
Share Purchase Price as follows:
(a) on
April 15, 2005 Purchasers will pay €500,000 (“Fixed Payment”),
allocated and paid 90% to Fingen Apparel N.V. and 10% to the Escrow Account;
(b) on
July 1, 2005 and thereafter on each January 30 and June 30,
commencing with January 30, 2006 and ending with June 30, 2009,
Purchasers will pay an amount, if any, equal to 11.1% of the difference between
(i) the Share Purchase Price and (ii) the Fixed Payment.
2.09 The
parties acknowledge and agree that the calculations of the Adjusted Net Worth, the
adjustments contemplated in Section 2.02 and the purchase price for the
Licensed Businesses as contemplated in Section 3.04 represent an internal
agreement between Purchasers and Sellers in the context of a complex
transaction.
ARTICLE III
ASSET SALE
3.01 Multiple Jurisdictions. The Licensed Businesses are owned and
conducted directly by Sellers or through their Affiliates in multiple
jurisdictions in Western Europe. Certain
of the Transferred Assets will be conveyed by one or more of Sellers’
Affiliates. A list of the Transferred
Assets owned by such Affiliates together with identification of the Affiliates
owning and transferring such assets is set forth on Schedule 3.01. The Transferred Assets include without
limitation assets located in Italy (the “Italian Assets”), France (the “French
Assets”), England (the “English Assets”), the Netherlands (the “Dutch
Assets”), and Switzerland (the “Swiss Assets”). Sellers will cause their Affiliates to, and
Purchasers will or will cause one or more of their designees to, enter into
separate and individual conveyance agreements under the local law and in the
language of such jurisdictions (each a “Conveyance Agreement”) effecting
the transfer or other conveyance of the Transferred Assets; provided that
Purchasers will acquire the Dutch Assets by purchasing all of the capital stock
of Fingen Apparel Retail B.V., a Netherlands company (“DutchCo”);
provided further that the Italian Assets will be acquired by Guess Italia and
that the entity designated by the Purchasers to acquire the French Assets, the
English Assets, the Dutch Assets and the Swiss Assets and all necessary details
thereof shall be transmitted to Sellers on or before December 31, 2004. Each Conveyance Agreement will be
substantially to the same effect and purpose as this Agreement, but with such
variations as may be reasonably acceptable to Purchasers to satisfy the
requirements of local law and of normal practice of each country.
3.02 Purchase and Sale of
Transferred Assets. Sellers shall
transfer, assign, convey or deliver or where necessary will cause one or more
of their Affiliates to transfer, assign, convey or deliver to Purchasers (or their
designee(s)) in accordance with Section 3.01, and Purchasers do, or will cause their
designee(s) to, purchase, acquire, and accept from Sellers (or Sellers’
Affiliates)
all of their right, title, and interest in and to the following properties,
assets, and contracts, whether tangible or intangible, and wherever located, to
the extent used in the Licensed Businesses (collectively the “Transferred
Assets”), all free and clear of Liens other than Permitted Liens, including
without limitation the items specified on Schedule 3.02, but excluding
(i) the Excluded Assets as defined in Section 3.03 and (ii) all
assets and liabilities exclusively owned by Maco:
(a) all
inventories of the Licensed Businesses, including without limitation all
apparel, clothing, accessories, goods, parts, and other supplies (whether in
the possession or control of Sellers or others) that are owned, used or held by
Sellers or any of Sellers’ Affiliates as part of or for use in connection with
the Licensed Businesses (the “Inventories”) including without limitation
the Inventories set forth on Schedule 3.02(a);
(b) all
packing materials, shipping materials, machinery, equipment, furniture,
furnishings, fixtures, automobiles, trucks, vehicles, cars, handling equipment,
computer hardware and software, parts, and all items of personal tangible
property owned, leased, used or held for use by Sellers or any of Sellers’
Affiliates in connection with the Licensed Businesses (the “Equipment”),
including without limitation the Equipment set forth on Schedule 3.02(b);
(c) (i) all
patents and all applications therefor, if any, and all inventions made prior to
the Closing Date by employees of Sellers, if any, which, in either case, are
used in the conduct of the Licensed Businesses and owned or licensed by Sellers
or any one or more of their Affiliates as of the Closing Date; (ii) all
copyrights and registrations and applications therefor, including all copyright
works which were created prior to the Closing Date by employees of the Sellers
or any one or more of their Affiliates, which are used in the conduct of the Licensed
Businesses, and which are in the possession of or owned by or licensed to
Sellers or any one or more of their Affiliates as of the Closing Date, if any;
(iii) all trademarks, registered or unregistered, adopted for use in the
conduct of the Licensed Businesses which are owned by or licensed to Sellers or
any one or more of their Affiliates as of the Closing Date, if any, and all
trademark registrations therefor, or applications for trademark registrations, if
any, together with the goodwill of the Licensed Businesses associated
therewith; (iv) all unpatented inventions, trade secrets, confidential and
proprietary information and know-how, formulae, processes, procedures, research
records, records of invention, test information, market surveys, software, and
confidential information, writings, and other works that originated out of, or
are in the possession of, used in the Licensed Businesses and owned by Sellers
or any one or more of their Affiliates as of the Closing Date, if any; and
(v) all rights to sue third parties for infringement with respect to the
foregoing, excluding the GUESS name and GUESS trademark, including without
limitation all such items described in clauses (i)-(v) set forth on
Schedule 3.02(c);
(d) all
rights in, to and under the Material Contracts, together with all other
agreements of Sellers or any one or more of their Affiliates (other than this
Agreement) relating to the Licensed Businesses, subject to Section 3.06
and to Purchasers’ obligations under the Contract Assignment;
(e) all
ownership or leasehold interests, as the case may be, of Sellers or any one or
more of their Affiliates in the real property set forth on Schedule 3.02(e),
and all improvements, fixtures, and fittings on such property, and easements,
rights of way, and other appurtenants thereto;
(f) all
marketing and sales materials, advertising materials, catalogues and sales
brochures of the Licensed Businesses;
(g) all
permits, licenses, license applications, approvals, certifications, product
registrations, and product and/or service clearances used in the conduct of the
Licensed Businesses, including without limitation those set forth on Schedule 3.02(g),
to the extent the same are transferable;
(h) all
books, records, manuals, files, and other documentation, whether written,
electronic or otherwise, of the Licensed Businesses, including without
limitation customer records, supplier lists, distributor lists, purchase and
sale records, price lists, correspondence, quality control records, research
and development files, drawings, blueprints, and designs;
(i) all
prepaid expenses, advance payments, if any, and prepaid items of Sellers or any
one or more of their Affiliates specifically related to the Licensed Businesses
including without limitation those set forth on Schedule 3.02(i) and all
security and other deposits paid in connection with the ownership or leasehold
interests set forth on Schedule 3.02(e);
(j) all
rights, claims, and credits to the extent relating to the Licensed Businesses,
or to any Transferred Assets, including without limitation all rights in and to
goods sold, leased, or returned after the Closing Date or the Transfer Date,
whichever is applicable, in the operation or conduct of the Licensed Businesses;
all rights, claims, and credits arising under insurance policies; and all
guarantees, representations, warranties, indemnities, and similar rights in
favor of Sellers or any one or more of their Affiliates to the extent relating
to the Licensed Businesses or to any Transferred Assets; and
(k) all
shares, and rights to acquire shares or to direct the disposition of shares or
the voting rights of shares, of capital stock of DutchCo presently held jointly
or severally, directly or indirectly, by Sellers or any one or more of their
Affiliates.
3.03 Excluded Assets. Notwithstanding anything in this Agreement to
the contrary, Sellers and their Affiliates will retain all right, title, and
interest in and to all of, and will not
transfer to
Purchasers or their Affiliates or designees any property or property right,
whether tangible or intangible, except the Shares and the Transferred Assets (“Excluded
Assets”).
3.04 Asset Purchase Price.
(a) The
Asset Purchase Price will be an amount equal to the sum of (i) €10,000,000,
(ii) the London Leasehold amount, (iii) the Amsterdam Leasehold amount,
and (iv) an amount equal to the value of the Inventories as of each applicable
Transfer Date. For purposes of this
Section 3.04(a), the determination of the value of all such Inventories
will be based on Maco’s actual costs of all such Inventories, including costs
for customs, duty and freight, plus 5% of such actual costs to cover overhead,
handling and shipping costs, as determined by the Auditors (the “Asset
Purchase Price”). The inventory of accessories and Guess Collection
products in the Licensed Businesses will be valued based on the actual costs
from the applicable vendor plus actual shipping charges, if any, as determined
by the Auditors. A physical inventory
will be performed ten (10) days prior to the transfer of each of the Licensed
Businesses to Purchaser and/or its Affiliates (the “Transfer Date”) by
TNT or other comparable independent third party firm and utilized by the
Auditors in the determination of the value of such inventories based on the
lower of (a) cost of first quality Inventories and (b) the market value of such
Inventories.
(b) The
Asset Purchase Price will be payable on the 10th business day after
the date upon which the applicable Transferred Assets have been transferred by
Sellers or their Affiliates to Purchasers and their designee(s), as follows:
(i) with
respect to the Italian Assets, an amount equal to the sum of (A) €7,155,000 and
(B) value of the Inventories included in the Italian Assets and determined in
Section 3.04(a), allocated and paid 90% to Sellers and 10% to the Escrow
Account;
(ii) with
respect to all other Transferred Assets (except for the London Leasehold Amount
and the Amsterdam Leasehold Amount), an amount equal to the sum of (A) €2,700,000
and (B) the value of the Inventories (excluding the Inventories included in the
Italian Assets) determined in Section 3.04(a), allocated and paid 90% to
Sellers and 10% to the Escrow Account; and
(iii) with
respect to the London Leasehold Amount, an amount equal to the sum of €145,000
for capital expenditures already incurred on or before October 1, 2004.
In addition, Purchasers agree to replace
Seller’s bank guarantees, if existing, to secure the leases of the Licensed
Businesses.
(c) “London
Leasehold Amount” means the aggregate amount properly accrued by Sellers or
any one or more of their Affiliates for costs paid after October 1, 2004
and prior to the Transfer Date for capital improvements to the premises covered
by the London lease. Purchaser’s portion
of this amount for capital expenditures shall not exceed €819,000. In addition, Purchasers agree to replace
Seller’s bank guarantee to secure the London lease in the amount of Pounds Sterling
277,594. For the avoidance of doubt, on
the Transfer Date, the sum due in payment of the London Leasehold Amount will be
increased by the value of the inventory in the London store calculated pursuant
to Section 3.04(a), if any, on the Transfer Date.
(d) “Amsterdam
Leasehold Amount” means the aggregate amount properly accrued by Sellers or
any one or more of their Affiliates for costs incurred for the “key-money” paid
or to be paid to procure the Amsterdam store, and for all capital expenditures
for the store, provided that Purchaser’s portion of this amount shall not
exceed €550,000. In addition, Purchaser
agrees to replace Seller’s bank guarantee to secure the Amsterdam lease in the
amount of €81,272. Since the transfer of
the Amsterdam Licensed Business will take place by means of transfer from
Fingen Apparel N.V. to Guess Europe B.V., the consideration due to Fingen
Apparel N.V. for the sale of the DutchCo Shares will be equal to the above
amount of €550,000, plus the value of inventory calculated pursuant to Section
3.04(a) plus/minus any profit/loss of the operations of DutchCo from
incorporation to the Transfer Date adjusted eliminating the “key money” effect
of €550,000 plus/minus any debts/credits.
(e) Purchasers
and Sellers agree to allocate the Asset Purchase Price (and all other capitalized
costs) among the Transferred Assets for Tax purposes in accordance with the
allocation schedule set forth on Schedule 3.04(e). Purchasers and Sellers agree that such
allocation will be conclusive and binding on them and their respective
Affiliates for purposes of federal, state, local, and foreign Tax returns and
that neither they nor their respective Affiliates will voluntarily take any
position inconsistent therewith. Purchasers
and Sellers agree to, or cause their respective Affiliates to, prepare and
timely file all applicable U.S. Internal Revenue Service and other governmental
authority forms, to cooperate with each other in the preparation of such forms,
and to furnish each other with a copy of such forms prepared in draft, within a
reasonable period prior to the filing due date thereof. Purchasers and Sellers agree to promptly
notify each other in the event that any governmental authority takes or
proposes to take a position for Tax purposes that is inconsistent with the
allocation schedule set forth on Schedule 3.04(e).
3.05 Excluded Liabilities. Purchasers and their Affiliates and designees
do not and will not assume, will not be deemed to have assumed, and will have
no obligation or liability whatsoever for any claims, debts, liabilities,
obligations, expenses, contracts or commitments of
Sellers or any
one or more of their Affiliates of any kind, character or description (the “Excluded
Liabilities”) relating to the Licensed Businesses (except with respect to
DutchCo, whose claims, debts, liabilities, obligations, expenses, contracts or
commitments are set forth and described in Schedule 3.05). Sellers will control all claims, proceedings
and other matters relating to the Excluded Liabilities, and Purchasers will
refer all such matters to Sellers for handling and disposal.
3.06 Third Party Consents.
Notwithstanding anything to the contrary in this Agreement, this Agreement does
not constitute and will not be construed or enforced as an agreement to assign
or transfer any asset or liability, including without limitation a Material Contract
or other agreement referred to in Sections 3.02(d) or (e), or any claim, right
or benefit arising thereunder or resulting therefrom, if such an assignment or
transfer or an attempt to make such an assignment or transfer without the
consent or approval of a third party would constitute a breach or violation
thereof or affect adversely the rights of Purchasers or any of their Affiliates
or designees thereunder or thereto; and no action under this Agreement will
constitute an assignment or transfer of any Material Contract in the absence of
such consent or approval. Sellers will
give prompt notice to Purchasers of any written notice from any third party
alleging that the consent of such third party is or may be required in connection
with the transactions contemplated by this Agreement. Prior to and after the Closing, Sellers will
use their best efforts to obtain, at their expense, the consent of third
parties required to assign to Purchasers or novate, as applicable, each of the leases
relating to the Transferred Assets, including without limitation Material Contracts
and other agreements referred to in Sections 3.02(d) and (e). In the event that Sellers are unable to
assign or otherwise transfer any of such Transferred Assets to Purchasers,
Sellers and Purchasers will use their best efforts to enter into arrangements
sufficient to provide equivalent benefits and burdens to Purchasers and their
appropriate Affiliates or designees.
