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8,000,000 Shares
THE NEIMAN MARCUS GROUP, INC.
COMMON STOCK, PAR VALUE $.01 PER SHARE
UNDERWRITING AGREEMENT
October 10, 1996
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October 10, 1996
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx, Sachs & Co.
Salomon Brothers Inc
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. International Limited
Xxxxxxx Sachs International
Salomon Brothers International Limited
c/o Morgan Xxxxxxx & Co. International Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Dear Sirs and Mesdames:
The Neiman Marcus Group, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the several Underwriters (as defined below)
8,000,000 shares of its common stock, par value $.01 per share (the "Firm
Shares").
It is understood that, subject to the conditions hereinafter stated,
6,400,000 Firm Shares (the "U.S. Firm Shares") will be sold to the several U.S.
Underwriters named in Schedule I hereto (the "U.S. Underwriters") in connection
with the offering and sale of such U.S. Firm Shares in the United States and
Canada to United States and Canadian Persons (as such terms are defined in the
Agreement Between U.S. and International Underwriters of even date herewith),
and 1,600,000 Firm Shares (the "International Shares") will be sold to the
several International Underwriters named in Schedule II hereto (the
"International Underwriters") in connection with the offering and sale of such
International Shares outside the United States and Canada to persons other than
United States and Canadian Persons. Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx,
Sachs & Co. and Salomon Brothers Inc shall act as representatives (the "U.S.
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Representatives") of the several U.S. Underwriters, and Xxxxxx Xxxxxxx & Co.
International Limited, Xxxxxxx Sachs International and Salomon Brothers
International Limited shall act as representatives (the "International
Representatives") of the several International Underwriters. The U.S.
Underwriters and the International Underwriters are hereinafter collectively
referred to as the Underwriters.
The Company also proposes to issue and sell to the several U.S.
Underwriters not more than an additional 1,200,000 shares of its common stock,
par value $.01 per share (the "Additional Shares") if and to the extent that the
U.S. Representatives shall have determined to exercise, on behalf of the U.S.
Underwriters, the right to purchase such shares of common stock granted to the
U.S. Underwriters in Section 2 hereof. The Firm Shares and the Additional Shares
are hereinafter collectively referred to as the "Shares." The shares of common
stock, par value $.01 per share of the Company to be outstanding after giving
effect to the sales contemplated hereby and the Stock Payment (as defined in the
Prospectus) are hereinafter referred to as the "Common Stock."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement relating to the Shares. The registration
statement contains two prospectuses to be used in connection with the offering
and sale of the Shares: the U.S. prospectus, to be used in connection with the
offering and sale of Shares in the United States and Canada to United States and
Canadian Persons, and the international prospectus, to be used in connection
with the offering and sale of Shares outside the United States and Canada to
persons other than United States and Canadian Persons. The international
prospectus is identical to the U.S. prospectus except for the outside front
cover page. The registration statement as amended at the time it becomes
effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933, as amended (the "Securities Act"), is hereinafter
referred to as the "Registration Statement"; the U.S. prospectus and the
international prospectus in the respective forms first used to confirm sales of
Shares are hereinafter collectively referred to as the "Prospectus" (including,
in the case of all references to the Registration Statement and the Prospectus,
documents incorporated therein by reference). If the Company has filed an
abbreviated registration statement to register additional shares of Common Stock
pursuant to Rule 462(b) under the Securities Act (the "Rule 462 Registration
Statement"), then any reference herein to the term "Registration Statement"
shall be deemed to include such Rule 462 Registration Statement.
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1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to
and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or, to the knowledge
of the Company, threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and
incorporated by reference in the Prospectus complied or will comply when so
filed in all material respects with the Exchange Act and the applicable
rules and regulations of the Commission thereunder, (ii) the Registration
Statement, when it became effective, did not contain and, as amended or
supplemented, if applicable, when so amended or supplemented will not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, (iii) the Registration Statement and the Prospectus
comply and, as amended or supplemented, if applicable, when so amended or
supplemented will comply in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder and
(iv) the Prospectus does not contain and, as amended or supplemented, if
applicable, when so amended or supplemented will not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and
warranties set forth in this paragraph 1(b) do not apply to statements or
omissions in the Registration Statement or the Prospectus set forth in a
letter from the Representatives to the Company dated the Closing Date.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
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(d) Each Significant Subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, has the corporate power
and authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries, taken
as a whole.
