EXHIBIT 4.17
Execution Copy
LEVI XXXXXXX & CO.
$100,000,000
12-1/4% Senior Notes due 2012
PURCHASE AGREEMENT
January 15, 2003
Xxxxxxx Xxxxx Barney Inc.
Banc of America Securities LLC
Scotia Capital (USA) Inc.
Credit Suisse First Boston LLC
X.X. Xxxxxx Securities Inc.
Fleet Securities, Inc.
As Representatives of the Initial Purchasers
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Levi Xxxxxxx & Co., a corporation organized under the laws of Delaware
(the "Company"), proposes to issue and sell to the several parties named in
Schedule I hereto (the "Initial Purchasers"), for whom you (the
"Representatives") are acting as representatives, $100,000,000 principal amount
of its 12-1/4% Senior Notes due 2012 (the "Securities"). The Securities are to
be issued under an indenture, (the "Indenture"), dated as of December 4, 2002,
between the Company and Wilmington Trust Company, as trustee (the "Trustee").
The Company has previously issued $425,000,000 principal amount of 12-1/4%
Senior Notes due 2012 and, prior to the Closing Date (as defined in Section 3
hereof), proposes to issue an additional $50,000,000 principal amount of 12-1/4%
Senior Notes due 2012 pursuant to the Indenture (collectively, the "Existing
Securities"). The Securities have the benefit of a Registration Rights Agreement
(the "Registration Rights Agreement"), dated the date hereof, between the
Company and the Initial Purchasers, pursuant to which the Company has agreed to
register the Securities under the Act subject to the terms and conditions
therein specified. To the extent there are no additional parties listed on
Schedule I other than you, the term Representative as used herein shall mean you
as the Initial Purchasers, and the terms Representatives and Initial Purchasers
shall mean either the singular or plural as the context requires. The use of the
neuter in this Agreement shall include the feminine and masculine wherever
appropriate. Certain terms used herein are defined in Section 17 hereof.
The sale of the Securities to the Initial Purchasers will be made
without registration of the Securities under the Act in reliance upon exemptions
from the registration requirements of the Act.
In connection with the sale of the Securities, the Company has prepared
an offering memorandum, dated January 15, 2003 (as amended or supplemented at
the Execution
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Time, including any and all exhibits thereto and any information incorporated by
reference therein, the "Offering Memorandum"). The Offering Memorandum sets
forth certain information concerning the Company and the Securities. The Company
hereby confirms that it has authorized the use of the Offering Memorandum, and
any amendment or supplement thereto, in connection with the offer and sale of
the Securities by the Initial Purchasers. Unless stated to the contrary,
references herein to the Offering Memorandum at the Execution Time are not meant
to include any information incorporated by reference therein subsequent to the
Execution Time, and any references herein to the terms "amend", "amendment" or
"supplement" with respect to the Offering Memorandum shall be deemed to refer to
and include any information filed under the Exchange Act subsequent to the
Execution Time which is incorporated by reference therein.
1. Representations and Warranties. The Company represents and
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warrants to each Initial Purchaser as set forth below in this Section 1.
(a) At the Execution Time and on the Closing Date (as defined in
Section 3 hereof), the Offering Memorandum did not, and will not (and
any amendment or supplement thereto, at the date thereof and at the
Closing Date will not), contain any untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Company makes no
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representation or warranty as to the information contained in or omitted
from the Offering Memorandum, or any amendment or supplement thereto, in
reliance upon and in conformity with information furnished in writing to
the Company by or on behalf of the Initial Purchasers through the
Representatives specifically for inclusion therein.
(b) All documents filed by the Company under the Exchange Act
(the "Exchange Act Documents"), when they were filed with the
Commission, complied as to form in all material respects with the
requirements of the Exchange Act, and the rules and regulations of the
Commission thereunder, and, when they were so filed, did not contain any
untrue statement of material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(c) Neither the Company, nor any of its Affiliates, nor any
person acting on its or their behalf (other than the Initial Purchasers,
as to whom the Company makes no representations) has, directly or
indirectly, made offers or sales of any security, or solicited offers to
buy any security, under circumstances that would require the
registration of the Securities under the Act.
(d) Neither the Company, nor any of its Affiliates, nor any
person acting on its or their behalf (other than the Initial Purchasers,
as to whom the Company makes no representations) has engaged in any form
of general solicitation or general advertising (within the meaning of
Regulation D) in connection with any offer or sale of the Securities in
the United States.
(e) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Act.
(f) Neither the Company, nor any of its Affiliates, nor any
person acting on its or their behalf (other than the Initial Purchasers,
as to whom the Company makes no representations) has engaged in any
directed selling efforts with respect to the Securities, and each of
them has complied with the offering restrictions requirements of
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Regulation S. Terms used in this paragraph have the meanings given to
them by Regulation S.
(g) The Company has been advised by The Portal Market of the
NASD that the Securities have been designated Portal-eligible securities
in accordance with the rules and regulations of the NASD and will be
eligible to trade on a fungible basis with the Existing Securities.
(h) The Company is not, and after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof
as described in the Offering Memorandum will not be, an "investment
company" within the meaning of the Investment Company Act, without
taking account of any exemption arising out of the number of holders of
the Company's securities.
(i) The Company is subject to and in full compliance with the
reporting requirements of Section 13 and Section 15(d) of the Exchange
Act.
(j) The Company has not paid or agreed to pay to any person any
compensation for soliciting another to purchase any securities of the
Company (except as contemplated by this Agreement).
(k) The Company has not taken, directly or indirectly, any
action designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise, the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(l) Each of the Company and its subsidiaries has been duly
incorporated or organized and is validly existing as a corporation or
other valid legal entity in good standing under the laws of the
jurisdiction in which it is chartered or organized with full corporate
or company power and authority to own or lease, as the case may be, and
to operate its properties and conduct its business as described in the
Offering Memorandum, and is duly qualified to do business as a foreign
corporation or other valid legal entity and is in good standing under
the laws of each jurisdiction which requires such qualification,
except in jurisdictions in which the failure to be so qualified or to be
in good standing has not had and would not reasonably be expected to
have a Material Adverse Effect. For purposes of this Agreement, a
"Material Adverse Effect" shall mean a material adverse effect on, or a
material adverse change in, the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole.
(m) All the outstanding shares of capital stock of each
subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and, except as otherwise set forth in the
Offering Memorandum and other than the Company's subsidiaries in Japan
and Turkey, all outstanding shares of capital stock of the subsidiaries
are owned by the Company either directly or through wholly owned
subsidiaries free and clear of any perfected security interest or any
other security interests, claims, liens or encumbrances.
(n) The Company's authorized equity capitalization is as set
forth in the Offering Memorandum, and the Voting Trust Agreement entered
into as of April 15, 1996, among the Voting Trustees and stockholders of
the Company conforms in all material respects to the description thereof
contained in the Offering Memorandum.