3.07 Prorations. All payments relating to periods on or prior
to the Effective Date or each applicable Transfer Date whether or not payable
after the Effective Date or Transfer Date, will be prorated between Sellers and
Purchasers on the basis of a 365-day year and the number of days elapsed as of
the Effective Date or Transfer Date, whichever is applicable. With respect to any products sold or services
rendered pursuant to any obligations of Sellers, Sellers and Purchasers will
use their respective best efforts to arrange for vendors to bill Sellers
directly on or prior to the Effective Date or the Transfer Date, whichever is
applicable, and Purchasers directly after the Effective Date or the Transfer
Date, whichever is applicable. Amounts due for supplies received from or
services rendered by third-party vendors of Sellers or their Affiliates on or
prior to the Effective Date or the Transfer Date, whichever is applicable, will
be for the account of and paid by Sellers.
3.08 Inapplicability to
Article II. The provisions of
Article III apply only to the Asset Sale and do not apply in any way to the Stock
Sale.
ARTICLE IV
CLOSING
4.01 Closing. Other than the transfer of the Licensed
Businesses, the consummation of the Stock Sale, the Asset Sale, and related
transactions contemplated by this Agreement (the
“Closing”)
will take place at Florence, Italy on January 1, 2005, or at such other place,
time or date as Sellers and Purchasers may mutually agree in writing. The Transfer Date for all of the Licensed
Businesses (other than the London Assets) shall occur on or before February 28,2005; for the avoidance of doubt the Transfer Dates of each individual Licensed
Business will be set by Sellers with ten business days’ prior notice and may
take place at various times and in different and various locations all on or
before February 28, 2005 (except for the London Assets). The Transfer Date for the London Assets shall
be no later than July 30, 2005. To
facilitate the Closing, Sellers, and Purchasers will have conducted a
pre-Closing meeting and conference during the last week of December 2004.
4.02 Deliveries by Sellers
and Purchasers. At the Closing,
Sellers will deliver to Purchasers or to the Escrow Agent those items described
on Schedule 4.02(A). At the Closing,
Purchasers will deliver to Sellers or to the Escrow Agent those items described
on Schedule 4.02(B).
4.03 Transfer Taxes and
Costs.
(a) As
between Sellers and Purchasers and their respective Affiliates, the Share
Purchase Price and the Assets Purchase Price are inclusive of all Transfer
Taxes that may be imposed upon or payable by Purchaser or their Affiliates or
designees in connection with all transactions contemplated by this Agreement, provided,
however, that Purchaser shall be responsible for paying applicable value
added tax with respect to all inventories and the Italian Assets, except the
Milan store, allocated as follows:
In Euro M.
Asset Purchase
VAT Assessable
Rome
2.300
0.460
Serravalle
0.448
0.090
Franciacorta
0.361
0.072
Castelromano
0.346
0.069
3.455
0.691
(b) In
particular, Sellers will pay when due, and will hold Purchasers and their
Affiliates and designees harmless from and against, all Transfer Taxes, except
value added tax to be paid by Purchasers as provided in Section 4.03(a), imposed
on any Person in connection with (i) the transfer of any of the
Transferred Assets or Shares pursuant to this Agreement, (ii) the delivery
of this Agreement, or (iii) the consummation of any of the other transactions
contemplated by this Agreement. Sellers will
file all necessary Tax Returns and other required documents with respect to
such Transfer Taxes in a timely manner and, upon the request of Purchasers,
promptly will provide them copies of such Tax Returns and documents and proof
of payment of such Transfer Taxes. To
the extent Sellers or their Affiliates cannot or do not timely file such
necessary Tax Returns or pay such Transfer Taxes, Sellers will promptly pay to
Purchasers on their demand the sum of (i) the amount of such unpaid
Transfer Taxes and
(ii) an amount such that,
after allowing for payment of all Taxes imposed on the receipt of items (i)
and (ii) by Purchasers or their Affiliates, the net amount received by
Purchasers after the imposition of such Taxes equals item (i).
(c) Purchasers
and Sellers will cooperate with each other in good faith to minimize Transfer
Taxes to the extent it is reasonably practicable to do so. Purchasers will provide to Sellers, and
Sellers will provide to Purchasers, all exemption certificates or resale
certificates with respect to Transfer Taxes that may be provided for under
applicable law. Such certificates will
be in the form, and will be signed by the proper party, as provided under
applicable law.
(d) To
the extent Sellers are not permitted to make such filings or pay such taxes,
the Share Purchase Price, the Asset Purchase Price, or both will be reduced so
as to afford Purchasers the economies equivalent of the benefits of Section 4.03(a)
and (b).
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLERS
Subject to the
explicit terms of the Disclosure Schedules, Sellers hereby represent and
warrant to Purchasers as follows.
5.01 Organization and Good
Standing. Schedule 5.01 contains a
true, complete, accurate, and detailed list of Sellers and each of their
Affiliates which collectively own the Shares and the Licensed Businesses
showing how such Shares or Licensed Businesses are owned by each of Sellers or
Affiliates of Sellers, and providing for each, its name, its jurisdiction of
incorporation, other jurisdictions in which it is authorized to do business,
and its capitalization (including the identity of each stockholder and the
number of shares held by each). Each of Sellers,
DutchCo, Maco and Fingen’s Affiliates relating to the Licensed Businesses,
subject to the disclosure in Schedule 5.01, is duly qualified or licensed to do
business as a foreign corporation, and each is in good standing as a foreign
corporation, in every jurisdiction in which the ownership of the Licensed
Businesses’ property or assets or the conduct of the Licensed Businesses
requires such qualification or license, except where the failure to be so
qualified would not have a Material Adverse Effect. As used in this Agreement, “Material
Adverse Effect” means any material adverse change in, or material adverse
effect on, the Licensed Businesses, or the financial condition, operations or
prospects of the Licensed Businesses taken as a whole. Each of Sellers has delivered to Purchasers
true, complete, and accurate copies of the respective certificates of
incorporation and by-laws or other organizational document (“Organizational
Documents”) of each of Sellers, DutchCo, Maco and the Fingen Affiliates
relating to the Licensed Businesses, as currently in effect.
5.02 Corporate Power and
Authority. Sellers have full
corporate power and authority to enter into this Agreement and all Closing
Documents, perform their obligations hereunder, or thereunder, to transfer,
assign, deliver and convey the Transferred Assets and carry out the
transactions
contemplated hereby. Each Affiliate of
Sellers who transfers any of the Shares or Transferred Assets pursuant to this
Agreement (each an “Affiliate Transferor”) has full corporate power and
authority to effect such transfers. The
execution and delivery of this Agreement, and each of the Closing Documents,
the performance by Sellers of their obligations hereunder or thereunder and the
consummation of the transactions contemplated herein have been duly authorized
by all corporate, shareholder, and other actions on the part of Sellers and any
such Affiliate Transferor, as applicable, required by applicable law and their
respective Organizational Documents.
This Agreement and the Closing Documents constitute the legal, valid and
binding obligation of Sellers, enforceable against each of them in accordance
with its terms, except (i) as the same may be limited by bankruptcy,
insolvency reorganization, moratorium or similar laws now or hereafter in
effect relating to creditor’s rights generally and (ii) that the remedy of
specific performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought.
5.03 No Violation. Neither the execution and delivery of this
Agreement or the Closing Documents nor the performance by Sellers of their
obligations hereunder or thereunder nor the consummation of the transactions
contemplated hereby or thereby will (a) contravene, conflict with, or
result in a violation of (i) any provision of the Organizational Documents
of Sellers or any Affiliate Transferor or (ii) any resolution adopted by
the board of directors (or similar management body) or the stockholders of Sellers
or any Affiliate Transferor violate, be in conflict with, constitute a default
under, permit the termination of, cause the acceleration of the maturity of any
debt or obligation of Sellers, any Affiliate Transferor, Maco, DutchCo, or the
Licensed Businesses, require the consent of any other party to, constitute a
breach of, create a loss of a material benefit under, or result in the creation
or imposition of any Lien, upon any property or assets of the Licensed
Businesses under any mortgage, indenture, lease, contract, agreement or
instrument to which Sellers, any Affiliate Transferor, Maco, DutchCo, or the
Licensed Businesses is a party or by which Sellers, any Affiliate Transferor,
Maco, DutchCo, or the Licensed Businesses, or any of either of their assets or
properties may be bound; (b) to the best of Sellers’ knowledge, violate
any statute or law or any judgment, decree, order, regulation or rule of any
court or governmental authority to which Sellers, any Affiliate Transferor,
Maco, DutchCo, or the Licensed Businesses is subject or by which Sellers, any
Affiliate Transferor, Maco, DutchCo, or the Licensed Businesses, or any of
either of their assets or properties are bound; or (c) result in the loss
of any material license or permit benefiting Maco, DutchCo, or the Licensed
Businesses. Sellers do not guarantee
that existing credit lines to Maco will be maintained after the change of
ownership of Maco.
5.04 Consents and Approvals
of Governmental Authorities. Except
as set forth and described in Schedule 5.04, no consent, approval or
authorization of, or declaration, filing or registration with, any governmental
or regulatory authority is required to be made or obtained by any of Sellers or
Seller’s Affiliates, the Licensed Businesses or Maco in connection with the
execution, delivery and performance of this Agreement and the Closing Documents
by each of Sellers.
5.05 No Third Party
Consents. Except as set forth and
described in Schedule 5.05, no consent, approval, order or authorization of,
notice to or registration, declaration or filing with, any third party is
required to be obtained or made by or with respect to any of Purchasers or
Sellers in
connection with the execution and delivery by any of Purchasers or Sellers of
this Agreement or any Closing Document, or the consummation of the transactions
contemplated hereby or thereby or compliance by any of Purchasers or Sellers of
the terms hereof or thereof, except where the failure to obtain any consent,
approval, order or authorization, or to give notice, or to make any registration,
declaration or filing would not reasonably be expected to have a Material
Adverse Effect on any of Purchasers or Sellers, would not prevent or delay any
of Purchasers’ or Sellers’ ability, or, to the best knowledge of any of the
Purchasers or Sellers’ ability, to consummate the transactions contemplated
hereby or would not result in any liability, cost or expense to any of
Purchasers or Sellers (other than liabilities and obligations not in excess of €50,000
in the aggregate).
5.06 Litigation. Except for the Callaert Litigation, and the
Studio 3 litigation, there are no actions, claims, proceedings (collectively “Actions”)
pending, or to the knowledge of Sellers, threatened, against Sellers or any of
their Affiliates relating to the Licensed Businesses or any of their respective
assets, properties or rights before any court, arbitrator, mediator or
administrative or governmental body which could have a Material Adverse Effect
on the Licensed Businesses or Maco’s Assets or the business conducted by
Maco. There is no Action pending or
threatened against Sellers or any of their Affiliates or any of their respective
assets, properties or rights before any court, arbitrator, mediator, or
administrative or governmental body that questions or challenges the validity
of this Agreement or any actions taken or proposed to be taken by Sellers
pursuant to this Agreement. Further,
there is no investigation pending against Sellers or any of their Affiliates,
or any of their respective assets, properties or rights by any governmental
unit with investigative authority.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF SELLERS AS TO
MACO, DUTCHCO, AND THE LICENSED BUSINESSES
Subject to the
explicit terms of the Disclosure Schedules, Sellers hereby represent and warrant
to Purchasers as follows.
6.01 Maco Capitalization. Except as set forth and described in Schedule
6.01, the authorized capital stock of Maco as of the Closing Date consists
solely of 3,000,000 shares of common stock, with a par value of €0.52 per share,
all of which are issued and outstanding.
All such issued and outstanding shares have been duly authorized, are
validly issued, fully paid, and nonassessable and have been issued in
compliance with all applicable securities laws.
No options, warrants, conversion privileges, commitments, preemptive
rights, plans or other agreements or rights presently outstanding of any
character exist providing for the purchase, issuance or sale of (a) any
shares of the capital stock of Maco or (b) any securities of any kind
convertible or exchangeable or exercisable for any shares of the capital stock
of Maco. No phantom stock or similar
rights exist with respect to Maco. None
of the outstanding equity securities or other securities of Maco was issued in
violation of any applicable law or regulation.
6.02 Ownership of Shares. All of the outstanding shares of capital
stock of Maco are issued and registered in the name of the following owners:
Owner
Number of Shares
Fingen Apparel N.V.
2,700,000
Guess Italia S.r.l.
300,000
Fingen Apparel N.V. owns the Shares, beneficially and of record, free
and clear of any Liens.
6.03 Title to Shares. Fingen Apparel N.V. is, and will be on the
Closing Date, the record and beneficial owner of the Shares free and clear of
any Liens. Upon the sale and delivery of
the Shares in accordance with the terms of this Agreement, Fingen Apparel N.V.
will convey to Guess Italia good and marketable title in and to the Shares free
and clear of all Liens.
6.04 No Subsidiaries or
Investments. Neither Maco nor
DutchCo owns any subsidiaries or any securities or other investments in other
companies, partnerships, joint ventures or other business entities.
6.05 DutchCo Capitalization. The authorized capital stock of DutchCo as of
the Closing Date consists solely of €100,000 divided into 200 shares of common
stock, with a par value of €500 per share, of which 40 shares are issued and
outstanding. All such issued and
outstanding shares have been duly authorized, are validly issued, fully paid,
and nonassessable and have been issued in compliance with all applicable
securities laws. No options, warrants,
conversion privileges, commitments, preemptive rights, plans or other agreements
or rights presently outstanding of any character exist providing for the
purchase, issuance or sale of (i) any shares of the capital stock of
DutchCo or (ii) any securities of any kind convertible or exchangeable or
exercisable for any shares of the capital stock of DutchCo. No phantom stock or similar rights exist with
respect to DutchCo. None of the
outstanding equity securities or other securities of DutchCo was issued in
violation of any applicable law or regulation.