(e) The net sales of the Company and Bergdorf Xxxxxxx, Inc., Neiman
Marcus Funding Corporation and Neiman Marcus Holdings, Inc. (collectively,
excluding the Company, the "Significant Subsidiaries"), determined in
accordance with generally accepted accounting principles, accounted for not
less than [95%] of the net sales of the Company and its subsidiaries, taken
as a whole, for the fiscal year ended August 3, 1996. The total assets of
the Company and the Significant Subsidiaries, determined in accordance with
generally accepted accounting principles, accounted for not less than [95%]
of the total assets of the Company and its subsidiaries, taken as a whole,
as of August 3, 1996.
(f) This Agreement has been duly authorized, executed and delivered by
the Company and the Transactions (as defined in the Prospectus) have been
duly authorized by the Company.
(g) Assuming the consummation of the Transactions, the authorized
capital stock of the Company conforms as to legal matters, in all material
respects, to the description thereof contained in the Prospectus.
(h) The shares of Common Stock outstanding prior to the issuance of
the Shares have been duly authorized and are validly issued, fully paid and
non-assessable.
(i) The Shares and the shares of Common Stock to be issued as the
Stock Payment have been duly authorized and, when issued and delivered in
accordance with the terms of this Agreement or the terms contained in the
Prospectus, as the case may be, will be validly issued, fully paid and
non-assessable, and the issuance of such shares of Common Stock will not be
subject to any preemptive or similar rights.
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(j) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement and the
consummation of the Transactions will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the
Company or any agreement or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or
any subsidiary, except to the extent as would not have a material adverse
effect on the Company and its subsidiaries taken as a whole, and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company
of its obligations under this Agreement or in connection with the
Transactions, except such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the
Shares.
(k) There has not occurred any material adverse change, or any
development which would reasonably be expected to cause a material adverse
change, in the financial condition or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement).
(l) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as
required.
(m) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in
all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
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(n) The Company is not and, after giving effect to the Transactions
will not be an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
(o) The Company and its subsidiaries (i) are in compliance with any
and all 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"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in
the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(p) There are no costs or liabilities associated with Environmental
Laws (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) which would, singly or in the aggregate, have a material adverse
effect on the financial condition or on the earnings, business or
operations of the Company and its subsidiaries, taken as a whole.
(q) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with
respect to any securities of the Company or to require the Company to
include such securities with the Shares registered pursuant to the
Registration Statement.
(r) Except as may be otherwise described in the Prospectus, the
Company and its subsidiaries have good title to all real property and good
title to all personal property owned by them which is material to the
business of the Company and its subsidiaries, taken as a whole, in each
case free and clear of all liens, encumbrances and claims which would
materially interfere with the conduct of the business of the Company and
its subsidiaries, taken as a whole. The Company and its subsidiaries hold
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valid enforceable leasehold interests in all items of leased real and
personal property which are material to the business of the Company and its
subsidiaries taken as a whole, free and clear of all liens, encumbrances
and claims which could materially interfere with the conduct of the
business of the Company and its subsidiaries, taken as a whole.
(s) The Company has complied with all provisions of Section 517.075,
Florida Statutes relating to doing business with the Government of Cuba or
with any person or affiliate located in Cuba.
2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby agrees to sell to
the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective numbers of Firm Shares set forth in Schedules I and II
hereto opposite its names at U.S.$_____ a share ("Purchase Price").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the U.S. Underwriters the Additional Shares, and the U.S. Underwriters shall
have a one-time right to purchase, severally and not jointly, up to 1,200,000
Additional Shares at the Purchase Price. If the U.S. Representatives, on behalf
of the U.S. Underwriters, elect to exercise such option, the U.S.
Representatives shall so notify the Company in writing not later than 30 days
after the date of this Agreement, which notice shall specify the number of
Additional Shares to be purchased by the U.S. Underwriters and the date on which
such shares are to be purchased. Such date may be the same as the Closing Date
(as defined below) but not earlier than the Closing Date nor later than ten
business days after the date of such notice. Additional Shares may be purchased
as provided in Section 4 hereof solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Shares. If any
Additional Shares are to be purchased, each U.S. Underwriter agrees, severally
and not jointly, to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as the U.S. Representatives may
determine) that bears the same proportion to the total number of Additional
Shares to be purchased as the number of U.S. Firm Shares set forth in Schedule I
hereto opposite the name of such U.S. Underwriter bears to the total number of
U.S. Firm Shares.