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(o) The statements in the Offering Memorandum under the headings
"Important Federal Income Tax Considerations", "Description of Notes",
"Exchange Offer; Registration Rights", "Business--Trademarks",
"Business--Legal Proceedings", "Risk Factors--Our success depends on
the continued protection of our trademarks and other proprietary
intellectual property rights" and in the fourth paragraph under
"Business -- Sourcing, Manufacturing and Logistics--Manufacturing and
Finishing", insofar as such statements summarize legal matters,
agreements, documents or proceedings discussed therein, are, in all
material respects, accurate and fair summaries of such legal matters,
agreements, documents or proceedings.
(p) This Agreement has been duly authorized, executed and
delivered by the Company; the Indenture has been duly authorized,
executed and delivered by the Company and, assuming due authorization,
execution and delivery thereof by the Trustee, constitutes a legal,
valid and binding instrument enforceable against the Company in
accordance with its terms (subject, as to the enforcement of remedies,
to applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors' rights generally from time to time in
effect and to general principles of equity); the Securities have been
duly authorized, and, when executed and authenticated in accordance with
the provisions of the Indenture and delivered to and paid for by the
Initial Purchasers, will have been duly executed and delivered by the
Company, will constitute the legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture (subject, as to the
enforcement of remedies, to applicable bankruptcy, insolvency,
moratorium or other laws affecting creditors' rights generally from time
to time in effect and to general principles of equity) and will
constitute the same series of securities under the Indenture as the
Existing Securities; and the Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery thereof by the other parties
thereto, constitutes a legal, valid and binding instrument enforceable
against the Company in accordance with its terms (subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights
generally from time to time in effect and to general principles of
equity).
(q) No consent, approval, authorization, filing with or order of
any court or governmental agency or body is required in connection with
the transactions contemplated herein or in the Indenture or the
Registration Rights Agreement, except such as will be obtained under the
Act and the Trust Indenture Act in connection with the transactions
contemplated by the Registration Rights Agreement and such as may be
required under the blue sky or securities laws of any jurisdiction in
connection with the transactions contemplated by this Agreement and the
Registration Rights Agreement.
(r) Neither the execution and delivery of the Indenture, this
Agreement or the Registration Rights Agreement, the issue and sale of
the Securities, nor the consummation of any other of the transactions
herein or therein contemplated, nor the fulfillment of the terms hereof
or thereof will conflict with, result in a breach or violation of, or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, (i) the
charter or by-laws of the Company or any of its subsidiaries; (ii) the
terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which the Company or any of its subsidiaries
is a party or bound or to which any of their respective properties is
subject; or (iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority of the United States or any state thereof
having jurisdiction
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over the Company, any of its subsidiaries or any of their respective
properties or to the Company's knowledge, any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or any
of its subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority outside of the
United States having jurisdiction over the Company, any of its
subsidiaries or any of their respective properties, except, with respect
to (x) clause (ii) and (y) any statute, law, rule, regulation, judgment,
order or decree applicable to the Company or any of its subsidiaries of
any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority outside of the United States described in
clause (iii) as to which the Company has no knowledge, for conflicts,
violations, breaches or impositions that would not reasonably be
expected to have a Material Adverse Effect.
(s) The consolidated historical financial statements and
schedules of the Company and its consolidated subsidiaries included in
the Offering Memorandum or the Exchange Act Documents present fairly in
all material respects the financial condition, results of operations and
cash flows of the Company as of the dates and for the periods indicated,
comply as to form with the applicable accounting requirements of the Act
and have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods involved
(except as otherwise noted therein); and the selected financial data set
forth under the caption "Selected Historical Consolidated Financial
Data" in the Offering Memorandum fairly present, on the basis stated in
the Offering Memorandum, the information included therein.
(t) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property is pending
or, to the best knowledge of the Company, threatened that (i) could
reasonably be expected to have a material adverse effect on the
performance of this Agreement, the Indenture or the Registration Rights
Agreement, or the consummation of any of the transactions contemplated
hereby or thereby; or (ii) could reasonably be expected to have a
Material Adverse Effect, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in
the Offering Memorandum (exclusive of any amendment or supplement
thereto).
(u) The Company and each of its subsidiaries own, lease or
license all such properties as are necessary to the conduct of their
respective operations as presently conducted.
(v) Neither the Company nor any subsidiary is in violation or
default of (i) any provision of its charter or bylaws; (ii) the terms of
any indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property is
subject; or (iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or
such subsidiary or any of its properties, as applicable, other than such
violations or defaults the occurrence of which would not reasonably be
expected to have a Material Adverse Effect, whether or not arising from
the transactions in the ordinary course of business.
(w) KPMG LLP, who have reviewed certain financial statements of
the Company and its consolidated subsidiaries included in the Offering
Memorandum, are independent public accountants with respect to the
Company within the meaning of the Act and the applicable published rules
and regulations thereunder. Xxxxxx Xxxxxxxx LLP, who has
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previously certified certain financial statements of the Company and its
consolidated subsidiaries and previously delivered their report with
respect to the audited consolidated financial statements and schedules
included in the Offering Memorandum or the Exchange Act Documents, were
at all times during their engagement by the Company independent public
accountants with respect to the Company within the meaning of the Act
and the applicable published rules and regulations thereunder.
(x) To the Company's knowledge, there are no material stamp or
other issuance or transfer taxes or duties or other material similar
fees or charges required to be paid in connection with the execution and
delivery of this Agreement or the issuance or sale by the Company of the
Securities.
(y) The Company has filed all foreign, federal, state and local
tax returns that are required to be filed or has requested extensions
thereof (except in any case in which the failure so to file would not
have a Material Adverse Effect, whether or not arising from transactions
in the ordinary course of business, except as set forth in or
contemplated in the Offering Memorandum (exclusive of any amendment or
supplement thereto) and has paid all taxes required to be paid by it and
any other assessment, fine or penalty levied against it, to the extent
that any of the foregoing is due and payable, except for any such tax or
other assessment, fine or penalty that is currently being contested in
good faith or as would not have a Material Adverse Effect, whether or
not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Offering Memorandum (exclusive of
any amendment or supplement thereto).
(z) No labor problem or dispute with the employees of the
Company or any of its subsidiaries exists or is threatened or imminent,
and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or its subsidiaries'
principal suppliers, contractors or customers that in any such case
could have a Material Adverse Effect, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Offering Memorandum (exclusive of any amendment
or supplement thereto).
(aa) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are reasonable and customary in the
businesses in which they are engaged; all policies of insurance and
fidelity or surety bonds insuring the Company or any of its subsidiaries
or their respective businesses, assets, employees, officers and
directors are in full force and effect, except when the failure to be in
full force and effect would not have a Material Adverse Effect; the
Company and its subsidiaries are in compliance with the terms of such
policies and instruments in all material respects; except as would not
have a Material Adverse Effect, there are no claims by the Company or
any of its subsidiaries under any such policy or instrument as to which
any insurance company is denying liability or defending under a
reservation of rights clause; and neither the Company nor any such
subsidiary has any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a Material Adverse
Effect, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Offering
Memorandum (exclusive of any amendment or supplement thereto).