6.06 Ownership of DutchCo
Shares. Fingen Apparel N.V. owns all
of the DutchCo Shares, which shares are free and clear of any Liens.
6.07 Title to DutchCo
Shares. Fingen Apparel N.V. is, and
will be on the Closing Date, the record and beneficial owner of the DutchCo
Shares free and clear of any Liens. Upon
the sale and delivery of the DutchCo Shares in accordance with the terms of
this Agreement, Fingen Apparel N.V. will convey to Guess Europe B.V., a
Netherlands company, good and marketable title in and to the DutchCo Shares
free and clear of all Liens. Guess
Europe B.V. shall then change the name of DutchCo within ninety (90) days after
transfer.
6.08 Financial Statements.
(a) Sellers
have delivered to Purchaser: (i) audited
balance sheets of Maco as of December 31, 2002 and December 31, 2003, for each
of the years 2002 and 2003, and the related audited statements of income,
changes in stockholders’ equity, and statements of sources and application of
funds for each of the fiscal years then ended, including in each case the notes
thereto, together with the report thereon of Price Waterhouse for the year 2002
and KPMG for the year 2003, independent certified public
accountants (collectively “Financial
Statements”), and (ii) an unaudited balance sheet of Maco as of September30, 2004, and the related consolidated statements of income, changes in
stockholders’ equity, and statements of sources and applications of funds for
the period then ended (the “Internal Financial Statements”). Such Financial Statements and notes
(A) have been prepared pursuant to the rules of Italian law applicable to
the preparation of financial statements, as integrated by, and interpreted and
applied in accordance with, the accounting principles issued by the Commissions
of the “Consiglio Nazionale dei Dottori Commercialisti”and
the “Consiglio Nazionale dei Ragionieri”
except as set forth and described on Schedule 6.08(a) reflecting deviations
from Italian GAAP, and (B) fairly present the financial condition and the
results of operations, changes in stockholders’ equity, and statements of
sources and applications of funds of Maco as of the respective dates of and for
the periods referred to in such financial statements, all in accordance with Italian
GAAP; the financial statements referred to in this Section 6.08(a) reflect the
consistent application of such accounting principles throughout the periods
involved. No financial statements of any
Person other than Maco are required by Italian GAAP to be included in the
financial statements of Maco.
(b) Attached
hereto as Schedule 6.08(b) are the unaudited income statements of the Licensed
Businesses and the schedule of assets and liabilities (except for the London
and Amsterdam stores) for the years ended December 31, 2002 and December 31, 2003
which were prepared in accordance with local applicable GAAP and which are
based upon and consistent with information contained in the consolidated
audited financial statements of Sellers for the same period. The gross revenues less returns, credits, and
allowances (“Net Sales”) of the Licensed Businesses, calculated in
accordance with local applicable GAAP, for the twelve (12) month period ending December31, 2003 were in excess of €9,000,000.
(c) Sellers
shall deliver to Purchaser ten days prior to the Transfer Date of DutchCo, the
most recently available balance sheets of DutchCo and the related audited
statements of income, changes in stockholders’ equity, and statement of sources
and application of funds for calculation of the consideration for the sale of
DutchCo. A fully audited balance sheet of the
operations of DutchCo up to and including the Transfer Date will then be
prepared by Sellers within thirty days from the Transfer Date and the parties then
shall adjust the amounts due, if any.
6.09 No Undisclosed
Liabilities. Except as set forth and
described in Schedule 6.09, the Licensed Businesses, DutchCo and Maco have, and
immediately prior to the Closing Date or the Transfer Date, whichever is
applicable, will have, no debts, liabilities or obligations of any nature,
absolute, accrued, contingent or otherwise.
6.10 Absence of Certain
Changes. From October 1, 2004 to the
date of this Agreement, each of the Sellers, Maco, DutchCo, and each of the
Affiliate Transferors have:
(a) conducted
its business in the ordinary course consistent with past practices;
(b) other
than in the ordinary course of business and as disclosed in Schedule 6.10(b),
not canceled or compromised any debts, or waived any claims or rights, or sold,
assigned or transferred any properties or assets of the Licensed Businesses;
(c) not
offered any irregular inducement to gain new customers for the Licensed
Businesses;
(d) not
made any change in any method of accounting or accounting practice relating to
the Licensed Businesses;
(e) not
suffered any damage, destruction or property loss materially adversely
affecting the Licensed Businesses;
(f) not
granted a material increase in the compensation of any officer or employee of
the Licensed Businesses, except for those granted in the ordinary course of
business; and
(g) not
made any capital expenditures for additions to property, plant or equipment of
the Licensed Businesses that in the aggregate exceed €100,000.
6.11 Title to Properties. Sellers and their Affiliates have good and
marketable title to all of the properties and assets constituting the
Transferred Assets, DutchCo has good and marketable title to or right to use
pursuant to contractual agreement all the property and assets used in or
necessary for the conduct of DutchCo’s business (“DutchCo’s Assets”) and
Maco has good and marketable title to or right to use pursuant to contractual
agreement all the property and assets used in or necessary for the conduct of
Maco’s business or included in the Financial Statements (“Maco’s Assets”). The Conveyance Agreements in the aggregate
transfer all right, title, and interest (as applicable) in the Transferred
Assets to Purchasers and their designee(s) in the aggregate.
6.12 Liens. None of (a) the Transferred Assets; (b) Maco’s
Assets; and (c) DutchCo’s Assets are subject to any Lien other than Permitted
Liens. When used in this Agreement, “Lien”
means any mortgage, pledge, security interest, conditional sale or other title
retention agreement, encumbrance, lien, easement, claim, right, covenant,
restriction, right of way, warrant, option or charge of any kind, except for
(i) liens for Taxes and other governmental charges that are not yet due
and payable or that may hereafter be paid without penalty, (ii) mechanics’,
workmen’s, repairmen’s, warehousemen’s, carriers’ or other similar liens
arising in the ordinary course of business or being contested in good faith,
(iii) the rights, if any, of third-party suppliers or other vendors having
possession of equipment of the Licensed Businesses, or (iv) such other
Liens set
forth on
Schedule 6.12 (clauses (i) through (iv) being referred to collectively as “Permitted
Liens”).
6.13 Patents, Trademarks,
Trade Names. To the extent that such
items constitute (a) Transferred Assets, (b) Maco’s Assets, or (c)
DutchCo’s Assets, Schedule 6.13 contains a true and complete list of
(i) all present patents, trademark registrations, and copyright
registrations owned by any of the Sellers, Maco, DutchCo, or Sellers’
Affiliates that are material to the Licensed Businesses or Maco’s business; all
applications for registration thereof and all intellectual property license
agreements relating thereto and (ii) all material agreements in existence
as of the Closing Date relating to technology, know-how or processes that are
necessary to conduct the Licensed Businesses, Maco’s business, or DutchCo’s
business that any of the Sellers, Maco, DutchCo or Sellers’ Affiliates is licensed
or authorized to use in the Licensed Businesses, Maco’s business, or DutchCo’s
business by third parties or licenses or authorizes other to use. No licenses, sub-licenses or agreements with
third parties exist as of the date of this Agreement that were entered into in
respect of the Licensed Businesses, Maco’s business, or DutchCo’s business
granting rights in such patents, trademarks or copyrights included in the
Transferred Assets, except as described in Schedule 6.13. Seller has the right to use all information
and know-how that are used in the conduct of the Licensed Businesses, Maco’s
business, or DutchCo’s business as currently conducted. Except as set forth in Schedule 6.13, all
Transferred Assets, Maco’s Assets and DutchCo’s Assets listed on Schedule 6.13
are transferred free and clear of all Liens other than Permitted Liens. The operations of the Licensed Businesses as
conducted as of the Closing Date do not infringe any third-party patents, trade
secrets or other third-party intellectual property rights.
(a) The
technology licenses and agreements set forth on Schedule 6.14 and the leases
set forth in Schedule 6.15 comprise in the aggregate a true and complete
list and description of:
(i) all
contracts or agreements with distributors, brokers, manufacturer’s
representatives, sales representatives, service or warranty representatives or
others engaged in the sale, distribution, marketing of the Licensed Businesses’,
Maco’s business, or DutchCo’s business products and/or services that involve
annual payments in excess of €75,000;
(ii) any
outstanding purchase order relating to the Licensed Businesses or issued by the
Licensed Businesses, Maco’s business, or DutchCo’s business in excess of
€50,000;
(iii) all
joint venture or similar agreements relating to the Licensed Businesses or to
which Maco or DutchCo is a party or by which Maco’s Assets or DutchCo’s Assets
are bound that provide for the manufacture, marketing, sale or distribution of
any products or services of the Licensed Businesses;
(iv) all
collective bargaining agreements to which Maco or DutchCo is a party or which
relate to or legally bind the Licensed Businesses;
(v) all
consulting agreements to which Maco or DutchCo is a party or that relate to or
legally bind in any way the Licensed Businesses that provide individually for
payments of €25,000 or more per year, other than as described in Schedule 6.14;
(vi) all
contracts and agreements to which Maco or DutchCo is a party or that relate to
or legally bind in any way the Licensed Businesses that reflect obligations for
borrowed money, obligations for other indebtedness or obligations of guarantee;
(vii) all
contracts to which Maco or DutchCo is a party or that relate to or legally bind
in any way the Licensed Businesses relating to construction-in-progress of
capital assets in excess of €50,000; and
(viii) all
other material contracts to which Maco or DutchCo is a party or that relate to
or legally bind in any way Maco’s Assets, DutchCo’s Assets or the Transferred
Assets.
(b) Sellers
have made available to Purchasers true and complete copies of the documents
identified on Schedules 6.14 and 6.15 (collectively the “Material Contracts”).
Material Contracts shall mean any
contracts that involve payment in excess of €50,000.
(c) None
of Maco, DutchCo or any of Sellers or their Affiliates has received written
notice of any asserted claim of default by such Person with respect to any of
the Material Contracts which claim calls for the receipt or payment of more
than €5,000.
(d) There
is no contract or agreement that constitutes or contains a Transferred Asset or
to which Maco, DutchCo or an Affiliate Transferor is a Party that is:
(i) a
contract granting the other party or any third person “most favored nation” or
similar cross-reference benefit status;
(ii) a
contract pursuant to which following the Closing would limit the ability of
Purchasers to compete with any person or to engage in any activity or business,
or pursuant to which any benefit is required to be given or lost as a result of
so competing or engaging;
(iii) a
contract providing for “exclusivity” or under which Maco, DutchCo or the
Licensed Businesses are restricted, or which after the Closing would restrict
Purchasers with respect to distribution,
marketing, development or
manufacture other than exclusive agency agreements and exclusive distribution
agreements;
(iv) a
contract granting a third party any license to any patent, invention,
copyright, trademark or other intellectual property that is not limited to the
internal use by such third party;
(v) a
contract providing for payments of royalties to third parties that is not
terminable on 90-days’ or less notice except for the License Agreement;
(vi) a
contract providing for confidential treatment by Sellers or any of their Affiliates
of third party information other than non-disclosure agreements or privacy
agreements pursuant to applicable law entered into by Sellers in the ordinary
course of business consistent with past practice;
(vii) a
contract containing (whether in the contract itself or by operation of law) any
provisions dealing with a “change of control” or similar event with respect to
Maco, DutchCo or all or any part of the Licensed Businesses which would apply
in any way to the Licensed Businesses, the Transferred Assets, or Purchasers
following the Closing except for the License Agreement; or
(viii) a
contract other than the Closing Documents with (1) any shareholder of
Sellers, (2) any Affiliate of Sellers, or (3) any director, officer
or employee of Sellers (other than (x) employment agreements otherwise
covered above, offer letters of at will employment or benefit plans or
(y) invention assignments, confidentiality agreements or non disclosure
agreements for the benefit of Sellers).
(e) Each
of the Material Contracts is valid, binding and in full force and effect and is
enforceable by Sellers or any of their Affiliates as applicable in accordance
with its terms (subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws affecting creditors’
rights generally from time to time in effect and to general principles of
equity, including concepts of materiality, reasonableness, good faith and fair
dealing regardless of whether considered in a proceeding in equity or at
law). Sellers and their Affiliates have
performed in all material respects all obligations required to be performed by them
under the Material Contracts, and no event has occurred that would render them
(with or without the lapse of time or the giving of notice, or both) in breach
in any material respect or default thereunder and, no event has occurred that
would render any other party to a Material Contract (with or without the lapse
of time or the giving of notice, or both) in breach in any material respect or
default thereunder. As
of
the date hereof, no party thereto has received any written notice of the
intention of any party to terminate any Material Contract or that any party
considers that any other party is in breach in any material respect or default
thereunder or in potential breach in any material respect or default
thereunder. Complete and correct copies
of all the Material Contracts together with all modifications and amendments
thereto to the date of this Agreement have been delivered to Purchasers. Each of the Material Contracts is assignable
without any condition or liability to Purchasers.
6.15 Personal Property Leases. Schedule 6.15 contains a true and
complete list of all leases pursuant to which Sellers or any of their
Affiliates lease personal property for use by or in connection with the
Licensed Businesses or Maco’s business.
Sellers have not received any written notice from any person or entity
asserting that Sellers are in material default under any such lease.
6.16 Environmental Matters. Each of the Sellers and their Affiliates is
in compliance with all local, county, state, provincial and/or federal laws,
regulations or other legal binding requirements of any jurisdiction in which
any of Maco, the Transferred Assets or the Licensed Businesses are or have ever
been owned, located or operated (or at any time were owned, located or
operated), and which govern the existence of or provide a remedy for release or
emissions of Hazardous Substances (as defined below), or which relate to the
protection of persons, natural resources or the environment, the management of
Hazardous Substances, or other activities involving Hazardous Substances
(collectively, “Environmental Laws”).