The Company hereby agrees that, without the prior written consent of Xxxxxx
Xxxxxxx & Co. Incorporated on behalf of the Underwriters, it will not, during
the period ending 90 days after the date of the Prospectus, (i) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option
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or contract to sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock
or (ii) enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of the Common
Stock, whether any such transaction described in clause (i) or (ii) above is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold
hereunder or (B) the shares of Common Stock issued in connection with the Stock
Payment, (C) the grant by the Company of options to purchase shares of Common
Stock pursuant to an existing employee benefit plan of the Company or (D) the
issuance by the Company of shares of Common Stock upon the exercise of options
granted pursuant to an existing employee benefit plan of the Company.
3. TERMS OF PUBLIC OFFERING. The Company is advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Company is further
advised by you that the Shares are to be offered to the public initially at
U.S.$_____ a share (the "Public Offering Price") and to certain dealers selected
by you at a price that represents a concession not in excess of U.S.$____ a
share under the Public Offering Price, and that any Underwriter may allow, and
such dealers may reallow, a concession, not in excess of U.S.$____ a share, to
any Underwriter or to certain other dealers.
4. PAYMENT AND DELIVERY. Payment for the Firm Shares shall be made to the
Company in Federal or other funds immediately available in New York City against
delivery of such Firm Shares for the respective accounts of the several
Underwriters at 10:00 A.M., New York City time, on October 16, 1996, or at such
other time on the same or such other date, not later than October 23, 1996, as
shall be designated in writing by you. The time and date of such payment are
hereinafter referred to as the "Closing Date."
Payment for any Additional Shares shall be made to the Company in Federal
or other funds immediately available in New York City against delivery of such
Additional Shares for the respective accounts of the several Underwriters at
10:00 A.M., New York City time, on the date specified in the notice described in
Section 2 or at such other time on the same or on such other date, in any event
not later than November 22, 1996, as shall be designated in writing by the U.S.
Representatives. The time and date of such payment are hereinafter referred to
as the "Option Closing Date."
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The Firm Shares and Additional Shares shall be registered in such names and
in such denominations as you shall request in writing not later than two full
business days prior to the Closing Date or the Option Closing Date, as the case
may be. The Firm Shares and Additional Shares shall be delivered on the Closing
Date or the Option Closing Date, as the case may be, for the respective accounts
of the several Underwriters, with any transfer taxes payable in connection with
the transfer of the Shares to the Underwriters duly paid, against payment of the
Purchase Price therefor.
5. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The obligations of the
Company to sell the Shares to the Underwriters and the several obligations of
the Underwriters to purchase and pay for the Shares on the Closing Date are
subject to the condition that the Registration Statement shall have become
effective not later than 3:00 p.m. (New York City time) on the date hereof.
The several obligations of the Underwriters are subject to the following
further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any change, or any
development involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and
its subsidiaries, taken as a whole, from that set forth in the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the date
of this Agreement) that, in your judgment, is material and adverse to the
Company and its subsidiaries taken as a whole, and that makes it, in your
judgment, impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct as of the Closing
Date and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his or her knowledge as to proceedings threatened.
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(c) The Underwriters shall have received on the Closing Date an
opinion of Ropes & Xxxx, outside counsel for the Company, dated the Closing
Date, substantially in the form of Exhibit A hereto.
(d) the Underwriters shall have received on the Closing Date an
opinion of Xxxx X. Xxxxxx, Senior Vice President and General Counsel of the
Company, dated the Closing Date, substantially in the form of Exhibit B
hereto.
(e) The Underwriters shall have received on the Closing Date an
opinion of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, dated the
Closing Date, substantially in the form of Exhibit C hereto.
The opinion of Ropes & Xxxx described in paragraph (c) above and
the opinion of Xxxx X. Xxxxxx described in paragraph (d) above shall be
rendered to the Underwriters at the request of the Company and shall so
state therein.
(f) The Underwriters shall have received, on each of the date hereof
and the Closing Date, a letter dated the date hereof or the Closing Date,
as the case may be, in form and substance satisfactory to the Underwriters,
from Deloitte & Touche LLP, independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained or incorporated by reference in
the Registration Statement and the Prospectus; provided that the letter
delivered on the Closing Date shall use a "cut-off date" not earlier than
the date hereof.
(g) The "lock-up" agreements, each substantially in the form of
Exhibit D hereto, between you on the one hand and Harcourt General, Inc.
and the executive officers and directors of the Company on the other
relating to sales and certain other dispositions of shares of Common Stock
or certain other securities, delivered to you on or before the date hereof,
shall be in full force and effect on the Closing Date.