(bb) No subsidiary of the Company is currently contractually
prohibited, directly or indirectly, from paying any dividends to the
Company, from making any other distribution on such subsidiary's capital
stock, from repaying to the Company any loans
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or advances to such subsidiary from the Company or from transferring any
of such subsidiary's property or assets to the Company or any other
subsidiary of the Company, except as described in or contemplated by the
Offering Memorandum or the Company's Credit Agreement dated as of
February 1, 2001, among the Company, the banks, financial institutions
and other institutional lenders listed on the signature pages thereto,
Bank of America, N.A., as swing line bank, Banc of America Securities
LLC and Xxxxxxx Xxxxx Barney Inc., as co-lead arrangers and joint book
managers, Citicorp USA, Inc., as syndication agent, The Bank of Nova
Scotia, as documentation agent, and Bank of America, N.A., as the
administrative and collateral agent, as amended as of July 11, 2001,
January 28, 2002 and July 26, 2002 (the "Existing Bank Credit
Facility"); the Indenture, dated as of July 31, 2001, by and between
Levi Xxxxxxx Receivables Funding, LLC, as issuer, and Citibank, N.A. as
Indenture Trustee, Paying Agent, Authentication Agent, Transfer Agent
and Registrar, and all documents related thereto (together, the
"Domestic Receivables Securitization Facility"); and the European
Receivables Agreement, dated February 2000, between the Company and
Tulip Asset Purchase Company B.V., and all documents related thereto
(together, the "European Securitization Agreements").
(cc) The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct
their respective businesses, other than such licenses, certificates,
permits or other authorizations, the failure of which to possess would
not have a Material Adverse Effect, and neither the Company nor any such
subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or
permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a Material Adverse
Effect, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Offering
Memorandum (exclusive of any amendment or supplement thereto).
(dd) The Company and each of its subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
asset accountability; and (iii) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The Company
maintains disclosure controls and procedures (as such term is defined in
Rule 13a-14 under the Exchange Act) that are effective in ensuring that
information required to be disclosed by the Company in the reports that
it files or submits under the Exchange Act is recorded, processed,
summarized and reported, within the time periods specified in the rules
and forms of the Securities and Exchange Commission, including, without
limitation, controls and procedures designed to ensure that information
required to be disclosed by the Company in the reports that it files or
submits under the Exchange Act is accumulated and communicated to the
Company's management, including its principal executive officer or
officers and its principal financial officer or officers, as appropriate
to allow timely decisions regarding required disclosure.
(ee) In the ordinary course of its business, the Company
periodically reviews the effect of applicable foreign, federal, state
and local laws and regulations relating to the protection of human
health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws") on the
business,
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operations and properties of the Company and its subsidiaries, in the
course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws, or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to
third parties); on the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities would not, singly
or in the aggregate, have a Material Adverse Effect, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Offering Memorandum (exclusive of
any amendment or supplement thereto).
(ff) Except as would not have a Material Adverse Effect, each of
the Company and its subsidiaries has fulfilled its obligations, if any,
under the minimum funding standards of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx
Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
and the regulations and published interpretations thereunder with
respect to each "plan" (as defined in Section 3(3) of ERISA and such
regulations and published interpretations) in which employees of the
Company and its subsidiaries are eligible to participate and each such
plan is in compliance in all material respects with the presently
applicable provisions of ERISA and such regulations and published
interpretations; the Company and its subsidiaries have not incurred any
unpaid liability to the Pension Benefit Guaranty Corporation (other than
for the payment of premiums in the ordinary course) or to any such plan
under Title IV of ERISA.
(gg) The subsidiaries listed on Annex A attached hereto are the
only significant subsidiaries of the Company as defined by Rule l-02 of
Regulation S-X under the Act (the "Subsidiaries").
(hh) The Company and its subsidiaries own, possess, license or
have other rights to use, on reasonable terms, all patents, patent
applications, trade and service marks (including the Levi's(R),
Dockers(R), Slates(R) and Levi Xxxxxxx Signature(TM) trademarks), trade
and service xxxx registrations, trade names, copyrights, licenses,
inventions, trade secrets, technology, know-how and other intellectual
property (collectively, the "Intellectual Property") necessary for the
conduct of the Company's business as now conducted free and clear of any
material security interests, claims, liens or encumbrances, except as
would not have a Material Adverse Effect or as set forth in or
contemplated in (i) the Offering Memorandum (exclusive of any amendment
or supplement thereto) or (ii) the Existing Bank Credit Facility, and
none of the Intellectual Property, to the best knowledge of the Company,
conflicts with the valid trademark, trade name, copyright, patent,
patent right or intangible asset of any other Person to the extent that
such conflict has or would have a Material Adverse Effect.
(ii) For the fiscal year ended November 24, 2002, the Company
reasonably and in good faith expects to report income, after taxes but
before extraordinary items and cumulative effect of a change in
accounting principle; and for at least one of the two fiscal years
immediately preceding the fiscal year ended November 24, 2002, the
Company reported income, after taxes but before extraordinary items and
cumulative effect of a change in accounting principle.
Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Initial Purchasers
in connection with the offering of the Securities shall be deemed a
representation and warranty by the Company, as to matters covered
thereby, to each Initial Purchaser.
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2. Purchase and Sale. Subject to the terms and conditions and in
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reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Initial Purchaser, and each Initial
Purchaser agrees, severally and not jointly, to purchase from the
Company at a purchase price of 100.5% of the principal amount thereof,
plus accrued interest, if any, from December 4, 2002 to the Closing
Date, the principal amount of Securities set forth opposite such Initial
Purchaser's name on Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the
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Securities shall be made at 10:00 A.M., New York City time, on January
22, 2003, or at such time on such later date (not later than three
Business Days after the foregoing date) as the Representatives shall
designate, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such
date and time of delivery and payment for the Securities being herein
called the "Closing Date"). Delivery of the Securities shall be made to
the Representatives for the respective accounts of the several Initial
Purchasers against payment by the several Initial Purchasers through the
Representatives of the purchase price thereof to or upon the order of
the Company by wire transfer payable in same-day funds to the account
specified by the Company. Delivery of the Securities shall be made
through the facilities of The Depository Trust Company, unless the
Representatives shall otherwise instruct.
4. Offering by Initial Purchasers. Each Initial Purchaser,
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severally and not jointly, represents and warrants to and agrees with
the Company that:
(a) It has not offered or sold, and will not offer or sell, any
Securities except (i) to those persons it reasonably believes to be
qualified institutional buyers (as defined in Rule 144A under the Act)
and that, in connection with each such sale, it has taken or will take
reasonable steps to ensure that the purchaser of such Securities is
aware that such sale is being made in reliance on Rule 144A; or (ii) in
accordance with the restrictions set forth in Exhibit A hereto.