Each of the Sellers and their Affiliates have obtained all permits,
licenses, and other authorizations that are required under Environmental Laws
with respect to the conduct of the Licensed Businesses and is in compliance in
all respects therewith. Set forth in
Schedule 6.16 are all Actions about which Sellers have received written
notice that are pending before any court or governmental agency or threatened
for (a) noncompliance by the Licensed Businesses with any Environmental
Law or (b) relating to the release into the environment by the Licensed
Businesses of any Hazardous Substance, whether or not occurring at or on a site
at any time owned, leased, occupied, or operated by the Licensed
Businesses. As used in this Agreement, “Hazardous
Substance” means any substance, material or waste that is regulated under
any Environmental Law or is deemed by any Environmental Law to be “hazardous,”“toxic,”
“a “contaminant,”“waste,” or a “pollutant” (or words with similar meaning) and
includes, without limitation, petroleum or petroleum products, PCBs, PCB
wastes, asbestos, asbestos containing products, and radioactive substances.
6.17 Licenses, Permits and
Authorizations. Sellers and their
Affiliates have all material licenses, permits, and authorizations
(collectively, “Permits”) required to conduct the Licensed Businesses
and Maco’s business as it is now being conducted. All such Permits are valid and in full force
and effect. Schedule 6.17 contains a
true and complete list of all such Permits.
There is no Action, pending or threatened, that disputes the validity of
such Permits.
6.18 Accounts Receivable. (i) Each of DutchCo and Maco owns all of
its respective accounts receivable of DutchCo and Maco unless such accounts
receivable have been assigned to factoring companies or were assigned as shown
in Schedule 6.10(b), (ii) all such accounts receivable represent bona fide
claims for sales or other charges arising in the ordinary course of their
respective businesses, and (iii) except as reflected in the reserves of
the financial statements
described in Section 6.08(a), DutchCo and
Maco have not received any notice to the effect that such accounts receivable
are subject to counterclaims or setoffs.
6.19 Defaults. None of the Sellers or their Affiliates related
to the Licensed Businesses are in default under any
Material Contract. No other party to any
Material Contract to which any of the Sellers or their Affiliates are a party
and which relates to the Licensed Businesses is in default under or in breach
of any provision thereof.
6.20 Suppliers and
Customers. Sellers have no knowledge
that any supplier or customer of the business of Maco and the Licensed
Businesses, respectively, expects to materially reduce their business with Maco
or the Licensed Businesses, respectively.
6.21 Inter-Company
Transactions. Schedule 6.21
describes all agreements and contracts that provide for payments in excess of
€50,000 per annum and that provide for the sale by the Licensed Businesses of,
or the purchase of the Licensed Businesses from, any Affiliate of Sellers of,
any goods or services. Also set forth on
Schedule 6.21 are the Licensed Businesses’ Affiliates that purchased from or
sold to the Licensed Businesses during fiscal year 2003 more than €50,000 of
goods or services and the amount of such purchases or sales.
6.22 No Third Party Options. There are no existing agreements, options,
commitments or other rights granting any person the right to acquire either the
right, title, or interest in or to any of Maco, DutchCo or the Transferred
Assets.
6.23 Operation of the
Licensed Businesses. The Transferred
Assets comprise all assets (other than the Excluded Assets) used in connection
with, necessary for the continued conduct of, or otherwise material to, the
Licensed Businesses as currently conducted.
Sellers have conducted, and conduct, the Licensed Businesses only
through the Affiliates identified in Schedule 6.23, and not directly
through any other subsidiaries or Affiliates of Sellers.
6.24 Brokers and Finders. Sellers are not parties to, nor in any way
obligated to make any payment relating to, any contract for the payment of any
broker’s or finder’s fee in connection with the origin, negotiation, execution
or performance of this Agreement or the Closing Documents.
6.25 Tax Matters. All Taxes due and payable as of or prior to December31, 2004 for Maco and DutchCo have been paid or will be paid or will be accrued
as of or prior to December 31, 2004.
6.26 Books and Records. The books of account, minute books, stock
record books, and other records of each of the Sellers, Maco, DutchCo, and the
Transferor Affiliates, all of which have been made available to Purchasers, are
complete and correct and have been maintained in accordance with sound business
practices and internal controls. The
minute books of each of the Sellers, Maco, DutchCo, and the Transferor
Affiliates contain accurate and complete records of all meetings held of, and
corporate action taken by, the stockholders, the Boards of Directors, and
committees of the Boards of Directors of each of the Sellers, Maco, DutchCo,
and the Transferor Affiliates, and no meeting of any such stockholders, Board
of Directors, or committee has been held for which minutes have not been
prepared and are not
contained in such minute books. At the Closing, all of those books and
records will be in the possession of each of the Sellers, Maco, DutchCo and the
Transferor Affiliates.
6.27 No Material Adverse
Change. Since January 1, 2004, and
the Closing Date or Transfer Date, whichever is applicable, there has not been
any material adverse change in (i) the Licensed Businesses or
(ii) the business, operations, properties, prospects, assets, or condition
of Maco, and no event has occurred or circumstance exists that may result in
such a material adverse change.
6.28 Compliance with Laws. None of the Sellers, Maco, DutchCo or any
Affiliate Transferor, is or has at any time within the last 5 years been, or
has received any notice that it is or has at any time within the last 5 years
been, in violation of or in default under, in any material respect, any law or
order applicable to any of them or any of their respective assets and
properties.
6.29 Litigation. Other than the Callaert Litigation and the
Studio 3 Litigation, there are no material actions, suits, claims,
investigations or legal, administrative or arbitration proceedings pending against
any of the Sellers, Maco, DutchCo or any Affiliate Transferor, or any of such
respective Person’s assets or business, whether at law or in equity, or before
or by any federal, state, municipal, local, foreign or other governmental
department, commission board, bureau, agency or instrumentality, nor do any of
them know of a threat of, or any basis for, any such action, suit, claim,
investigation or proceeding.
6.30 Insurance. Schedule 6.30 sets forth the following information
with respect to each insurance policy (including policies providing property,
casualty, liability, and workers’ compensation coverage and bond and surety
arrangements) to which Maco or DutchCo is, or at any time within the past 5 years
has been, a party, a named insured, or otherwise the beneficiary of coverage:
(a) the name, address, and telephone number of the agent;
(b) the name of the insurer, the name of the policyholder, and
the name of each covered insured;
(c) the policy number and the period of coverage;
(d) the scope (including an indication of whether the coverage
was on a claims made, occurrence, or other basis) and amount (including a
description of how deductibles and ceilings are calculated and operate) of
coverage;
(e) a description of any retroactive premium adjustments or
other loss-sharing arrangements;
(f) with
respect to each such insurance policy: (i) the policy is legal, valid,
binding, enforceable, and in full force and effect; (ii) the policy will
continue to be legal, valid, binding, enforceable, and in full force and effect
on identical terms following the consummation of the transactions
contemplated by this Agreement;
(iii) neither Maco, DutchCo nor any other party to the policy is in breach
or default (including with respect to the payment of premiums or the giving of
notices), and no event has occurred which, with notice or the lapse of time,
would constitute such a breach or default, or permit termination, modification,
or acceleration, under the policy; and (iv) no party to the policy has
repudiated any provision thereof; and
(g) Maco
has been covered during the past eight (8) years and DutchCo has been covered since
its incorporation by insurance in scope and amount customary and reasonable for
the businesses in which it has engaged during the aforementioned period, and
Schedule 6.30 describes any self-insurance arrangements of, or affecting,
Maco and/or DutchCo.
6.31 Employees.
(a) Schedule
6.31 contains a list of names of each officer and employee of Affiliate
Transferor, including Maco and DutchCo, having an annual base salary or wages
of at least €50,000 as of the Closing Date, together with each such person’s
position or function, length of service, annual base salary or wages, any
incentive or bonus arrangement, length of any required notice of termination of
employment, and any obligations, severance or other amounts payable upon
termination of employment with respect to such person in effect on such
date. Except as disclosed in
Schedule 6.31, no material change has been made in the rate of
remuneration or the benefits (including pension benefits) or in the other terms
of engagement of any such employee since the date of the Financial Statements,
no such employee has been given notice of termination of his employment
contract, and no such employee has given notice of her or his intent to
terminate his or her employment contract.
Subject to applicable laws or collective bargaining agreements and
except as disclosed in Schedule 6.31, Sellers shall terminate, on the
business day immediately after notification from Purchasers, all agreements
with the employees specified in the notification.
(b) Sellers
have complied with the terms of the employment contracts and with the terms of
the contracts with the temporary work agencies providing any person or services
to the Licensed Businesses and have complied with all applicable labor laws and
with the terms and conditions of any mandatory plan or any mandatory collective
bargaining agreement or any other rules applicable to the employees of the
Licensed Businesses, including, without limitation, applicable regulations on
the length of the work week, workers compensation, overtime, safety and
security measures, and the hiring of interim workers.
(c) Except
as disclosed in Schedule 6.31, Sellers do not provide, and have not
undertaken to provide, and have not been referred by any governmental
agency, trade associations or
collective bargaining organization to provide, any material profit sharing,
deferred compensation, stock option, stock appreciation, stock purchase,
performance share, bonus or other incentive plan, severance pay, health care,
group insurance, workers compensation or other social, welfare, savings,
pension or retirement benefits, other similar plans or, more generally,
material rights of advantage to any employee of the Licensed Businesses,
including termination, indemnity or prior notice rights, under which any
employee or former employee of Sellers working for the Licensed Businesses has
or may have any current or future rights to benefits, except for those required
by law or pursuant to any collective bargaining agreement, the application of
which is mandatory and a copy of which is attached in Schedule 6.31. The term “plan” shall include any plan,
program, arrangement, contract, agreement, policy or understanding, whether
formal or informal, mandatory or voluntary, written or unwritten. Each of the plans listed in Schedule 6.31
has been maintained in all material respects, by its terms and operation, in
accordance with applicable law. Except
as disclosed in Schedule 6.31, there are no agreements with any employee
whatsoever constituting a promise of future benefits, bonus, indemnity or pay
raise. All amounts vested under the
plans referred to in Schedule 6.31 are listed in such Schedule 6.31
and Sellers have fulfilled all of their obligations under such plans, which are
sufficiently funded or accrued.
(d) Purchaser
acknowledges and accepts that the personnel presently employed in the Licensed
Business, except for DutchCo employees, as listed in Schedule 6.31 will
formally terminate employment from Affiliate Transferor on the Transfer Date
and will be paid by Affiliate Transferor all wages, salary, insurance,
termination pay and holiday rights as accrued on the Transfer Date. Such personnel may be employed by Purchaser,
at Purchaser’s sole option, to run the Licensed Business after the Transfer
Date. Regarding DutchCo employees,
Purchaser may, at its sole option, elect to continue or terminate employment of
these employees and shall provide Sellers prior to the Transfer Date with
Purchaser’s election regarding DutchCo employees.
6.32 Employment Law Matters. There is no strike, labor dispute, slowdown
or stoppage pending or threatened against Maco, DutchCo or the Licensed
Businesses.
6.33 Certain Payments. Since their respective dates of
incorporation, neither Maco nor DutchCo have and none of Maco’s or DutchCo’s
respective directors, officers, agents, or employees, or to Sellers’ knowledge
any other person associated with or acting for or on behalf of Maco or DutchCo,
has directly or indirectly (a) made any contribution, gift, bribe, rebate,
payoff, influence payment, kickback, or other payment to any person, private or
public, regardless of form, whether in money, property, or services (i) to
obtain favorable treatment in securing business, (ii) to pay for favorable
treatment for business secured, (iii) to obtain special concessions or for
special concessions already obtained, for or in respect of Maco or DutchCo or
any Affiliate of Maco or DutchCo, or (iv) in violation of any law or legal
requirement; or
(b) established or maintained any fund or asset that has not
been recorded in the books and records of Maco or DutchCo.
6.34 Disclosure. No representation or warranty of any of the
Sellers in this Agreement and no statement in the Disclosure Schedules omits to
state a material fact necessary to make the statements herein or therein, in
light of the circumstances in which they were made, not misleading. There is no fact known to either Seller or
their Affiliates that has specific application to either Seller or any of Maco,
DutchCo or the Transferor Affiliates or the Licensed Businesses (other than
general economic or industry conditions) and that materially adversely affects
or, as far as either Seller can foresee, materially threatens, the assets,
business, prospects, financial condition, or results of operations of Maco,
DutchCo or the Licensed Businesses.
6.35 Relationships With Related Persons.
No Seller or any Affiliate or related person of any Seller, Maco, or
DutchCo has, or since the first day of the next to last completed fiscal year
of Maco and DutchCo has had, any interest in any property (whether real,
personal, or mixed and whether tangible or intangible), used in or pertaining
to Maco’s business, DutchCo’s business or the Licensed Businesses. No Seller or any Affiliate or related person
of any Seller, Maco or DutchCo is, or since the first day of the next to last
completed fiscal year of Maco and DutchCo has owned (of record or as a
beneficial owner) an equity interest or any other financial or profit interest
in, a Person that has (a) had business dealings or a material financial
interest in any transaction with Maco or DutchCo or any of the Transferor
Affiliates other than business dealings or transactions conducted with the
Seller’s group of companies in the ordinary course of business consistent with
past practice with Maco or DutchCo or any Transferor Affiliate at substantially
prevailing market prices and on substantially prevailing market terms, or (b) engaged
in competition with any of Maco, DutchCo or any Transferor Affiliate with
respect to any line of their products or services (a “Competing Business”)
in any market presently served by them; with the exception of the Sellers’
competing activities under Sicem
Industriale S.p.A. (which is a knitwear company only) or the Cotton
Belt, Calvin Klein, Gaultier Jeans, Socièté
Pour le Tricot, SPT, Janis, Luisa Lorenzi, Trekka, Codice, Saffo,
Point and Tessitore trademarks. Sellers
hereby agree not to engage in a Competing Business other than under the
trademarks listed above until July 1, 2007.
None of the Sellers or any of Maco, DutchCo or their respective
Affiliates is a party to any Contract with, or has any claim or right against
Maco or DutchCo.