(h) The several obligations of the U.S. Underwriters to purchase
Additional Shares hereunder are subject to the delivery to the U.S.
Representatives on the Option Closing Date of such documents as they may
reasonably request with respect to the good standing of the Company, the
due authorization and issuance of the Additional Shares and other matters
related to the issuance of the Additional Shares.
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(i) The Exchange and Repurchase Agreement between the Company and
Harcourt General, Inc. shall be in full force and effect.
6. COVENANTS OF THE COMPANY. In further consideration of the agreements of
the Underwriters herein contained, the Company covenants with each Underwriter
as follows:
(a) To furnish to you, without charge, three signed copies of the
Registration Statement (including exhibits thereto and documents
incorporated therein by reference) and to each other Underwriter a copy of
the Registration Statement (without exhibits thereto but including
documents incorporated therein by reference) and, to furnish to you in New
York City, without charge, prior to 5:00 P.M. New York City time on the
business day next succeeding the date of this Agreement and during the
period mentioned in paragraph (c) below, as many copies of the Prospectus,
any documents incorporated therein by reference, and any supplements and
amendments thereto as you may reasonably request. The terms "supplement"
and "amendment" or "amend" as used in this Agreement shall include all
documents subsequently filed by the Company with the Commission pursuant to
the Exchange Act that are deemed to be incorporated by reference in the
Prospectus.
(b) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish to you a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to
which you reasonably object, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public offering
of the Shares as in the opinion of counsel for the Underwriters the
Prospectus is required by law to be delivered in connection with sales by
an Underwriter or dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if, in
the opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to
prepare, file with the Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses you will
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furnish to the Company) to which Shares may have been sold by you on behalf
of the Underwriters and to any other dealers upon request, either
amendments or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request; provided, however, that the Company shall not be required to
register or qualify as a foreign corporation or to take any action which
would subject it to the service of process in any jurisdiction where it is
not now so subject.
(e) To make generally available to the Company's security holders and
to you as soon as practicable an earning statement covering the
twelve-month period ending November 2, 1997 that satisfies the provisions
of Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(f) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the
Company's counsel and the Company's accountants in connection with the
registration and delivery of the Shares under the Securities Act and all
other fees or expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all printing
costs associated therewith, and the mailing and delivering of copies
thereof to the Underwriters and dealers, in the quantities hereinabove
specified, (ii) all costs and expenses related to the transfer and delivery
of the Shares to the Underwriters, including any transfer or other taxes
payable thereon, (iii) the cost of printing or producing any Blue Sky
memorandum in connection with the offer and sale of the Shares under state
securities laws and all expenses in connection with the qualification of
the Shares for offer and sale under state securities laws as provided in
Section 6(d) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky memorandum, (iv) all
filing fees and disbursements of counsel to the Underwriters incurred in
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connection with the review and qualification of the offering of the Shares
by the National Association of Securities Dealers, Inc., (v) all fees and
expenses incident to listing the Shares on the NYSE, (vi) the cost of
printing certificates representing the Shares, (vii) the costs and charges
of any transfer agent or registrar, (viii) the costs and expenses of the
Company relating to investor presentations on any "road show" undertaken in
connection with the marketing of the offering of the Shares, including,
without limitation, expenses associated with the production of road show
slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior approval of the
Company, travel and lodging expenses of the representatives and officers of
the Company and any such consultants, and the cost of any aircraft
chartered in connection with the road show, and (ix) all other costs and
expenses incident to the performance of the obligations of the Company
hereunder for which provision is not otherwise made in this Section. It is
understood, however, that except as provided in this Section, Section 7
entitled "Indemnity and Contribution", and the last paragraph of Section 9
below, the Underwriters will pay all of their costs and expenses, including
fees and disbursements of their counsel, stock transfer taxes payable on
resale of any of the Shares by them and any advertising expenses connected
with any offers they may make.
7. INDEMNITY AND CONTRIBUTION. (a) The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon the information set forth in a letter from the Representatives to the
Company dated the Closing Date.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the
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Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
such Underwriter, but only with reference to the information set forth in a
letter from the Representatives to the Company dated the Closing Date.