(b) Neither it nor any person acting on its behalf has made or
will make offers or sales of the Securities in the United States by
means of any form of general solicitation or general advertising (within
the meaning of Regulation D) in the United States.
5. Agreements. The Company agrees with each Initial Purchaser
----------
that:
(a) The Company will furnish to each Initial Purchaser and to
counsel for the Initial Purchasers, without charge, during the period
referred to in paragraph (c) below, as many copies of the Offering
Memorandum and any amendments and supplements thereto as you may
reasonably request.
(b) The Company will not amend or supplement the Offering
Memorandum without the prior written consent of the Representatives.
(c) If at any time prior to the completion of the sale of the
Securities by the Initial Purchasers (as determined by the
Representatives), any event occurs as a result of which the Offering
Memorandum, as then amended or supplemented, would include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it shall
be necessary to amend or supplement the Offering Memorandum to comply
with applicable law, the Company promptly (i) will notify the
Representatives of any such event; (ii) subject to the requirements of
paragraph (b) of this Section 5, will prepare an amendment or supplement
that will correct such statement or omission or effect such compliance;
and (iii) will supply any supplemented or amended Offering
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Memorandum to the several Initial Purchasers and counsel for the Initial
Purchasers without charge in such quantities as you may reasonably
request.
(d) The Company will arrange, if necessary, for the
qualification of the Securities for sale by the Initial Purchasers under
the laws of such jurisdictions in the United States and the European
Union as the Representatives may reasonably designate and will maintain
such qualifications in effect so long as required for the sale of the
Securities; provided that in no event shall the Company be obligated to
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qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that would subject it to service of
process in suits, other than those arising out of the offering or sale
of the Securities, in any jurisdiction where it is not now so subject.
The Company will promptly advise the Representatives of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
(e) The Company will not, and will not permit any of its
Affiliates (other than the Initial Purchasers, as to whom the Company
makes no covenant) to, resell, under circumstances that would require
the registration of the Securities under the Act, any Securities that
have been acquired by any of them.
(f) Neither the Company, nor any of its Affiliates (other than
the Initial Purchasers, as to whom the Company makes no covenant), nor
any person acting on its or their behalf will, directly or indirectly,
make offers or sales of any security, or solicit offers to buy any
security, under circumstances that would require the registration of the
Securities under the Act.
(g) Neither the Company, nor any of its Affiliates (other than
the Initial Purchasers, as to whom the Company makes no covenant), nor
any person acting on its or their behalf will engage in any form of
general solicitation or general advertising (within the meaning of
Regulation D) in connection with any offer or sale of the Securities in
the United States.
(h) So long as any of the Securities are "restricted securities"
within the meaning of Rule 144(a)(3) under the Act, the Company will,
during any period in which it is not subject to and in compliance with
Section 13 or 15(d) of the Exchange Act or it is not exempt from such
reporting requirements pursuant to and in compliance with Rule 12g3-2(b)
under the Exchange Act, provide to each holder of such restricted
securities and to each prospective purchaser (as designated by such
holder) of such restricted securities, upon the request of such holder
or prospective purchaser, any information required to be provided by
Rule 144A(d)(4) under the Act. This covenant is intended to be for the
benefit of the holders, and the prospective purchasers designated by
such holders, from time to time of such restricted securities.
(i) Neither the Company, nor any of its Affiliates, nor any
person acting on its or their behalf will engage in any directed selling
efforts with respect to the Securities, and each of them will comply
with the offering restrictions requirements of Regulation S. Terms used
in this paragraph have the meanings given to them by Regulation S.
(j) The Company will cooperate with the Representatives and use
its best efforts to permit the Securities to be eligible (i) for
clearance and settlement through The Depository Trust Company and (ii)
to share the same CUSIP number applicable to the Existing Securities.
10
(k) The Company will not offer, sell, contract to sell, grant
any other option to purchase or otherwise dispose of, directly or
indirectly, or announce the offering of, or file a registration
statement for, any debt securities issued or guaranteed by the Company
or any of its direct or indirect subsidiaries, or enter into any
agreement to do any of the foregoing (other than (a) the Existing
Securities, (b) the Securities and the New Securities (as defined in the
Registration Rights Agreement), (c) pursuant to any credit facility
permitted under the Indenture and (d) purchase money debt and any other
noncapital markets debt permitted under the Indenture) for a period of
90 days from the date the Securities are issued without the prior
written consent of Xxxxxxx Xxxxx Xxxxxx Inc.
(l) The Company will not take, directly or indirectly, any
action designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise, the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(m) The Company will not, at any time prior to the expiration of
three years after the Closing Date, be or become an open-end investment
company, unit investment trust or face-amount certificate company that
is or is required to be registered under Section 8 of the Investment
Company Act, and will not be or become a closed-end investment company
required to be registered but not registered thereunder.
(n) The Company agrees to pay the costs and expenses relating to
the following matters: (i) the preparation of the Indenture and the
Registration Rights Agreement, the issuance of the Securities and the
fees of the Trustee; (ii) the preparation, printing or reproduction of
the Offering Memorandum and each amendment or supplement to either of
them; (iii) the printing (or reproduction) and delivery (including
postage, air freight charges and charges for counting and packaging) of
such copies of the Offering Memorandum, and all amendments or
supplements to either of them, as may, in each case, be reasonably
requested for use in connection with the offering and sale of the
Securities; (iv) the preparation, printing, authentication, issuance and
delivery of certificates for the Securities, including any stamp or
transfer taxes in connection with the original issuance and sale of the
Securities; (v) the printing (or reproduction) and delivery of this
Agreement, any blue sky memorandum and all other agreements or documents
printed (or reproduced) and delivered in connection with the offering of
the Securities; (vi) any registration or qualification of the Securities
for offer and sale under the securities or blue sky laws of the several
states (including filing fees and the reasonable fees and expenses of
counsel for the Initial Purchasers relating to such registration and
qualification); (vii) admitting the Securities for trading on a fungible
basis with the Existing Securities in The Portal Market of the NASD;
(viii) the transportation and other expenses incurred by or on behalf of
Company representatives in connection with presentations to prospective
purchasers of the Securities; (ix) the fees and expenses of the
Company's accountants and the fees and expenses of counsel (including
local and special counsel) for the Company; and (x) all other costs and
expenses incident to the performance by the Company of its obligations
hereunder. It is understood, however, that, except as provided in this
Section, and Sections 7 and 8 hereof, the Initial Purchasers will pay
all of their own costs and expenses, including the fees of their
counsel, Cravath, Swaine & Xxxxx.