6.36 Conduct in the
Ordinary Course. Since October 1,2004 the businesses and operations of Maco, DutchCo, and the Licensed
Businesses have been conducted in the ordinary course consistent with past
practice and to preserve intact the Transferred Assets. Sellers will assist, cooperate with, and
provide information to Guess Italia regarding the operations and management of
the Licensed Businesses, Maco, and DutchCo to ensure the smooth transition of
ownership of the Licensed Businesses and Maco after the Closing.
6.37 Bank
Accounts/Invoicing Systems.
(a) Sellers
will have segregated as of the Effective Date, all funds of Maco from funds of
Fingen and Fingen’s Affiliates (other than Maco) into separate bank
accounts. Sellers shall have executed
any and all instruments and documents necessary to designate officers of Maco
and/or Purchasers as the sole signatories on such bank accounts.
(b) Sellers
have segregated all invoicing systems of Maco such that on the Effective Date
the only invoicing systems being operated by Maco will pertain to Maco’s Transferred
Assets.
6.38 Resolution of
Liabilities. Sellers have paid,
settled or otherwise resolved not less than 90% of Maco’s liabilities and
contingent liabilities existing as of the Effective Date to the extent such
liabilities are not covered by Maco’s Financial Statements or by Maco’s audited
accounts as of December 31, 2004. Sellers shall be 100% responsible for the
Callaert Litigation and any agency or distributorship contract disputes. Purchasers agree to have Maco act in good
faith regarding obligations arising under any agency or distributorship
contracts to which Maco is a party. Any
contingent liabilities of Maco existing prior to the Effective Date shall be
borne 90% by Sellers and 10% by Purchasers.
6.39 Sufficiency of Assets. The Transferred Assets constitute all of the
assets, tangible and intangible, of any nature whatsoever, necessary to operate
or currently used in, Licensed Businesses in the manner presently operated by the
Licensed Businesses and includes all of the rights, properties and assets of the
Licensed Businesses.
6.40 Personal Property Leases. Schedule 6.40 contains a true and
complete list of all leases pursuant to which Sellers or any of their
Affiliates lease for the Licensed Businesses, Maco’s business or DutchCo’s
business any personal property. Sellers
have not received any written notice from any person or entity asserting that
Sellers are in material default under any such lease.
6.41 Equipment; Condition
of Tangible Assets. All machinery,
equipment, Inventory, and other material, tangible personal property included
in the Transferred Assets, DutchCo’s Assets, and Maco’s Assets, whether or not
reflected in the Financial Statements, is in good operating condition and
repair, ordinary wear and tear excepted, is maintained in accordance with good
industry practices, except for obsolete items and items of below-standard
quality, all of which have been written off or written down to net realizable
value in the accounting records of Sellers, Maco, DutchCo and Sellers’
Affiliates as of the Closing Date, as the case may be and is suitable for the
purposes for which it is presently used.
Such personal property, constituting all machinery, equipment, Inventory
and other tangible personal property necessary for the conduct of the Licensed
Businesses, Maco’s business, and DutchCo’s business as currently conducted, is
physically located at or about the places of Licensed Businesses and Maco’s
business and is owned outright by Sellers, Maco and Sellers’ Affiliates or is
validly leased by Sellers, Maco and Sellers’ Affiliates.
6.42 Pre-2004 Guess Inventory. Sellers represent and warrant that all
inventory acquired prior to the 2004 GUESS collections has been sold or
disposed of (other than for use as archival samples) prior to the Closing Date
in accordance to the terms and conditions of the Manufacturing License and
Distribution Agreement between Purchasers and Maco, dated June 1, 1997, as
amended (the “License Agreement”) and acknowledge and agree that
Purchasers are not responsible for the purchase of any inventory prior to the
2004 GUESS collections. Sellers further
represent and warrant that Maco has timely performed all obligations under the
License Agreement, and Maco has timely paid, or will pay, all unaccrued amounts
due under the License Agreement for the 2004 Contract Year (as defined in the
License Agreement) that become due
and payable in
2005 within 30 days after the expiration of the 2004 Contract Year pursuant to
the terms and conditions of the License Agreement. Purchasers acknowledge and approve that Euro
Cormar S.p.A. (“Euro Cormar”) an Affiliate of Sellers, shall purchase pre-2004 inventory
and second choice inventory from Maco prior to the end of the financial year
2004. The sale from Maco to Euro Cormar
of such inventory and the sale of other inventory from Maco to Haggiag shall
not be deemed to be Closeouts under the License Agreement. The distribution and sales by Euro Cormar
under this Section, including distribution to the Licensed Businesses, if any,
shall be subject to Purchaser’s prior written approval. Section 8.2 of the
License Agreement regarding advertising percentage reduction based upon the
opening of three (3) free-standing GUESS retail stores in France, England and
Germany shall be waived as if these openings did occur, and Sellers and
Purchasers hereby mutually waive any liabilities or obligations for any advertising
overages or shortages for the 2002-2004 Contract Years.
6.43 Operation of the Licensed
Businesses. The Transferred Assets
comprise all assets (other than the Excluded Assets) used, or held for use in
connection with, necessary for the continued conduct of, or otherwise material
to, the Licensed Businesses as currently conducted. Sellers have conducted, and conduct, the Licensed
Businesses only through the Affiliates identified in Schedule 5.01, and not
through any other subsidiaries or Affiliates of Sellers.
6.44 Real Property. Schedule 6.44 is a true and complete list of
all real property leases, subleases, licenses, and other agreements related to
the Licensed Businesses, Maco, and DutchCo (the “Real Property Leases”)
under which Sellers or their Affiliates use or occupy or have the right to use
or occupy, now or in the future, any real property (land, buildings, and other
improvements covered by the Real Property Leases being herein called the “Leased
Real Property”) in connection with the Licensed Businesses, business of Maco
and business of DutchCo. Sellers have delivered to Purchasers true, correct and
complete copies of all Real Property Leases (including all modifications
thereof and all amendments and supplements thereto). Except as set forth in Schedule 6.44, no
consent of or notice to any party is required to effectuate the valid
assignment of the Real Property Leases to Purchasers or their designee, and no
event has occurred and no condition exists that, with the giving of notice or
the lapse of time or both, would constitute a default or termination event
under any Real Property Leases. Maco,
DutchCo and Affiliate Transferor have good and valid title to the leasehold
estates under, and good and valid interest in, the Leased Real Property free
and clear of all Liens other than Permitted Liens. All certificates of occupancy, permits,
licenses, franchises, approvals and authorizations required or appropriate to
have been issued to enable the Leased Real Property to be lawfully occupied and
used for the purposes for which they are currently occupied and used have been
lawfully issued and are in full force and effect. Neither Maco, DutchCo, nor the Affiliate
Transferor have received any written notice from any governmental authority of
any violation of any law affecting the Leased Real Property and neither Maco,
DutchCo, nor the Affiliate Transferor have written notice or have knowledge of
any pending, threatened or contemplated condemnation proceeding affecting the Leased
Real Property or any party thereof or of any sale or other disposition of the Leased
Real Property or any portion thereof in lieu of condemnation. No portion of the Leased Real Property has
suffered any material damage by fire or other casualty that has not theretofore
been completely repaired and restored to its original condition. There are no encroachments, facts or other
conditions upon any of the parcels comprising the Leased Real Property that an
accurate survey or careful physical inspection thereof would reveal that would
interfere in any material respect with the use, occupancy or
operation thereof as currently used,
occupied and operated. No portion of any
improvement encroaches upon any property not included within the Real Property
or upon the area of any easement affecting the Leased Real Property. Except as set forth on Schedule 6.44A, neither
Sellers nor any of their Affiliates owe any money to any architect, contractor,
subcontractor or materialman for labor or materials performed, rendered or
supplied to or in connection with any Leased Real Property.
6.45 Inventories. Except for inventory reserves reflected on
the Financial Statements, the Maco Inventories and those Inventories which are included
in Transferred Assets are valued on the books of Maco, DutchCo and the
Affiliate Transferor in accordance with Maco’s, DutchCo’s and the Affiliate
Transferor’s standard accounting practices, consistently applied, and are of a
quality and quantity usable and salable in the ordinary course of business,
except for obsolete items and items of below-standard quality, all of which
have been written off or written down to net realizable value on the financial statements
as of December 31, 2004 or the Transfer Date, as the case may be. All inventories not written off have been
priced at the lower of cost or market value on a last in, first out basis. The quantities of each item of inventory
(whether raw materials, work-in-process, or finished goods) are not excessive,
but are reasonable in the present circumstances of Maco, DutchCo, and the
Affiliate Transferor.
6.46 Absence of Violations
of Quotas and Visas. The Affiliate
Transferor, with respect to the Licensed Business, is not in violation in any
material respect of any visa or quota restrictions under any trade agreements,
including, without limitation, the Multifiber Arrangement or other arrangements
under the General Agreement on Tariffs and Trade.
6.47 No Tariffs or Duties. With respect to the Licensed Businesses, Affiliate
Transferor’s payment of all tariffs and duties are current in all
jurisdictions, and Affiliate Transferor does not owe any tariffs or duties
other than those incurred in the ordinary course of business (a) under any
trade agreements; and (b) to any customs services.
6.48 Financially Solvent.
Sellers are, and as of the Closing Date
will be, financially solvent and able to pay their debts as they fall due.
6.49 Industry Standards. Maco and DutchCo have complied with good
international business practices prevalent in, and international industry
standards relevant to, the industry in which Maco and DutchCo operate,
including without limitation, any in respect of trade, labor, and safety.
ARTICLE VII
REPRESENTATIONS
AND WARRANTIES OF PURCHASERS
Purchasers
hereby jointly and severally represent and warrant to Sellers on the Closing
Date as follows.
7.01 Existence. Each of Guess and Guess Italia is a
corporation duly organized, validly existing and in good standing under the
laws of its place of incorporation; and each has full corporate power and
authority to conduct its business as it is now being conducted and to own or
lease its properties and assets. Each of
Guess and Guess Italia is duly qualified or
licensed to do business as a foreign
corporation and in good standing as a foreign corporation, as may be necessary
for the consummation of the transactions contemplated by this Agreement.
7.02 Corporate Power and
Authority. Purchasers have full
corporate power and authority to enter into this Agreement, perform their
obligations hereunder, purchase the Shares and Transferred Assets and perform
their obligations under this Agreement.
The execution and delivery of this Agreement, the performance by
Purchasers of their obligations hereunder and the consummation of the
transactions contemplated herein have been duly authorized by all corporate,
shareholder, and other actions on the part of Purchasers required by applicable
law, their respective certificates of incorporation and their respective
by-laws. This Agreement constitutes the
legal, valid, and binding obligation of Purchasers, enforceable against them in
accordance with its terms, except (a) as the same may be limited by
bankruptcy, insolvency reorganization, moratorium or similar laws now or
hereafter in effect relating to creditor’s rights generally and (b) that
the remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefore may be brought.
7.03 No Violation. Neither the execution and delivery of this
Agreement, the performance by Purchasers of their obligations hereunder nor the
consummation of the transactions contemplated hereby will (a) contravene
any provision of the respective certificates of incorporation or by-laws of
Purchasers; (b) violate, be in conflict with, constitute a default under,
permit the termination of, cause the acceleration of the maturity of any debt
or obligation of Purchasers under, require the consent of any other party to, constitute
a breach of, create a loss of a material benefit under, or result in the
creation or imposition of any Lien upon any property or assets of Purchasers
under any mortgage, indenture, lease, contract, agreement, instrument or
commitment to which any Purchaser is a party or by which any Purchaser, or any
of its assets or properties may be bound; (c) to Purchasers’ knowledge,
violate any statute or law or any judgment, decree, order, regulation or rule
of any court or governmental authority to which any Purchaser is subject or by
which Purchasers, or any of their assets or properties are bound;
(d) violate any contract or agreement to which any of Purchasers’
directors, officers or shareholders are bound; or (e) violate any stock
exchange or commission rule or regulation.
7.04 Consents and Approvals
of Governmental Authorities. Except
as set forth on Schedule 7.04, no consent, approval or authorization of, or
declaration, filing or registration with, any governmental or regulatory
authority is required to be made or obtained by Purchasers or their Affiliates in
connection with the execution, delivery or performance of this Agreement by
Purchasers.
7.05 Financially Solvent. Purchasers are, and as of the Closing Date
will be financially solvent and able to pay their debts as they become due.
7.06 Jenken Litigation. Purchasers are aware that as a consequence of
litigation started in France by the firm SA Jenken against one of the
Affiliates of Sellers, FA France Sarl, lessee of the Paris store, for the sale
of products allegedly bearing the infringing trademark “Vintage”, Purchasers
have been called as additional defendants in such litigation. So long as Purchasers are involved in the
defense of the suit, Purchasers have agreed to cooperate with Sellers and to
offer any required support and assistance
for the full defense of such litigation.
Any settlement of the Jenken litigation must be agreed upon and
consented to by Purchasers.
7.07 Conduct in the
Ordinary Course. Subsequent to the
Effective Date and prior to the Transfer Date for each applicable Licensed
Business, Purchasers agree to have Maco supply Guess apparel to the Licensed
Businesses in the ordinary course consistent with past pricing and payment
policies. Purchasers will also cause Maco
to supply Indigo Blue retail stores owned or franchised by Sellers for one
season subsequent to the Effective Date consistent with past pricing and
payment policies.
ARTICLE VIII
SURVIVAL OF
REPRESENTATIONS AND WARRANTIES,
LIMITATIONS, RELEASE AND INDEMNIFICATION
8.01 Survival of
Representations and Warranties.
Notwithstanding the execution and delivery of this Agreement and the
occurrence of the Closing, the representations and warranties of Sellers
contained in this Agreement, and in any agreement or document delivered in
connection with the transactions contemplated by this Agreement, will survive
the Closing and will remain in full force and effect until 6 months after the
expiration of any applicable statutes of limitations. Notwithstanding the immediately preceding
sentence, the representations and warranties in Articles V and VI will continue
in full force and effect forever (even if Purchasers or its agents or
representatives knew or had reason to know of any misrepresentation or breach
of warranty at the time of Closing) and all environmental representations and
warranties will continue in full force and effect for 10 years from and after
the Closing Date. Purchasers’ right to
indemnification or other remedy based on the representations, warranties, and
covenants contained herein will not be affected by any investigation conducted
with respect to, or any knowledge acquired at any time, whether before or after
the execution and delivery of this Agreement or the Closing Date, with respect
to the accuracy, inaccuracy of or compliance with, any such representation,
warranty or covenant.