(c) In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to paragraph (a) or (b) of this Section 7, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel reasonably satisfactory to the indemnifying party, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying party
and the indemnified party and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them. It is understood that the indemnifying party shall not, in respect of the
legal expenses of any indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for
all such indemnified parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by
Xxxxxx Xxxxxxx & Co. Incorporated, in the case of parties indemnified pursuant
to paragraph (a) of this Section 7, and by the Company, in the case of parties
indemnified pursuant to paragraph (b) of this Section 7. The parties hereto
hereby agree that for parties indemnified pursuant to paragraph (a) of this
Xxxxxxx 0, Xxxxx Xxxx & Xxxxxxxx, Xxxxxxxx & Sterling, Xxxxxxxx & Xxxxxxxx and
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx shall be counsel reasonably
satisfactory to the Company as indemnifying party. The indemnifying party shall
not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have
14
16
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or (b)
of this Section 7 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Shares or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other hand in connection
with the offering of the Shares shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Shares (before
deducting expenses) received by the Company and the total underwriting discounts
and commissions received by the Underwriters, in each case as set forth in the
table on the cover of the Prospectus, bear to the aggregate Public Offering
Price of the Shares. The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Underwriters' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the respective number of
Shares they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) of this Section 7. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to
15
17
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Shares underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages that such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 7 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or in
equity.
(f) The indemnity and contribution provisions contained in this Section 7
and the representations, warranties and other statements of the Company
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter or
by or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Shares.
8. TERMINATION. This Agreement shall be subject to termination by notice
given by you to the Company, if (a) after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the National Association of
Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses (a)(i) through (iv), such event, singly or
together with any other such event, makes it, in your judgment, impracticable to
market the Shares on the terms and in the manner contemplated in the Prospectus.
9. EFFECTIVENESS; DEFAULTING UNDERWRITERS. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
16
18
If, on the Closing Date or the Option Closing Date, as the case may be, any
one or more of the Underwriters shall fail or refuse to purchase Shares that it
has or they have agreed to purchase hereunder on such date, and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule I or Schedule II bears to the
aggregate number of Firm Shares set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as you may specify, to
purchase the Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date; provided that in no event shall the
number of Shares that any Underwriter has agreed to purchase pursuant to this
Agreement be increased pursuant to this Section 9 by an amount in excess of
one-ninth of such number of Shares without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail
or refuse to purchase Firm Shares and the aggregate number of Firm Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Firm Shares to be purchased, and arrangements satisfactory to you and
the Company for the purchase of such Firm Shares are not made within 36 hours
after such default, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter or the Company. In any such case either you or
the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. If, on the Option Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Additional Shares and the
aggregate number of Additional Shares with respect to which such default occurs
is more than one-tenth of the aggregate number of Additional Shares to be
purchased, the non-defaulting Underwriters shall have the option to (i)
terminate their obligation hereunder to purchase Additional Shares or (ii)
purchase not less than the number of Additional Shares that such non-defaulting
Underwriters would have been obligated to purchase in the absence of such
default. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
17
19
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
10. COUNTERPARTS. This Agreement may be signed in two or more counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
11. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
12. HEADINGS. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
THE NEIMAN MARCUS GROUP, INC.
By
----------------------------
Name:
Title:
Accepted as of the date hereof
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXX, SACHS & CO.
SALOMON BROTHERS INC
Acting severally on behalf of themselves
and the several U.S. Underwriters
named in Schedule I hereto.
By Xxxxxx Xxxxxxx & Co. Incorporated
18
20
By
-------------------------
Name:
Title:
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
XXXXXXX SACHS INTERNATIONAL
SALOMON BROTHERS INTERNATIONAL LIMITED
Acting severally on behalf of themselves
and the several International Underwriters
named in Schedule II hereto.
By Xxxxxx Xxxxxxx & Co. International Limited
By
-------------------------
Name:
Title:
19
21
SCHEDULE I
U.S. UNDERWRITERS
NUMBER OF
FIRM SHARES
UNDERWRITER TO BE PURCHASED
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx, Sachs & Co.
Salomon Brothers Inc
[NAMES OF OTHER U.S. UNDERWRITERS]
--------------- ---------
Total U.S. Firm Shares............................... 6,400,000
=========
22
SCHEDULE II
INTERNATIONAL UNDERWRITERS
NUMBER OF
FIRM SHARES
UNDERWRITER TO BE PURCHASED
Xxxxxx Xxxxxxx & Co. International Limited
Xxxxxxx Sachs International
Salomon Brothers International Limited
[NAMES OF OTHER INTERNATIONAL CO-
MANAGERS]
--------------- ---------
Total International Firm Shares......................... 1,600,000
=========
23
EXHIBIT A
October __, 1996
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx, Sachs & Co.