(o) The Company shall conduct the Registered Exchange Offer
contemplated by the Registration Rights Agreement and the Registered
Exchange Offers relating to the Existing Securities contemplated by (i)
the Registration Rights Agreement dated November 26, 2002, among the
Company, Xxxxxxx Xxxxx Barney Inc., Banc of America Securities LLC,
Scotia Capital (USA) Inc., Credit Suisse First Boston Corp., X.X. Xxxxxx
11
Securities Inc., Fleet Securities, Inc. and SunTrust Capital Markets,
Inc. and (ii) the Registration Rights Agreement to be dated January 22,
2003 between the Company and affiliates of AIG Global Investment Corp.
simultaneously and, unless prohibited by the Commission, shall utilize
the same registration statement, offer documents and tender and
settlement mechanics for each such Registered Exchange Offer.
6. Conditions to the Obligations of the Initial Purchasers. The
-------------------------------------------------------
obligations of the Initial Purchasers to purchase the Securities shall
be subject to the accuracy of the representations and warranties on the
part of the Company contained herein at the Execution Time and the
Closing Date, to the accuracy of the statements of the Company made in
any certificates pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following
additional conditions:
(a) The Company shall have requested and caused Shearman &
Sterling, counsel for the Company, to furnish to the Representatives its
opinion, dated the Closing Date and addressed to the Representatives, to
the effect that:
(i) the Indenture has been duly authorized, executed and
delivered, and, assuming due authorization, execution and
delivery by the Trustee, constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with
its terms (subject, as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors' rights generally from time to
time in effect and to general principles of equity, including,
without limitation, concepts of materiality, reasonableness,
good faith and fair dealing, regardless of whether considered in
a proceeding in equity or at law); the Securities have been duly
and validly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to
and paid for by the Initial Purchasers under this Agreement,
will constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture (subject, as
to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to
general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether considered in a proceeding in
equity or at law); the Registration Rights Agreement has been
duly authorized, executed and delivered and, assuming due
authorization, execution and delivery by the other parties
thereto, constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms
(subject, as to the enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in
effect and to general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith
and fair dealing, regardless of whether considered in a
proceeding in equity or at law, and provided that such counsel
need not express any opinion as to the enforceability of any
rights to indemnification which may be violative of the public
policy underlying any Federal or state securities law, rule or
regulation); and the statements set forth under the heading
"Description of Notes" and "Exchange Offer; Registration Rights"
in the Offering Memorandum, insofar as such statements purport
to summarize certain provisions of the Securities, the Indenture
and the Registration Rights Agreement, provide, in all material
respects, a fair summary of such provisions;
12
(ii) the statements in the Offering Memorandum under the
heading "Important Federal Income Tax Considerations", insofar
as such statements summarize legal matters, agreements,
documents or proceedings discussed therein, are accurate and
fair summaries of such legal matters, agreements, documents or
proceedings;
(iii) no facts have come to the attention of such
counsel which give such counsel reason to believe that the
Offering Memorandum (other than the financial statements and
other financial data contained therein or omitted therefrom, as
to which such counsel has not been requested to comment), as of
its date or as of the Closing Date, contained or contains an
untrue statement of a material fact or omitted or omits to state
a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(iv) this Agreement has been duly authorized, executed
and delivered by the Company;
(v) neither the execution and delivery of this Agreement
or the Registration Rights Agreement, the issue and sale of the
Securities, nor the consummation of any other of the
transactions herein or therein contemplated, nor the fulfillment
of the terms hereof or thereof will conflict with, result in a
breach or violation of, or imposition of any lien, charge or
encumbrance upon any property or asset of the Company or any of
its subsidiaries pursuant to, (i) the charter or by-laws of the
Company; (ii) the terms of the Indenture; (iii) the terms of the
Existing Bank Credit Facility, including any covenant contained
therein; (iv) the terms of the Indenture, dated as of November
6, 1996, between the Company and Citibank, N.A., the U.S. Dollar
Indenture, dated as of January 18, 2001, between the Company and
Citibank, N.A., the Euro Indenture, dated as of January 18,
2001, between the Company and Citibank, N.A. or the Indenture
(together, the "Existing Indentures"), and any amendments
thereto, including any covenant contained therein; or (v) any
law, rule or regulation of the United States applicable to
securities transactions or the General Corporation Law of the
State of Delaware;
(vi) assuming the accuracy of the representations and
warranties and compliance with the agreements contained herein,
no registration of the Securities under the Act, and no
qualification of an indenture under the Trust Indenture Act, is
required for the offer and sale by the Initial Purchasers of the
Securities in the manner contemplated by this Agreement; and
(vii) the Company is not and, after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the Offering Memorandum, will
not be an "investment company" as defined in the Investment
Company Act without taking account of any exemption arising out
of the number of holders of the Company's securities.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other than the
States of California, Delaware and New York or the Federal laws of the United
States, to the extent they deem proper and specified in such opinion, upon the
opinion of other counsel of good standing whom they believe to be reliable and
who are satisfactory to counsel for the Initial Purchasers; and (B) as to
matters of fact, to the extent they deem proper, on certificates of responsible
officers of the Company and public officials. Such opinion may contain customary
assumptions, exceptions, limitations,
13
qualifications and comments reasonably satisfactory to the Initial Purchasers.
References to the Offering Memorandum in this Section 6(a) include any amendment
or supplement thereto at the Closing Date.
(b) The Company shall have requested and caused Xxxxxx X.