8.02 Maco Board Releases.
(a) Sellers
and Purchasers hereby jointly and severally irrevocably and forever release and
discharge and/or will cause the release and discharge, and will procure a
similar release from Maco to be delivered at Closing for, each and every person
who served as director or supervisory board member (“Collegio sindacale”)
of Maco prior to the Closing Date from all claims in law or in equity, demands,
actions, causes of action, obligations, contracts, damages, liabilities,
losses, costs or expenses of every nature and kind whatsoever, whether known or
unknown, suspected or unsuspected (“Claims”) that Sellers jointly or
severally have or have ever had against such person as of the Closing Date.
(b) Sellers
will obtain and deliver to Purchasers at the Closing an irrevocable and
unconditional release and discharge of Maco, duly and validly executed by each
person who served as a director or supervisory board member of Maco or any
subsidiary of Maco from all Claims such persons, respectively, have or have had
against Maco or any subsidiary of Maco.
(c) Each
of the Sellers and Purchasers covenants that it will not make, assert, or
maintain against any person or entity that they have released in Sections 8.02(a)
or 8.02(b), any claim, demand, action, cause of action, suit or proceeding
arising out of or in connection with the matters herein released, and Sellers and
Purchasers agree to promptly dismiss any existing actions and proceedings.
(d) Each
of the Sellers expressly waives all rights and benefits to which it may be
entitled under Section 1542 of the Civil Code of the State of California, which
provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
8.03 General Indemnification.
(a) Sellers
hereby jointly and severally indemnify and hold harmless Purchasers, their
Affiliates, and their respective officers, directors, employees, and advisers, within
the percentage liability set in Section 6.38 above and for the amount in excess
of an initial cumulative allowance of €30,000 from and against all losses,
liabilities, costs, damages and expense (including reasonable legal fees and
expenses) (collectively, “Losses”) suffered or incurred by any such
indemnified party to the extent arising from, connected with or related to (i) breach
of any representation or warranty of Sellers in this Agreement; (ii) breach
of any covenant or undertaking of Sellers in this Agreement; (iii) the
Excluded Liabilities; and (iv) the Callaert Litigation;
(b) Sellers
will be responsible for any opposition lodged by any of Sellers’ creditors with
respect to any liability to be retained by Sellers and Sellers will proceed at
their own cost satisfying any such creditor claims in such manner as to avoid
Purchasers being obliged to satisfy the claims of any such creditors. Sellers will indemnify and hold harmless
Purchasers for any liability, costs or expenses incurred by Purchasers with
respect to any such claims; and
(c) Purchasers
hereby jointly and severally indemnify and hold harmless Sellers, their
Affiliates, and their respective officers, directors, employees and advisors within
the percentage liability set in Section 6.38 above from
and
against all Losses suffered or incurred by any such indemnified party to the
extent arising from (i) breach of any representation or warranty of Purchasers
in this Agreement; and (ii) breach of any covenant or undertaking of Purchasers
in this Agreement.
All Losses
suffered by one or more Affiliates of Purchasers (which will include Maco after
the Closing) or one or more Affiliates of Sellers will be deemed to have been
directly suffered by Purchasers or Sellers, as appropriate, on a
dollar-for-dollar basis and will entitle Purchasers and Sellers to
indemnification from the Indemnifying Party pursuant to Article VIII.
Notwithstanding
Section 8(a) and 8(b) above, Sellers shall have no liability for any Losses in
excess of €7,000,000; however, this limit shall not apply to (a) any breach of
any Sellers’ representations and warranties of which Seller had actual knowledge
at any time prior to the date on which such representation and warranty is
made; (b) any intentional violation by Seller of any covenant or obligation; or
(c) the Callaert Litigation and any agency or distributor contract disputes
against Maco or its successor or assigns.
Notwithstanding
Section 8(c) above, Purchasers shall have no liability for any Losses in excess
of €1,000,000; however this limit shall not apply to (a) any breach of any
Purchasers’ representations and warranties of which Purchasers had actual knowledge
at any time prior to the date on which such representation and warranty is
made; and (b) any intentional violation by Purchasers of any covenant or
obligation.
8.04 Indemnification
Procedures. If an event or omission
(including, without limitation, any claim asserted or action or proceeding
commenced by a third party) occurs which a party (an “Indemnified Party”)
asserts to be an indemnifiable event pursuant to Section 8.03, the
Indemnified Party will provide written notice to the party obligated to provide
indemnification under this Agreement (an “Indemnifying Party”), setting
forth the nature of the claim and the basis for indemnification under this
Agreement. The Indemnified Party will
give such written notice to the Indemnifying Party immediately after it becomes
aware of the existence of any such event or occurrence. Such notice will be a condition precedent to
any obligation of the Indemnifying Party to act under this Agreement but will
not relieve it of its obligations under the indemnity except to the extent that
the failure to provide prompt notice as provided in this Agreement prejudices
the Indemnifying Party with respect to the transactions contemplated by this
Agreement and to the defense of the liability. In case any such action is brought against any
Indemnified Party and it notifies the Indemnifying Party of the commencement
thereof, the Indemnifying Party will be entitled to participate therein and, to
the extent that it wishes, to assume the defense thereof with counsel selected
by it and, after notice from the Indemnifying Party to the Indemnified Party of
such election so to assume the defense thereof, the Indemnifying Party will not
be liable to the Indemnified Party for any legal expenses of other counsel or
any other expenses subsequently incurred by such Indemnified Party in
connection with the defense thereof. The
Indemnified Party agrees to cooperate fully with (and to provide all relevant
documents and records and make all relevant personnel available to) the
Indemnifying Party and its counsel in the defense of any such asserted claim at
no additional cost to the Indemnifying Party.
No Indemnifying Party will consent to the entry of any judgment or
enter into any
settlement with respect to any such asserted claim without the prior written
consent of the Indemnified Party (a) if such judgment or settlement does
not include as an unconditional term thereof the giving by each claimant or
plaintiff to each Indemnified Party of a release from all liability in respect
to such claim or (b) if, as a result of such consent or settlement,
injunctive or other equitable relief would be imposed against the Indemnified
Party or such judgment or settlement could materially interfere with or
materially adversely affect the business, operations or assets of the
Indemnified Party. No Indemnified Party will
consent to the entry of any judgment or enter into any settlement with respect
to any such asserted claim without the prior written consent of the
Indemnifying Party.
8.05 Third Party Recoveries. If an Indemnified Party or an Indemnifying
Party makes a payment with respect to any claim under the representations or
warranties set forth herein and the other party subsequently receives from a
third party or under the terms of any insurance policy a sum in respect of the
same claim, the receiving party will repay to the other party such amount that
is equal to the sum subsequently received.
8.06 Satisfaction of
Indemnification Claims. Any
indemnification claims by Purchasers as the Indemnified Party under this
Article VIII will be satisfied at Purchasers’ sole option by any one or more of
the following: (a) reduction of the
amount of any payment due under Section 2.08(b), 3.04, or 12.01; and (b) payment
of cash by Sellers.
8.07 Right of Offset. Notwithstanding anything to the contrary
contained herein, with respect to any amount otherwise payable to Sellers under
Section 2.08, 3.04, or 12.01, Purchasers will have the right to withhold
payment of any amount otherwise payable under Section 2.08, 3.04, or 12.01 to
the extent of any unsatisfied claims of an aggregate amount of over €30,000 for
indemnification made by Purchasers against Sellers under this Article VIII
pending the final resolution of such claims.
Purchasers’ rights of withholding and offset set forth in the preceding
sentence will be without prejudice to, and not in limitation of, any other
rights that Purchasers may have against Sellers under this Agreement or
otherwise.
ARTICLE IX
CERTAIN
OBLIGATIONS OF THE PARTIES PRIOR TO CLOSING
Sellers and
Purchasers hereby covenant as follows.
9.01 Conduct in the
Ordinary Course. From the date of
this Agreement to the Closing Date or the Transfer Date, whichever is
applicable, except as consented to by Purchasers in writing, Sellers will, and
will cause their Affiliates to:
(a) cause the Licensed Businesses and Maco’s business to be
conducted in the ordinary course consistent with past practice and to preserve
intact the Transferred Assets and the assets of Maco;
(b) use
all reasonable efforts to keep available the services of each employee, agent,
representative, or consultant providing services to Maco or relating to the
Licensed Businesses, and preserve the relationships of Maco and Sellers or
their Affiliates relating to the Licensed Businesses with their
respective
customers, suppliers, creditors, employees and agents, and others, such that
their respective goodwill and their on-going respective operations will, in all
respects, be unimpaired following the Closing;
(c) confer with Purchasers prior to implementing operational
decisions of a material nature;
(d) otherwise report periodically to Purchasers concerning the
status of their reported business, operations and finances;
(e) make no material changes in management personnel without
prior consultation with Purchasers;
(f) maintain their respective assets in a state of repair and
condition that complies with applicable law and is consistent with the
requirements and normal conduct of their respective businesses;
(g) keep in full force and effect, without amendment, all
material rights relating to their respective businesses;
(h) comply with all applicable law and contractual obligations
applicable to the operations of their respective businesses;
(i) continue
in full force and effect their respective insurance coverage policies or
substantially equivalent policies;
(j) cooperate
with Purchasers and assist Purchasers in identifying the governmental
authorizations required by Purchasers to operate the Licensed Businesses from
and after the Closing Date and either transferring existing governmental
authorizations of Sellers to Purchasers, where permissible, or obtaining new
governmental authorizations for Purchasers;
(k) upon
request from time to time, execute and deliver all documents, make all truthful
oaths, testify in any proceedings, and do all other acts that may be reasonably
necessary or desirable in the opinion of Purchasers to consummate the
transactions contemplated hereby, all without further consideration; and
(l) maintain all books and records of Sellers and the Affiliate
Transferor relating to the Licensed Business and the business of Maco in the
ordinary course of business. Sellers
will promptly notify Purchasers of any event, condition or circumstance that,
individually or in the aggregate, is or would be material to the condition
(financial or otherwise), business, results of operations or prospects of Maco
or the Licensed Businesses.
9.02 Access to Information. Commencing from the date of this Agreement
and through the Closing or the Transfer Date, whichever is applicable, Sellers
will, and will cause their accountants, counsel, consultants, employees, agents
and Affiliates to
(a) grant
to Purchasers and their representatives, employees, counsel, and accountants,
reasonable access, during normal business hours and upon reasonable notice, to
the personnel, properties, contracts, books and records, and other documents
and data of Sellers and their Affiliates relating to the Licensed Businesses,
Transferred Assets, and Maco and the properties, assets, and financial
conditions of Sellers and any relevant Affiliate of Sellers;
(b) furnish Purchasers and their representatives with all their
financial and operating data and other information with respect to the Licensed
Businesses, Transferred Assets, and Maco;
(c) cooperate
with Purchasers and their representatives with their review of the Licensed
Businesses, Transferred Assets, and Maco; and
(d) keep Purchasers generally informed as to the operations of
the Licensed Businesses, and Maco.
9.03 Confidentiality Prior
to Closing. All parties hereto will,
and will cause its respective officers, representatives, advisors, and
Affiliates to, hold in confidence and not disclose to others for any reason
whatsoever, without the prior written consent of the other parties, any
non-public information received by it from the other parties in connection with
the transactions contemplated hereby, and will not use such information for any
purpose in the event that no Closing occurs under this Agreement, except than
as required by applicable law.
9.04 Prohibited
Transactions Prior to Closing or the Transfer Date. Except as otherwise contemplated by this
Agreement, as permitted with the prior written consent of Purchasers or in the
ordinary conduct of business, prior to the Closing or the Transfer Date,
whichever is applicable, Sellers will cause Maco, DutchCo or any Affiliate
Transferors not to:
(a) incur
any liabilities, obligations or indebtedness of any nature (whether absolute,
accrued, contingent or otherwise and whether due or to become due), except
items incurred in the ordinary course of business and consistent with past
practice, none of which will exceed €50,000 (counting liabilities or
obligations arising from one transaction or a series of related transactions,
and all periodic installments or payments under any lease or other agreement
providing for periodic installments or payments, as a single obligation or
liability), except in connection with the manufacture of apparel, accessories,
and other goods for Purchasers pursuant to purchase orders and/or written
fabric commitments provided by Purchasers in the ordinary course of business
(as to which there will not be any such dollar limitation);
(b) sell
any inventory or sell, lease, transfer or otherwise dispose of any other
Transferred Asset or any asset of Maco or DutchCo, provided that Maco may sell prior
to the Closing Date up to 22% of the number of units related to the signed purchase
orders for the 2005 spring/summer collection existing on the date hereof
(notwithstanding this 22% threshold, any and all sales over this percentage
amount shall be excluded from total sales and their consequent impact on Maco’s
results of operations as if these sales never occurred for purposes of
computing the Loss Amount and Adjusted Net Worth);
(c) acquire
or agree to acquire on behalf of Maco or DutchCo any assets that are material,
individually or in the aggregate, to Maco or DutchCo, or the Licensed
Businesses, other than fabric and other components necessary to manufacture and
or sell apparel, accessories or other goods pursuant to purchase orders issued
by Purchasers;
(d) modify,
amend or terminate any Material Contract listed in Section 6.14, or enter into
any other contract, agreement or commitment by which Maco, DutchCo, Affiliate
Transferee, or the Shares, DutchCo Shares, any Transferred Asset, or any asset
of Maco or DutchCo may be bound, other than purchase and sale orders entered
into in connection with the manufacture and sale of apparel, accessories, and
other goods for Purchasers pursuant to purchase orders issued by Purchasers;
(e) enter into any compromise or settlement of any action
related to the Licensed Businesses, the Shares or the Transferred Assets
(f) cancel any debt or waive any claim or right of substantial
value with respect to Maco, DutchCo, Sellers or Sellers’ Affiliates or with the
Licensed Businesses; or
(g) agree, whether in writing or otherwise, to do any of the
foregoing.