Salomon Brother Inc
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. International Limited
Xxxxxxx Sachs International
Salomon Brothers International Limited
c/o Morgan Xxxxxxx & Co. International Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Re: 8,000,000 Shares of Common Stock, $.01 par value,
of The Neiman Marcus Group, Inc.
-------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel for The Neiman Marcus Group, Inc., a Delaware
corporation (the "Company"), in connection with the issue and sale by the
Company of [8,000,000] shares of its Common Stock, $.01 par value per share (the
"Shares"). This opinion is furnished to you as representatives of the several
Underwriters pursuant to Section 5(c) of the underwriting agreement dated
October __, 1996 (the "Underwriting Agreement"), among the Company and you as
representatives of the several underwriters listed on Schedules I and II thereto
relating to the issue and sale of the Shares. Terms defined in the Underwriting
Agreement and not otherwise defined herein are used herein as so defined.
We have attended the Closing of the sale of the Shares held today. We have
examined signed copies of the registration statement of the Company on Form S-3
(No. 333-11721), together with Amendments No. 1 and No. 2 thereto and all
exhibits thereto (the "Registration Statement"), all as filed with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Act"); copies of the prospectus dated October __, 1996
24
relating to the Shares filed with the Commission pursuant to Rule 424(b) under
the Act (the "Prospectus"); the documents filed by the Company under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") which are
specifically incorporated by reference in the Prospectus and all exhibits to
such documents (the "Incorporated Documents"); an executed copy of the
Underwriting Agreement; and such other documents as we have deemed necessary.
Additionally, we have relied upon oral advice from the staff of the Commission
to the effect that the Registration Statement became effective on October __,
1996.
We have also examined and relied upon the original or copies of minutes of
meetings of the stockholders and the Board of Directors of the Company and the
documents delivered at the Closing of the sale of the Shares (other than the
certificates representing the Shares, as to which we have relied upon a
certificate of the Transfer Agent and Registrar as to the countersignature and
registration of such certificates). We have assumed the genuineness of the
signatures on all documents examined by us, the authenticity of all documents
submitted to us as originals and the conformity to the corresponding originals
of all documents submitted to us as copies.
We express no opinion as to the laws of any jurisdiction other than those
of The Commonwealth of Massachusetts, the General Corporation Law of the State
of Delaware (the "DGCL") and the federal laws of the United States of America.
Any reference herein to "our knowledge," "known to us" or any variation thereof
shall mean the actual knowledge of lawyers in this firm who have participated in
our representation of the Company in connection with the preparation of the
Registration Statement.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware and
has the corporate power and authority to own its properties and conduct its
business as described in the Prospectus. Neiman Marcus Funding Corporation
(the "Significant Subsidiary") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware.
2. The authorized capital stock of the Company conforms as to legal matters
with the description thereof contained in the Prospectus under "Description
of Capital Stock.
3. The Shares have been duly authorized and, assuming such Shares have been
duly countersigned by the Company's transfer agent and registrar,
2
25
when delivered to you or upon your order against payment of the agreed
consideration therefor in accordance with the provisions of the
Underwriting Agreement, will be validly issued, fully paid and
non-assessable and the issuance of the Shares is not subject to any
statutory preemptive or similar rights under the DGCL or any contractual
preemptive or similar rights of which we have knowledge. The shares of
Common Stock to be issued as the Stock Payment have been duly authorized
and, when duly countersigned by the Company's transfer agent and registrar
and delivered to Harcourt General, Inc. against payment of the agreed
consideration therefor in accordance with the provisions of the Exchange
and Repurchase Agreement dated as of October 8, 1996 between the Company
and Harcourt General, Inc. (the "Exchange and Repurchase Agreement"), will
be validly issued, fully paid and non-assessable and the issuance of the
shares of Common Stock to be issued as the Stock Payment is not subject to
any statutory preemptive or similar rights under the DGCL or any
contractual preemptive or similar rights of which we have knowledge.
4. The Underwriting Agreement has been duly authorized, executed and delivered
by the Company and the Exchange and Repurchase Agreement has been
authorized, executed and delivered by the Company.
5. The issuance and sale of the Shares by the Company, the execution and
delivery of the Underwriting Agreement and the consummation of the
Transactions as described in the Prospectus will not contravene any
provision of applicable law or the restated certificate of incorporation or
by-laws of the Company or any judgment, order or decree, of which we have
knowledge, of any governmental body, agency or court having jurisdiction
over the Company or any Significant Subsidiary, except that we express no
opinion as to state securities or Blue Sky laws or as to compliance with
the antifraud provisions of federal and state securities laws. No consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the issue and sale by the
Company of the Shares or the consummation by the Company of the
Transactions as described in the Prospectus, except such as have been
obtained under the Act and except that we express no opinion as to such as
may be required under applicable Blue Sky or state securities laws in
connection with the purchase and distribution of the Shares by the
Underwriters.