Xxxxxx, Esq., Senior Vice President and General Counsel for the
Company, to furnish to the Representatives his opinion, dated the
Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company and the Subsidiaries has been
duly incorporated or organized and is validly existing as a
corporation or other valid legal entity in good standing under
the laws of the jurisdiction in which it is chartered or
organized, with full corporate or company power and authority to
own or lease, as the case may be, and to operate its properties
and conduct its business as described in the Offering
Memorandum, and is duly qualified to do business as a foreign
corporation or other valid legal entity and is in good standing
under the laws of each jurisdiction which requires such
qualification, except in jurisdictions in which the failure to
be so qualified or to be in good standing has not had and would
not reasonably be expected to have a Material Adverse Effect;
(ii) all the outstanding shares of capital stock of the
Company and each Subsidiary have been duly and validly
authorized and issued and are fully paid and nonassessable, and,
except as otherwise set forth in the Offering Memorandum and
other than the Company's subsidiaries in Japan and Turkey, all
outstanding shares of capital stock of the Subsidiaries are
owned by the Company either directly or through wholly owned
subsidiaries free and clear of any perfected security interest
and, to the knowledge of such counsel, after due inquiry, any
other security interests, claims, liens or encumbrances;
(iii) the Company's authorized equity capitalization is
as set forth in the Offering Memorandum;
(iv) to the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding by or before
any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries or
its or their property that is not adequately disclosed in the
Offering Memorandum, except in each case for such proceedings
that, if the subject of an unfavorable decision, ruling or
finding would not singly or in the aggregate, result in a
Material Adverse Effect;
(v) such counsel has no reason to believe that at the
Execution Time or on the Closing Date the Offering Memorandum
contained or contains any untrue statement of a material fact or
omitted or omits to state any material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading (in each case, other than
the financial statements and other financial information
contained therein, as to which such counsel need express no
opinion);
(vi) assuming the accuracy of the representations and
warranties of the Initial Purchasers in Section 4 of this
Agreement, no consent, approval, authorization, filing with or
order of any court or governmental agency or body is required in
connection with the transactions contemplated herein or in the
Indenture and the Registration Rights Agreement, except such as
will be obtained
14
under the Act and the Trust Indenture Act in connection with the
transactions contemplated by the Registration Rights Agreement
and such as may be required under the blue sky or securities
laws of any jurisdiction in connection with the transactions
contemplated by this Agreement and the Registration Rights
Agreement and such other approvals (specified in such opinion)
as have been obtained; and
(vii) neither the execution and delivery of this
Agreement or the Registration Rights Agreement, the issue and
sale of the Securities, nor the consummation of any other of the
transactions herein or therein contemplated, nor the fulfillment
of the terms hereof or thereof will conflict with, result in a
breach or violation of, or imposition of any lien, charge or
encumbrance upon any property or asset of the Company or any of
its subsidiaries pursuant to, (i) the charter or by-laws of the
Company or any of its subsidiaries; (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or any of
its subsidiaries is a party or bound or to which any of their
respective properties is subject; or (iii) any statute, law,
rule, regulation, judgment, order or decree applicable to the
Company or any of its subsidiaries of any court, regulatory
body, administrative agency, governmental body, arbitrator or
other authority of the United States or any state thereof having
jurisdiction over the Company, any of its subsidiaries or any of
their respective properties or to the knowledge of such counsel,
any statute, law, rule, regulation, judgment, order or decree
applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental
body, arbitrator or other authority outside of the United States
having jurisdiction over the Company, any of its subsidiaries or
any of their respective properties, except, with respect to (x)
clause (ii) and (y) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of
its subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority outside
of the United States described in clause (iii) as to which such
counsel has no knowledge, for conflicts, violations, breaches or
impositions that would not reasonably be expected to have a
Material Adverse Effect.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other than the
States of Delaware and California or the Federal laws of the United States, to
the extent he deems proper and specified in such opinion, upon the opinion of
other counsel of good standing whom he believes to be reliable and who are
satisfactory to counsel for the Initial Purchasers; and (B) as to matters of
fact, to the extent he deems proper, on certificates of other responsible
officers of the Company and public officials. Such opinion may contain customary
assumptions, exceptions, limitations, qualifications and comments. References to
the Offering Memorandum in this Section 6(b) include any amendment or supplement
thereto at the Closing Date.
(c) The Representatives shall have received from Cravath, Swaine
& Xxxxx, counsel for the Initial Purchasers, such opinion or opinions,
dated the Closing Date and addressed to the Representatives, with
respect to the issuance and sale of the Securities, the Indenture, the
Registration Rights Agreement, the Offering Memorandum (as amended or
supplemented at the Closing Date) and other related matters as the
Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the purpose
of enabling them to pass upon such matters.
15
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chief Financial Officer and
the Treasurer, dated the Closing Date, to the effect that the signers of
such certificate have carefully examined the Offering Memorandum, any
amendment or supplement to the Offering Memorandum and this Agreement
and that:
(i) the representations and warranties of the Company in
this Agreement are true and correct in all material respects on
and as of the Closing Date with the same effect as if made on
the Closing Date, and the Company has complied in all material
respects with all the agreements and satisfied all the
conditions on its part to be performed or satisfied hereunder at
or prior to the Closing Date; and
(ii) since the date of the most recent financial
statements included in the Offering Memorandum (exclusive of any
amendment or supplement thereto), there has been no material
adverse change in the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and
its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated by the Offering Memorandum (exclusive
of any amendment or supplement thereto).
(e) The Company shall have furnished to the Representatives such
further certificates and documents as the Representatives may reasonably
request evidencing the derivation from the Company's accounting books
and records of financial statements or other financial data included in
the Offering Memorandum and any amendment or supplement to the Offering
Memorandum for periods during which the Company's financial statements
were audited by Xxxxxx Xxxxxxxx LLP.
(f) At the Execution Time and at the Closing Date, the Company
shall have requested and caused KPMG LLP to furnish to the
Representatives letters, dated respectively as of the Execution Time and
as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within
the meaning of the Act and the respective applicable rules and
regulations adopted by the Commission thereunder, that they have
performed a review of the unaudited interim financial information of the
Company for the nine-month period ended August 25, 2002 and as of August
25, 2002 and stating in effect that on the basis of a reading of the
latest unaudited financial statements made available by the Company and
its subsidiaries; their limited review, in accordance with the standards
established under Statement on Auditing Standards No. 71, of the
unaudited interim financial information for the nine-month period ended
August 25, 2002 and as of August 25, 2002, included or incorporated in
the Offering Memorandum; carrying out certain specified procedures (but
not an examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of significance
with respect to the comments set forth in such letter; a reading of the
minutes of the meetings of the Board of Directors and the Executive,
Audit and Finance Committees of the Board of Directors of the Company
and the Subsidiaries; and inquiries of certain officials of the Company
who have responsibility for financial and accounting matters of the
Company and its subsidiaries as to transactions and events subsequent to
November 26, 2001, nothing came to their attention which caused them to
believe that:
(1) the unaudited condensed consolidated
financial statements as of August 25, 2002 and for the
three and nine months ended August 25, 2002 included in
the Offering Memorandum do not comply in form in all
material respects with applicable accounting
requirements and with the
16
related rules and regulations adopted by the Commission
with respect to financial statements included in
quarterly reports on Form 10-Q under the Exchange Act;
and said unaudited condensed consolidated financial
statements are not in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited financial statements
included or incorporated in the Offering Memorandum;
(2) with respect to the period from August 25,
2002 to November 24, 2002, based on statements of
certain officials of the Company who have resonsibility
for financial and accounting matters to KPMG LLP, the
unaudited condensed consolidated financial statements
are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent
with that of the audited consolidated financial
statements included or incorporated in the Offering
Memorandum; or
(3) with respect to the period subsequent to
November 24, 2002 to a specified date not more than five
days prior to the date of such letter, there was any
increase in long-term debt, or change in capital stock
as compared with the amounts shown on the November 24,
2002 unaudited condensed consolidated balance sheet
included in the Offering Memorandum, or any decrease as
compared to the corresponding period in the fiscal year
ended November 24, 2002 in consolidated net sales,
except in all instances for changes or decreases set
forth in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not
deemed necessary by the Representatives; and
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Offering
Memorandum, including the information set forth under the
captions "Summary", "Risk Factors", "Selected Historical
Consolidated Financial Data", "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and
"Business" in the Offering Memorandum, the information included
in the "Quantitative and Qualitative Disclosures About Market
Risk" included or incorporated in the Company's Quarterly Report
on Form 10-Q for the quarter ended August 25, 2002 and Annual
Report on Form 10-K for the fiscal year ended November 25, 2001
agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation.