9.05 Cooperation. Each party hereto will use commercially
reasonable efforts to cause the transactions contemplated by this Agreement and
the Closing Documents to be consummated, and without limiting the generality of
the foregoing, to obtain all consents and authorizations of governmental
agencies and third parties, and to make all filings with and give all notices
to governmental agencies and third parties that may be necessary or reasonably
required in order to consummate the transactions contemplated by this
Agreement.
9.06 Competition Filings. The parties will make any filings required
under applicable anti-trust or competition laws and regulations in connection
with the transactions contemplated by this Agreement within 2 business days
after the date hereof. Each party will
furnish to the other parties such necessary information and reasonable
assistance as such other parties may request in connection with its preparation
of necessary filings or submissions to any governmental entity. Each party will pay its own fees incurred in
making its filings. Subject to the
parties’ confidentiality obligations provided in Section 12.07 and without
limiting the
foregoing, the parties will use their
commercially reasonable efforts to respond as promptly as practicable to all
inquiries from any applicable governmental agency in connection with any
requirements of all applicable laws and regulations.
9.07 Representations and
Warranties. The representations and
warranties of Purchasers and Sellers contained herein and in all Closing
Documents will be true and correct in all respects on and as of the Closing
Date and each Transfer Date, whichever is applicable, as though made at and as
of that date (other than such representations and warranties that contain
materiality or knowledge standards or qualifications, which representations and
warranties will be true and correct in all respects).
9.08 Notification. Between the date of this Agreement and the last
of the Transfer Dates, Sellers will promptly notify Purchasers in writing if
any of them becomes aware of (a) any fact or condition that causes or
constitutes breach of any of any Sellers’ representations and warranties made
as of the date of this Agreement or (b) the occurrence after the date of
this Agreement of any fact or condition that would or be reasonably likely to
(except as expressly contemplated by this Agreement) cause or constitute breach
of any such representation or warranty had that representation or warranty been
made as of the time of the occurrence of, or a Seller’s discovery of, such fact
or condition. Such notice will not
affect any rights of Purchasers under Article VIII and Article XIII.
During the same period, Sellers also will promptly notify Purchasers of the
occurrence of any breach of any covenant of Sellers in this Article IX or
of the occurrence of any event that may make the satisfaction of the conditions
in Article X impossible or unlikely.
9.09 No Negotiation. Until such time as this Agreement is
terminated pursuant to Article XIII, neither Sellers nor any of their
Affiliates will directly or indirectly solicit, initiate, encourage or
entertain any inquiries or proposals from, discuss or negotiate with, provide
any nonpublic information to or consider the merits of any inquiries or
proposals from any person (other than Purchasers) relating to any business
combination transaction involving any of them, including the sale by Sellers or
any of their Affiliates of the stock of Maco or any of their subsidiaries, or
the merger or consolidation of any of them, or the sale of their businesses or
any of the Transferred Assets (other than in the ordinary course of business). Sellers will notify Purchasers of any such
inquiry or proposal within twenty-four (24) hours of receipt or awareness of
the same by Sellers.
9.10 Best Efforts. Sellers will use their best efforts to cause
the conditions in Article X and Section 11.03 to be satisfied.
ARTICLE X
CONDITIONS TO
PURCHASERS’ OBLIGATIONS
The obligation
of Purchasers to proceed with the Closing or the Transfer Date, whichever is
applicable, and consummate the transactions at Closing or each Transfer Date
contemplated by this Agreement are subject to the satisfaction, or waiver by
Purchasers in Purchasers’ absolute discretion, of each of the following
conditions precedent.
10.01 Representations and
Warranties True. The representations
and warranties of Sellers in this Agreement and in any agreement or document
delivered in connection with the transactions contemplated by this Agreement
are true and correct in all material respects as of the Closing Date and each
Transfer Date, other than representations and warranties that expressly speak
as of a specific date or time (which need only be true and correct in all
material respects as of such date or time).
10.02 Performance. Sellers have performed and complied in all
material respects with all material agreements, obligations and conditions
required by this Agreement and in any agreement or document delivered in
connection with the transactions contemplated by this Agreement to be performed
or complied with by it on or prior to the date of the Closing or the Transfer
Date, whichever is applicable.
10.03 Material Adverse Change. There has been no material adverse change in
the Transferred Assets, the condition or prospects of the Licensed Businesses
as conducted by Sellers or their Affiliates, or in the assets, liabilities, or
business prospects of Maco.
10.04 Consents. All notices to, filings with and consents
from third parties or governmental agencies required to consummate the
transactions contemplated hereby will have been made or obtained.
10.05 No Litigation. Other than the Callaert Litigation and the
Studio 3 Litigation, there is no action, proceeding, hearing, investigation or
audit pending or threatened in any court before any national, federal, state,
provincial or local court, governmental agency, regulatory body or arbitrator
which seeks (a) to invalidate or set aside, in whole or in part, this
Agreement; (b) to restrain, prohibit, invalidate or set aside, in whole or
in part, the consummation of the transactions contemplated hereby; or
(c) to obtain substantial damages in connection therewith.
10.06 Maco Board. The present members of the board of directors
of Maco (the “Board”) (other than Maurice Marciano and Paul Marciano)
will have resigned, and Fingen Apparel N.V. will have caused the appointment to
the Board of new directors as designated prior to the Closing Date by Purchasers. The standing and alternate members of the
board of statutory auditors of Maco (the “Board of Statutory Auditors”)
will have resigned, and Fingen Apparel N.V. will have caused the appointment to
the Board of Statutory Auditors of new standing and alternate members as
designated prior to the Closing Date by Purchasers.
10.07 Board Approvals. The Boards of Director of each of the Sellers
will have approved the execution and delivery of this Agreement and the
performance of all transactions contemplated hereby.
10.08 Closing Documents. All Closing Documents will be in form and
substance reasonably satisfactory to Purchasers and their counsel.
10.09 Ancillary Agreements. Sellers and Maco will have entered into the
following agreements, each in form and substance satisfactory to Purchasers in
their sole discretion:
(a) An
Information Technology Services Agreement, substantially in the form attached
hereto as Exhibit B, relating to the management information
systems located at the Maco
Facility (as defined below) and containing the following terms: (i) as soon as possible following the
Closing and for no additional consideration, Sellers will assign and transfer
to Maco all software, information technology, computer systems, telephone
systems, and other hardware and equipment necessary for the daily operations of
Maco and the Licensed Businesses, including without limitation the design,
production, and accounting systems, as set forth on Schedule 10.09 (it being
specified, for the avoidance of doubt, that the management of the system
inclusive of the royalties for the use of the software license, will be to the
cost of Maco only after Maco’s receipt of the material set forth in Schedule
10.09 and the system supplied is capable of working independently pursuant to
the specifications contained in Schedule 10.09); (ii) without limiting the
foregoing, Sellers will separate Maco’s invoicing system from Sellers’
invoicing system and establish and create an independently functioning
invoicing system for Maco capable of performing all of Maco’s invoicing
services; (iii) until a fully operational independent information
technology system sufficient to operate and manage Maco’s daily operations is
supplied, Sellers will provide Maco with a cost free service permitting Maco to
manage and operate its daily operations and, once the fully operational system
is provided (and certified by a reputable information systems expert mutually
agreed upon by the parties and paid by Sellers) and Maco is operating
autonomously, Sellers shall be available to supply help and support upon call,
free of charge, for a period of four (4) months to ensure system reliability;
and (iv) Sellers will also provide on-site training and on-site and remote
technical support to Purchasers or their designees for the start up of the
independent system free of charge.
(b) A
lease Agreement, substantially in the form attached hereto as Exhibit C, whereby
Maco will lease certain real property located at Via Provinciale Lucchese 181,
Osmannoro, Italy (the “Maco Facility”) from Sellers or one of their
Affiliates for six years subject to cancellation at any time by either party
upon six months’ notice of termination, without penalty at a rent of €195,402 per
year (which Sellers represent and warrant is equivalent to the current
intercompany charge for rent of the Maco Facility from an Affiliate of Sellers
and Sellers agree to provide back-up substantiation for the rent amount prior
to the Effective Date).
(c) A
Warehousing and Logistics Agreement, substantially in the form attached hereto
as Exhibit D relating to certain warehousing and transition services at
the warehouse in Barberino, Italy whereby Maco shall continue storing and
distributing its products.
ARTICLE XI
CONDITIONS TO
SELLERS’ OBLIGATIONS
The
obligations of Sellers to proceed with the Closing and consummate the
transactions at Closing contemplated by this Agreement are subject to the satisfaction, or waiver by Sellers in Sellers’ absolute
discretion, of each of the following conditions precedent.
11.01 Representations and
Warranties True. The representations
and warranties of Purchasers in this Agreement and in any agreement or document
delivered in connection with the transactions contemplated by this Agreement
are true and correct in all material respects as of the Closing Date, other
than representations and warranties that expressly speak as of a specific date
or time (which need only be true and correct in all material respects as of
such date or time).
11.02 Performance. Purchasers have performed and complied in all
material respects with all agreements, obligations, and conditions required by
this Agreement and in any agreement or document delivered in connection with
the transactions contemplated by this Agreement to be performed or complied
with by it at or prior to the Closing.
11.03 Consents. All notices to, filings with and consents
from third parties or governmental agencies required to consummate the
transactions contemplated hereby will have been made or obtained.
11.04 Consideration. Purchasers have delivered to Sellers the items
set forth in Schedule 4.02(B).
ARTICLE XII
COVENANTS
12.01 2005 Fall/Winter
Collection. Purchasers agree to pay Sellers
within ten business days following receipt of back up documentation in an
amount not to exceed €1,500,000 for costs and expenses, including samples,
directly related to and incurred by Maco in connection with the design and
development of the 2005 Fall/Winter collection of GUESS apparel, accessories,
and other related goods (“2005 Design Expenses”). Sellers will provide to Purchasers no later
than January 31, 2005, copies of invoices, receipts, bills, and other back-up
documentation substantiating the 2005 Design Expenses. Purchasers will reimburse Sellers only for
those expenses for which Sellers have provided documentation in a form
satisfactory to Purchasers. The above
payment will be reduced if the amount of costs incurred by Maco in the 2005
financial year for design and development of the 2005 Fall/Winter collection
related to orders or services booked by Maco in 2004 (“the 2005 Collection
Costs”), plus the 2005 Design Expenses incurred by Maco in 2004, exceed an
aggregate of €1,500,000. The reduction
will equal on a Euro to Euro basis the amount of the 2005 Collection Costs in
excess of the aggregate expenditure of €1,500,000.
12.02 Maco’s Debts. Within 10 business days after the Closing
Date, Purchasers will cause Maco to satisfy all outstanding debts existing as
of the Closing Date and owed on any of its bank credit facilities and to Fingen
as set forth on Schedule 12.02 in such a way that all credit
lines extended to Maco prior to December31, 2004 are replaced by new credit lines negotiated by Purchasers.
12.03 Employees.
(a) On
or before the Closing or the Transfer Date, whichever is applicable, Sellers
will, or will have caused Maco to, have actually terminated, with the waiver of
the relevant employees to any claim, right, and indemnity expressed before all
of the relevant and competent labor office (“Ufficio
Provinciale del Lavoro”), the employment with Maco of those persons
designated by Purchasers to Sellers on or before December 31, 2004 (“Designated
Employees”). At Sellers’ election,
the Designated Employees may be transferred from Maco to Sellers or one or more
Affiliates of Sellers. All terminations
and transfers will have been conducted in full compliance with all applicable
laws and regulations (which are presently contemplated to be Italian laws and regulations). Sellers will be fully responsible for any and
all obligations of payment and/or consequences of the re-integration of any of
the Designated Employees in Maco’s corporate organization caused by, or arising
from, the terminations and transfers of the Designated Employees. Sellers will immediately pay for
(i) 100% of any severance payments in excess of the accrued amounts in the
audited financial statements as of December 31, 2004 required to be paid from
the beginning of such employee’s employment for the period up to December 31,2004 under all applicable laws or agreements to any employee who voluntarily or
involuntarily leaves the employ of Maco within 1 year after the Closing Date,
and (ii) 90% of all other costs and expenses (including without limitation
all wages, salary, bonuses, commissions, incentive payments, and other
compensation such as vacation and sick pay) or any other benefit, perquisite,
cost, expense, liability or obligation attributable to services provided prior
to December 31, 2004) of such terminations and transfers which are in excess of
such amounts described in clauses (i) and (ii) as shown in the audited
Financial Statements as of the Closing Date.
Seller has notified Purchasers that the termination of one of its
employees will take place on or before January 10, 2005.
(b) Immediately
following the Closing or the Transfer Date, whichever is applicable, Purchasers
or one or more of their Affiliates may offer employment to employees of Sellers
or their Affiliates involved in the conduct of the Licensed Businesses, other
than the Designated Employees.
12.04 Books and Records;
Access.
(a) Unless
otherwise consented to in writing by Sellers, for a period of 10 years after
the Closing, neither Purchasers nor their Affiliates will destroy, alter or
otherwise dispose of any original books or records of the Licensed Businesses
included in the Transferred Assets without first offering to
surrender
such books and records to Sellers at no expense to Sellers and will maintain
such books and records in good condition in a reasonably accessible
location. Purchasers will afford Sellers
reasonable access during normal business hours to examine and copy such books
and records.
(b) Unless
otherwise consented to in writing by Purchasers, for a period of 10 years after
the Closing, neither Sellers nor their Affiliates will destroy, alter or
otherwise dispose of any original books or records of the Licensed Businesses
without first offering to surrender such books and records at no expense to
Purchasers and will maintain such books and records in good condition in a
reasonably accessible location. Sellers
will afford Purchasers reasonable access during normal business hours to
examine and copy such books and records.