6. The statements in (i) the Prospectus under the captions "Description of
Transactions; Use of Proceeds" and, as of the consummation of the
Transactions, "Description of Capital Stock" and (ii) in the Registration
3
26
Statement in Item 15, in each case insofar as such statements constitute
summaries of legal matters or documents referred to therein, fairly
present, in all material respects, the information called for with respect
to such legal matters and documents and fairly summarize the legal matters
and documents referred to therein.
7. After due inquiry, we do not know of any contracts or other documents that
are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration that are not
described or filed as required.
8. The Company is not, and after giving effect to the consummation of the
Transactions as described in the Prospectus will not be, an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
We have not independently verified the accuracy, completeness or fairness
of the statements made or the information contained in the Registration
Statement, the Prospectus or the Incorporated Documents, and, except with
respect to the descriptions referred to in paragraphs 2 and 6 above, we are not
passing upon and do not assume any responsibility therefor. In the course of the
preparation by the Company of the Registration Statement, the Prospectus and the
Incorporated Documents, we have participated in discussions with representatives
of the Company and its independent accountants, in many of which your
representatives and counsel also participated, in which the business and affairs
of the Company and the contents of the Registration Statement, the Prospectus
and the Incorporated Documents were discussed. We have also made inquiries of
representatives of the Company and its accountants as to whether there have been
any material changes in the affairs of the Company since the Registration
Statement became effective. There is no assurance that all material facts as to
the Company and its affairs were disclosed to us or that our familiarity with
the Company is such that we have necessarily recognized the materiality of such
facts as were disclosed to us, and we have to a large extent relied upon
statements of representatives of the Company as to materiality of the facts
disclosed to us.
Based upon our participation in the foregoing discussions, the foregoing
inquiries and our examination of the documents referred to above and such other
documents as came to our attention as a result of such discussions and
inquiries, (i) we are of the opinion that the Incorporated Documents (except for
financial statements and schedules, including the notes thereto, and other
financial and statistical data included therein, as to which we express no
opinion) filed pursuant to the Exchange Act complied when so filed as to form in
all material respects with the Exchange Act and the rules and regulations of the
Commission thereunder, (ii)
4
27
we are of the opinion that the Registration Statement and Prospectus (except for
financial statements and schedules, including the notes thereto, and other
financial and statistical data included therein, as to which we express no
opinion) comply as to form in all material respects with the Act and the
applicable rules and regulations of the Commission thereunder, (iii) we have no
reason to believe that (except for financial statements and schedules, including
the notes thereto, and other financial and statistical data as to which we
express no belief) the Registration Statement, taken together with the
Incorporated Documents, when it became effective contained, and as of today
contains, any untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading and (iv) we have no reason to believe that (except for
financial statements and schedules, including the notes thereto, and other
financial and statistical data as to which we express no belief) the Prospectus
and the Incorporated Documents taken together as of today contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements therein, in light of the circumstances under which
there were made, not misleading.
This opinion is furnished by us to you as the Representatives of the
several Underwriters and is solely for the benefit of the several Underwriters.
Very truly yours
Ropes & Xxxx
5
28
EXHIBIT B
October __, 1996
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx, Sachs & Co.
Salomon Brother Inc
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. International Limited
Xxxxxxx Sachs International
Salomon Brothers International Limited
c/o Morgan Xxxxxxx & Co. International Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Re: 8,000,000 Shares of Common Stock, $.01 par value,
of The Neiman Marcus Group, Inc.
-------------------------------------------------
Ladies and Gentlemen:
This opinion is furnished to you as representatives of the several
Underwriters pursuant to Section 5(d) of the underwriting agreement dated
October __, 1996 (the "Underwriting Agreement"), among The Neiman Marcus Group,
Inc., a Delaware corporation (the "Company") and you as representatives of the
several underwriters listed on Schedules I and II thereto relating to the issue
and sale by the Company of 8,000,000 shares of its Common Stock, $.01 par value
per share (the "Shares"). Terms defined in the Underwriting Agreement and not
otherwise defined herein are used herein as so defined.