References to the Offering Memorandum in this Section 6(f)
include any amendment or supplement thereto at the date of the
applicable letter.
(g) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Offering Memorandum (exclusive
of any amendment or supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to in
paragraph (f) of this Section 6; or (ii) any change, or any development
involving a prospective change, in or affecting the condition (financial
or otherwise), prospects, earnings, business or properties of the
Company and its
17
subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or
contemplated in the Offering Memorandum (exclusive of any amendment or
supplement thereto) the effect of which, in any case referred to in
clause (i) or (ii) above, is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to market the Securities as contemplated by the Offering
Memorandum (exclusive of any amendment or supplement thereto).
(h) The Securities shall have been designated as Portal-eligible
securities in accordance with the rules and regulations of the NASD and
shall be eligible to trade on a fungible basis with the Existing
Securities, and the Securities shall be eligible for clearance and
settlement through The Depository Trust Company.
(i) Subsequent to the Execution Time, there shall not have been
any decrease in the rating of any of the Company's debt securities by
any "nationally recognized statistical rating organization" (as defined
for purposes of Rule 436(g) under the Act) or any notice given of any
intended or potential decrease in any such rating (including notice of
an adverse change in the outlook for such rating) or of a possible
change in any such rating that does not indicate the direction of the
possible change.
(j) The Company shall have entered into an amendment and waiver
to the Existing Credit Facility satisfactory in form and substance to
the Representatives, whereby the lenders shall have granted a waiver to
and amended the Existing Credit Facility to permit the issuance of the
Securities and the application of the proceeds from the sale of the
Securities as described in the Offering Memorandum and such amendment
and waiver shall be in full force and effect.
(k) The CUSIP Service Bureau of Standard & Poor's shall have
awarded the CUSIP number applicable to the Existing Securities to the
Securities.
(l) Prior to the Closing Date, the Company shall have furnished
to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Initial Purchasers,
this Agreement and all obligations of the Initial Purchasers hereunder may be
canceled at, or at any time prior to, the Closing Date by the Representatives.
Notice of such cancelation shall be given to the Company in writing or by
telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 will be
delivered at the office of counsel for the Initial Purchasers, at Cravath,
Swaine & Xxxxx, 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date.
7. Reimbursement of Expenses. If the sale of the Securities provided for
-------------------------
herein is not consummated because any condition to the obligations of the
Initial Purchasers set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Initial Purchasers, the Company will reimburse the Initial Purchasers
severally through Xxxxxxx Xxxxx
18
Barney Inc. on demand for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to indemnify
--------------------------------
and hold harmless each Initial Purchaser, the directors, officers, employees and
agents of each Initial Purchaser and each person who controls any Initial
Purchaser within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Offering Memorandum (or in any
supplement or amendment thereto) or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
-------- -------
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made in
the Offering Memorandum, or in any amendment thereof or supplement thereto, in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Initial Purchasers through the Representatives
specifically for inclusion therein. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Each Initial Purchaser severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of
its officers, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Initial Purchaser, but only
with reference to written information relating to such Initial Purchaser
furnished to the Company by or on behalf of such Initial Purchaser
through the Representatives specifically for inclusion in the Offering
Memorandum (or in any amendment or supplement thereto). This indemnity
agreement will be in addition to any liability which any Initial
Purchaser may otherwise have. The Company acknowledges that the
statements set forth in the last paragraph of the cover page regarding
the delivery of the Securities and, under the heading "Plan of
Distribution", (i) the list of Initial Purchasers; and (ii) the
sentences related to concessions and reallowances; and (iii) the
paragraph related to overallotment, stabilization and syndicate covering
transactions in the Offering Memorandum, constitute the only information
furnished in writing by or on behalf of the Initial Purchasers for
inclusion in the Offering Memorandum (or in any amendment or supplement
thereto).
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not otherwise
learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses; and (ii) will
not, in any event, relieve the indemnifying party from any obligations
to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be
entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any
action for which indemnification is sought (in which case the
indemnifying party
19
shall not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties except as
set forth below); provided, however, that such counsel shall be
-------- -------
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest; (ii) the actual or potential
defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party; (iii)
the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action;
or (iv) the indemnifying party shall authorize the indemnified party to
employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit
or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action,
suit or proceeding. The indemnifying party shall not, in connection
with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for fees and expenses of more
than one separate law firm of attorneys (in addition to any local
counsel) for all indemnified parties and all such fees and expenses
shall be reimbursed as incurred. Such firm shall be designated by
Xxxxxxx Xxxxx Xxxxxx Inc. in the case of the parties indemnified
pursuant to Section 8(a) and by the Company in the case of parties
indemnified pursuant to Section 8(b). Each indemnified party shall use
all reasonable efforts to cooperate with the indemnifying party in the
defense of any such action or claim.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company and the
Initial Purchasers severally agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or
more of the Initial Purchasers may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on
the one hand and by the Initial Purchasers on the other from the
offering of the Securities; provided, however, that in no case shall any
-------- -------
Initial Purchaser (except as may be provided in any agreement among the
Initial Purchasers relating to the offering of the Securities) be
responsible for any amount in excess of the purchase discount or
commission applicable to the Securities purchased by such Initial
Purchaser hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the
Initial Purchasers severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and of the Initial
Purchasers on the other in connection with the statements or omissions
which resulted in such Losses, as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be
equal to the total net proceeds from the offering (after deducting
discounts and commissions to the Initial Purchasers, but before
deducting expenses) received by it, and benefits received by the Initial
Purchasers shall be deemed to be equal to the total purchase discounts
and commissions in each case set forth in this Agreement. Relative fault
shall be determined by reference to, among other things, whether any
untrue or any alleged untrue statement of a material fact or the
omission or
20
alleged omission to state a material fact relates to information
provided by the Company on the one hand or the Initial Purchasers on the
other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement
or omission. The Company and the Initial Purchasers agree that it would
not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account
of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each
person who controls an Initial Purchaser within the meaning of either
the Act or the Exchange Act and each director, officer, employee and
agent of an Initial Purchaser shall have the same rights to contribution
as such Initial Purchaser, and each person who controls the Company
within the meaning of either the Act or the Exchange Act and each
officer and director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).