(c) Sellers
acknowledge that Guess is a reporting company subject to the Securities Act of
1933, as amended, and the Securities Exchange Act of 1934, as amended, and as
such must timely file various reports with the U.S. Securities and Exchange
Commission. Sellers agree to cooperate,
at no expense to Purchasers, in affording Purchasers access to and copies of
materials requested by Purchasers in order to properly file such reports.
12.05 Transferred Assets. After the Closing or the Transfer Date, as
the case may be, Sellers will deliver to Purchasers or their designee(s) all
Transferred Assets that subsequently come into the possession of Sellers or
their Affiliates.
12.06 Tax Liabilities. All Tax liabilities assessed by the tax
authorities upon Maco Purchasers or any of Purchaser’ Affiliates that relate to
Taxes of Maco imposed for any taxable period (or any portion thereof) ending on
or before December 31, 2004 will be for the account of Maco, and the Purchaser
will bear 10% of such liability and Seller will cause 90% of any such Tax
liability or the amount of any such Tax to be paid over to the Purchasers
within 15 days after receipt of the tax assessment notices thereof.
All Tax
liabilities assessed by the tax authorities upon the Licensed Businesses that
relate to Taxes of the Licensed Businesses imposed for any taxable period (or
any portion thereof) ending on or before the Transfer Date of each individual
Licensed Business will be for the account of the respective Licensed Business,
and the Seller will cause 100% of any such Tax liability or the amount of any
such Tax to be paid over to the Purchasers within 15 days after receipt of
the tax assessment notices thereof.
12.07 Confidentiality. Except for disclosure of any information as
may be required in filings under the U.S. Securities Exchange Act of 1934, as
amended, or the rules and regulations promulgated thereunder, each party hereto
will hold, and will use its best efforts to cause its Affiliates, and their
respective agents and representatives to hold, in strict confidence from any
Person unless (i) compelled to disclose by judicial or administrative process
(including without limitation in connection with obtaining the necessary
approvals of this Agreement and the transactions contemplated hereby of any
governmental or regulatory authorities) or by other
requirements
of law or (ii) disclosed in an Action brought by a party hereto in pursuit of
its rights or in the exercise of its remedies hereunder, all documents and
information concerning the other party or any of its Affiliates furnished to it
by the other party or such other party’s representatives in connection with
this Agreement or the transactions contemplated hereby, except to the extent
that such documents or information can be shown to have been: (a) previously known by the party receiving
such documents or information, (b) in the public domain (either prior to or
after the furnishing of such documents or information hereunder) through no
fault of such receiving party, or (c) later acquired by the receiving party
from another source if the receiving party is not aware that such source is
under an obligation to another party hereto to keep such documents and
information confidential; provided that following the Closing the foregoing
restrictions will not apply to Purchasers’ use of documents and information
concerning Maco furnished by Sellers hereunder.
In the event the transactions contemplated hereby are not consummated,
upon the request of the other party, each party hereto will, and will cause its
Affiliates and their respective representatives to, promptly (and in no event
later than 10 business days after such request) redeliver or cause to be
redelivered all copies of documents and information furnished by the other
party in connection with this Agreement or the transactions contemplated hereby
and destroy or cause to be destroyed all notes, memoranda, summaries, analyses,
compilations, and other writings related thereto or based thereon prepared by
the party furnished such documents and information or its representatives.
12.08 Bank Accounts. After the Closing, Sellers will continue to
provide Purchasers with copies of all statements, corporate resolutions and
other documents related to its bank accounts in order to allow Purchasers to
confirm the segregation of all funds of Maco from funds of Fingen and Fingen’s
Affiliates.
12.09 No Claims by Affiliates. Neither the Purchasers nor the Sellers will
authorize or permit any of their respective Affiliates to initiate or make any
claim against the other party (or their Affiliates) with respect to this
Agreement and the transactions contemplated hereby, including without
limitation claims by Sellers’ Affiliates that non-arms’ length transactions
with Maco prior to the Closing may disadvantage such affiliate. All such claims, if any, will be resolved
between Sellers and Purchasers pursuant to the provisions of this Agreement.
12.10 Assistance In Proceedings.
After the Closing Date, without further consideration, Sellers will, and
will cause their Affiliates to cooperate with Purchasers and their counsel in
the contest or defense of, and make available their personnel and provide
testimony and access to their books and records in connection with, any claim,
action, investigation, litigation or proceeding involving or relating to any action,
activity, circumstance, condition, conduct, event, fact, failure to act,
incident, occurrence, plan, practice, situation, status or transaction on or
before the Closing Date, or the Transfer Date, whichever is applicable,
involving Maco, DutchCo or the Transferred Assets.
ARTICLE XIII
TERMINATION
13.01 Termination by Mutual
Agreement. This Agreement may be
terminated and the transactions contemplated by this Agreement may be abandoned
at any time by the mutual written agreement of Sellers and Purchasers.
13.02 Other Termination. By notice given prior to or at the Closing,
subject to Section 13.03, this Agreement may be terminated as follows:
(a) by Purchasers if a material breach of any provision of this Agreement
has been committed by a Seller and such breach has not been waived by
Purchasers;
(b) by Sellers if a material breach of any provision of this Agreement
has been committed by a Purchaser and such breach has not been waived by
Sellers;
(c) by
Purchasers if the Closing has not occurred on or before the Closing Date, or
such later date as the parties may agree upon, unless the Purchasers are in
material breach of this Agreement; or
(d) by Sellers if the Closing has not occurred on or before the Closing
Date, or such later date as the parties may agree upon, unless the Purchasers
are in material breach of this Agreement.
13.03 Effect of Termination. Each party’s right of termination under
Sections 13.01 and 13.02 is in addition to any other rights such party it
may have under this Agreement or otherwise, and the exercise of such right of
termination will not be an election of remedies. If this Agreement is
terminated pursuant to Sections 13.01 or 13.02, all obligations of the
parties under this Agreement will terminate, except that the obligations of the
parties in this Section 13.03 and Section 12.07 and Article XIV (except for
those in Section 14.02) will survive; provided that, if this Agreement is
terminated because of a breach of this Agreement by the nonterminating party or
because one or more of the conditions to the terminating party’s obligations
under this Agreement is not satisfied as a result of the party’s failure to
comply with its obligations under this Agreement, the terminating party’s right
to pursue all legal remedies will survive such termination unimpaired.
ARTICLE XIV
MISCELLANEOUS
PROVISIONS
14.01 Public Announcements. Except as the other party hereto may
authorize in writing or as required by law, including without limitation
applicable securities laws, or the rules of any nationally recognized
securities exchange, the parties hereto will not, and will cause their
respective officers, directors, employees, Affiliates, and advisors not to make
or authorize any public announcements relating to this Agreement and the
transactions contemplated hereby to any person not an officer, director,
employee, affiliate or advisor of such party.
Purchasers and
Sellers will
agree on the content of any statement or communication to the public or the
press prior to issuing any statement or communication to the public or the
press regarding the transactions contemplated by this Agreement; provided that,
if the securities laws applicable to Purchasers require public announcement
prior to the time Purchasers and Sellers can achieve agreement thereon,
Purchasers may make the required public announcement.
14.02 Further Assurances. From time to time after the Closing or the
Transfer Date, whichever is applicable, and without further consideration,
Sellers will execute and deliver, or procure the execution and delivery by
their Affiliates (or their successors-in-interest) of, such other instruments
of conveyance, assignment, transfer and delivery, and take such other actions
as Purchasers may reasonably request in order to further evidence and confirm
the transfer to Purchasers or their designee(s) of the Shares, the DutchCo
Shares and Transferred Assets and to put Purchasers in actual possession and
operating control of Maco, DutchCo and the Transferred Assets, and the related
books and records, and otherwise to fulfill their obligations under this
Agreement.
14.03 Amendment; Waiver. This Agreement may not be amended, modified,
supplemented or any of its provisions waived, except by a written instrument
executed and delivered by, in the case of amendment, modification, or
supplement, Purchasers and Sellers and, in the case of waiver, by the party or
parties sought to be charged thereby. No
waiver of any of the provisions of this Agreement will be deemed or will
constitute a waiver of any other provision hereof, and no such waiver will
constitute a continuing waiver, unless otherwise expressly stated. No failure of either Purchasers or Sellers to
insist upon strict compliance by the other with any obligation, covenant, agreement
or condition contained in this Agreement will operate as a waiver of, or
estoppel with respect to, any subsequent or other failure.
14.04 Fees and Expenses. Purchasers and Sellers will bear and pay
their own costs and expenses incurred in connection with the preparation,
negotiation, execution, and delivery of this Agreement and the agreements,
instruments, documents, and transactions referred to in or contemplated by this
Agreement, including without limitation all fees, expenses or commissions of
any of its advisors, agents, finders or brokers.
14.05 Notices. All notices and other communications required
or permitted under this Agreement will be in writing and (a) mailed by
certified mail, faxed with a copy by certified mail or (b) delivered by
courier with signature required for delivery:
Guess Italia S.p.A.
Via Danubio 9/11
10019 Osmannoro
Sesto, Florence
Attn:
Nello Rochetti
Tel:
011-39-055-3430-921
Fax:
011-39-055-3013-44
If to Sellers:
Fingen S.p.A.
Piazza strozzi 1
Florence, Italy
Attn:
Mr. Cesare Brogi
Tel:
011-39-055-266041
Fax:
011-39-055-2660554
Fingen Apparel N.V.
Strawinskylaan 3051, 1077 ZX Amsterdam
The Netherlands
Attn:
Mr. Colin Longhurst
Tel:
011-31-203012124
Fax:
011-31-203012116
All notices and other communications addressed as
provided in this Section 14.05 will be deemed given upon actual receipt if
(a) delivered personally against proper receipt or by fax with copy sent
by certified mail and (b) delivered by certified or registered mail with
postage prepaid or by Federal Express or similar courier service with courier
fees paid by the sender. Otherwise such
notices and communications will be deemed given 30 days after sending.
14.06 Assignment. This Agreement is binding and inures to the
benefit of the parties hereto and their respective successors-in-interest and
permitted assigns. Neither this
Agreement nor any of the rights, interests or obligations hereunder may be
assigned by the parties hereto without the prior written consent of the other
party; provided that Purchasers may assign any or all of their rights,
interests, and obligations hereunder to one or more of their Affiliates, but
such assignment(s) will not relieve Purchasers of their liability under this
Agreement. Any assignment that is in
violation of this Section 14.06 will be voidabinitio.
14.07 Governing Law. This Agreement (exclusive of the Closing
Documents) will be governed by and will be construed and enforced according to
the laws of the State of California, U.S.A. without giving effect to the
principles of its conflicts of law.
14.08 Arbitration. All disputes arising out of or in connection
with this Agreement will be resolved by Purchasers and Sellers through
submission to binding arbitration. The
arbitration will be held pursuant to the Commercial Arbitration Rules then in
effect of the American Arbitration Association by one arbitrator appointed in
accordance with those rules, but will be a person with substantial experience
in the retail clothing industry. The place
of arbitration will be Los Angeles, California, and the law applied in the
arbitration will be the law of the State of
California. The foregoing will not prevent either
Purchasers or Sellers from seeking injunctive relief in the state or federal
courts of California or in any other jurisdiction before or during any
arbitration hereunder. The award
rendered in the arbitration will be final and binding, and may be enforced in
any court of competent jurisdiction. The
prevailing party in the arbitration, or in any proceeding to compel arbitration
or enforce an arbitral award, will be entitled to recover its costs incurred in
the arbitration or proceeding, including reasonable attorney’s fees.
14.09 Severability. Each term and provision of this Agreement
constitutes a separate and distinct undertaking, covenant, term or provision
hereof. In the event that any term or
provision of this Agreement is determined to be unenforceable, invalid or
illegal in any respect, such unenforceability, invalidity, or illegality will
not affect any other term or provision of this Agreement, but this Agreement
will be construed as if such unenforceable, invalid or illegal term or
provision had never been contained herein.
If any term or provision of this Agreement is for any reason held to be
excessively broad as to time, duration, activity or subject, it will be
construed by limiting and reducing it, so as to be enforceable to the extent
permitted under applicable law as it then exists.
14.10 Bulk Sales Laws. Purchasers waive compliance by Sellers with
(a) any bulk sales or similar laws and (b) any state, local or
foreign Tax laws that may require notification of state or foreign governmental
authorities and related actions in respect of bulk sales of assets outside of
the ordinary course of business, in each case as such laws may apply to the
transactions contemplated by this Agreement.
14.11 No Third Party
Beneficiaries. The terms and
provisions of this Agreement are intended solely for the benefit of each of the
parties hereto and their respective successors-in-interest or permitted
assigns, and it is not the intention of the parties to confer third party
beneficiary rights upon any other Person other than Persons (a) included
as an Indemnified Party and (b) agreeing in writing in advance of a claim to
the arbitration provisions of Section 14.08 with respect to any disputes connected
with its claim.
14.12 Entire Agreement. This Agreement constitutes the entire
understanding of the parties with respect to its subject matter and supersedes
all previous negotiations, commitments, and writings with respect to such
subject matter. In the event of a
conflict between this Agreement and any English translation of any Schedule,
Closing Document or Exhibit thereof, the original language version of such
Schedule, Closing Document or Exhibit will prevail over any English translation
thereof.
14.13 Time Of
Essence. With regard to all dates
and time periods set forth or referred to in this Agreement, time is of the
essence.
14.14 Counterparts. This Agreement may be executed by facsimile
and in one or more counterparts, each of which will be deemed to be an original
copy of this Agreement and all of which, when taken together, will be deemed to
constitute one and the same agreement.
14.15 Captions. The article and section headings herein are
inserted for convenience of reference only, do not constitute a part of this
Agreement, and will not affect the interpretation or enforcement of this
Agreement.
* ** *
[signature page follows]
IN WITNESS
WHEREOF, the parties have executed this Agreement effective as of the date
first set forth above.
GUESS?, INC.
FINGEN S.p.A.
By:
By:
Name:
Name:
Title:
Title:
GUESS ITALIA S.r.l.
FINGEN APPAREL N.V.
By:
By:
Name:
Name:
Title:
Title:
Dates Referenced Herein and Documents Incorporated by Reference