9. Default by an Initial Purchaser. If any one or more Initial
-------------------------------
Purchasers shall fail to purchase and pay for any of the Securities agreed to be
purchased by such Initial Purchaser hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Initial Purchasers shall be obligated severally to take
up and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names on Schedule I hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Initial Purchasers) the Securities which the defaulting Initial
Purchaser or Initial Purchasers agreed but failed to purchase; provided,
--------
however, that in the event that the aggregate principal amount of Securities
-------
which the defaulting Initial Purchaser or Initial Purchasers agreed but failed
to purchase shall exceed 10% of the aggregate principal amount of Securities set
forth on Schedule I hereto, the remaining Initial Purchasers shall have the
right to purchase all, but shall not be under any obligation to purchase any, of
the Securities, and if such nondefaulting Initial Purchasers do not purchase all
the Securities, this Agreement will terminate without liability to any
nondefaulting Initial Purchaser or the Company. In the event of a default by any
Initial Purchaser as set forth in this Section 9, the Closing Date shall be
postponed for such period, not exceeding five Business Days, as the
Representatives shall determine in order that the required changes in the
Offering Memorandum or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Initial
Purchaser of its liability, if any, to the Company or any nondefaulting Initial
Purchaser for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
-----------
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if at any time prior to such time
(i) trading in securities generally on the New York Stock Exchange or the Nasdaq
National Market shall have been suspended or limited or minimum prices shall
have been established on such Exchange or the Nasdaq National Market; (ii) a
banking moratorium shall have been declared either by Federal or New York State
authorities; or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Representatives, impracticable or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Offering Memorandum (exclusive of any amendment or
supplement thereto).
11. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and
21
of the Initial Purchasers set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of the Initial Purchasers or the Company or any of the officers,
directors, employees, agents or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities; provided,
--------
however, that the representations and warranties of the Company shall be deemed
-------
to be made at the Execution Time and the Closing Date only. The provisions of
Sections 7 and 8 hereof shall survive the termination or cancelation of this
Agreement.
12. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the Xxxxxxx Xxxxx Barney Inc. General Counsel (fax
no.: (000) 000-0000) and confirmed to the General Counsel, Xxxxxxx Xxxxx Xxxxxx
Inc. at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General
Counsel; or, if sent to the Company, will be mailed, delivered or telefaxed to
(000) 000-0000 and confirmed to it at Levi's Plaza, 0000 Xxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, XX 00000, attention of the Legal Department.
13. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and, except as expressly set forth in Section 5(h) hereof, no
other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
--------------
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
15. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
16. Headings. The section headings used herein are for convenience only
--------
and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement,
-----------
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Affiliate" shall have the meaning specified in Rule 501(b) of
Regulation D.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in the City of New York.
"Commission" shall mean the Securities and Exchange Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
22
"Investment Company Act" shall mean the Investment Company Act of 1940,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Regulation D" shall mean Regulation D under the Act.
"Regulation S" shall mean Regulation S under the Act.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated thereunder.
23
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement and your acceptance shall represent a binding agreement between
the Company and the several Initial Purchasers.
Very truly yours,
Levi Xxxxxxx & Co.
by
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
and Chief Financial
Officer
24
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Xxxxxxx Xxxxx Xxxxxx Inc.
Banc of America Securities LLC
Scotia Capital (USA) Inc.
Credit Suisse First Boston LLC
X.X. Xxxxxx Securities Inc.
Fleet Securities, Inc.
By: Xxxxxxx Xxxxx Xxxxxx Inc.
by
-------------------------
Name:
Title:
For itself and the other several Initial
Purchasers named in Schedule I to the
foregoing Agreement.
SCHEDULE I
Principal
Amount of
Securities
Initial Purchasers to be Purchased
------------------ ---------------
Xxxxxxx Xxxxx Barney Inc........................................................................ $ 25,000,000
Banc of America Securities LLC.................................................................. 25,000,000
Scotia Capital (USA) Inc........................................................................ 25,000,000
Credit Suisse First Boston LLC.................................................................. 10,000,000
X.X. Xxxxxx Securities Inc...................................................................... 10,000,000
Fleet Securities, Inc........................................................................... 5,000,000
------------
Total........................................................................................... $100,000,000
============
Annex A
Significant Subsidiaries
------------------------
Levi Xxxxxxx International
Levi Xxxxxxx International, Inc.
Levi Xxxxxxx International Group Finance Coordination Services SCA/CVA
Levi Xxxxxxx Financial Center Corporation
Levi Xxxxxxx Receivables Funding, LLC
NF Industries, Inc.
Levi Xxxxxxx - Europe X.X.
Xxxx Xxxxxxx Continental S.A.
EXHIBIT A
Selling Restrictions for Offers and
-----------------------------------
Sales outside the United States
-------------------------------
(1)(a) The Securities have not been and will not be registered under the
Act and may not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except in accordance with Regulation S under
the Act or pursuant to an exemption from the registration requirements of the
Act. Each Initial Purchaser represents and agrees that, except as otherwise
permitted by Section 4(a)(i) of the Agreement to which this is an exhibit, it
has offered and sold the Securities, and will offer and sell the Securities, (i)
as part of their distribution at any time; and (ii) otherwise until 40 days
after the later of the commencement of the offering and the Closing Date, only
in accordance with Rule 903 of Regulation S under the Act. Accordingly, each
Initial Purchaser represents and agrees that neither it, nor any of its
Affiliates nor any person acting on its or their behalf has engaged or will
engage in any directed selling efforts with respect to the Securities, and that
it and they have complied and will comply with the offering restrictions
requirement of Regulation S. Each Initial Purchaser agrees that, at or prior to
the confirmation of sale of Securities (other than a sale of Securities pursuant
to Section 4(a)(i) of the Agreement to which this is an exhibit), it shall have
sent to each distributor, dealer or person receiving a selling concession, fee
or other remuneration that purchases Securities from it during the distribution
compliance period a confirmation or notice to substantially the following
effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "Act") and may not be
offered or sold within the United States or to, or for the
account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days after
the later of the commencement of the offering and December 4,
2002, except in either case in accordance with Regulation S or
Rule 144A under the Act. Terms used above have the meanings
given to them by Regulation S."
(b) Each Initial Purchaser also represents and agrees that it
has not entered and will not enter into any contractual arrangement with
any distributor with respect to the distribution of the Securities,
except with its Affiliates or with the prior written consent of the
Company.
(c) Terms used in this section have the meanings given to them
by Regulation S.
(2) Each Initial Purchaser represents and agrees that (i) it has
not offered or sold and, prior to the date six months after the date of issue of
the Securities, will not offer or sell any Securities to persons in the United
Kingdom except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments, whether as principal or agent,
for the purposes of their businesses or otherwise in circumstances which have
not resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995;(ii) it
has complied and will comply with all applicable provisions of the Financial
Services and Xxxxxx Xxx 0000 (the "FSMA") and the Public Offers of Securities
Regulations 1995 with respect to anything done by it in relation to such
Securities in, from or otherwise involving the United Kingdom; and (iii) it has
only communicated or caused to be communicated and will only communicate or
cause to be communicated any invitation or inducement to engage in investment
activity (within the meaning of Section 21 of the FSMA) received by it in
connection with the issue or sale of such Securities in circumstances in which
Section 21 (1) of the FSMA does not apply to the Company.
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