I have attended the Closing of the sale of the Shares held today. I have
examined signed copies of the registration statement of the Company on Form S-3
(No. 333-11721), together with Amendments No. 1 and No. 2 thereto and all
exhibits thereto (the "Registration Statement"), all as filed with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Act"); copies of the prospectus dated October __, 1996
relating to the Shares filed with the Commission pursuant to Rule 424(b) under
the Act (the
29
"Prospectus"); the documents filed by the Company under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") which are specifically incorporated
by reference in the Prospectus and all exhibits to such documents (the
"Incorporated Documents"); an executed copy of the Underwriting Agreement; and
such other documents as I have deemed necessary. Additionally, I have relied
upon oral advice from the staff of the Commission to the effect that the
Registration Statement became effective on October __, 1996.
I have also examined and relied upon the original or copies of minutes of
meetings of the stockholders and the Board of Directors of the Company and of
each Significant Subsidiary and the documents delivered at the Closing of the
sale of the Shares (other than the certificates representing the Shares, as to
which I have relied upon a certificate of the Transfer Agent and Registrar as to
the countersignature and registration of such certificates). I have assumed the
genuineness of the signatures on all documents examined by me, the authenticity
of all documents submitted to me as originals and the conformity to the
corresponding originals of all documents submitted to me as copies.
I express no opinion as to the laws of any jurisdiction other than those of
The Commonwealth of Massachusetts, the General Corporation Law of the State of
Delaware (the "DGCL") and the federal laws of the United States of America. In
rendering my opinions in paragraph 2 below, I have relied on certificates of the
Secretary of States of the relevant jurisdictions with respect to the
qualification of the Company and the Significant Subsidiaries as foreign
corporations.
Based upon and subject to the foregoing, I am of the opinion that:
1. Each Significant Subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and authority to
own its properties and conduct its business as described in the Prospectus
(including the Incorporated Documents).
2. The Company and each Significant Subsidiary is duly qualified to transact
business in and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect
on the Company and its subsidiaries taken as a whole.
3. The shares of Common Stock outstanding prior to the issuance of the Shares
have been duly authorized and are validly issued, fully paid and non-
assessable. The issuance of the Shares and the shares of Common Stock to
B-2
30
be issued as the Stock Payment is not subject to any contractual preemptive
or similar rights of which I have knowledge.
4. The issuance and sale of the Shares by the Company, the execution and
delivery of the Underwriting Agreement and the consummation of the
Transactions as described in the Prospectus (including the Incorporated
Documents) will not contravene any agreement or other instrument, of which
I have knowledge, binding upon the Company or any of its subsidiaries that
is material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree, of which I have knowledge, of any governmental
body, agency or court having jurisdiction over the Company or any
Significant Subsidiary, except that I express no opinion as to state
securities or Blue Sky laws or as to compliance with the antifraud
provisions of federal and state securities laws.
5. After due inquiry of officers of the Company and representatives of outside
counsel to the Company, I do not know of any legal or governmental
proceedings pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the company or
any of its Subsidiaries is subject that are required to be described in the
Registration Statement, the Prospectus or the Incorporated Documents and
are not so described or of any statutes or regulations, that are required
to be described in the Registration Statement or the Incorporated Documents
that are not described as required.
6. I do not know of (i) any pending or threatened legal proceedings alleging
that any real property or building held under lease by the Company or any
of its subsidiaries is not held under a valid, subsisting and enforceable
lease, or (ii) any lien, encumbrance or claim with respect to any real or
personal property owned or leased by the Company which could materially
interfere with the conduct of the business of the Company and its
subsidiaries, taken as a whole.
I have not independently verified the accuracy, completeness or fairness of
the statements made or the information contained in the Registration Statement,
the Prospectus or the Incorporated Documents, and I am not passing upon and do
not assume any responsibility therefor. In the course of the preparation by the
Company of the Registration Statement, the Prospectus and the Incorporated
Documents, I have participated in discussions with representatives of the
Company and its independent accountants, in many of which your representatives
and counsel also participated, in which the business and affairs of the Company
and the contents of the Registration Statement, the Prospectus and the
Incorporated Documents were discussed. I have also made inquiries of
representatives of the
B-3
31
Company and its accountants as to whether there have been any material changes
in the affairs of the Company since the Registration Statement became effective.
There is no assurance that all material facts as to the Company and its affairs
were disclosed to me.
Based upon my participation in the foregoing discussions, the foregoing
inquiries and my examination of the documents referred to above and such other
documents as came to my attention as a result of such discussions and inquiries,
(i) I am of the opinion that the Registration Statement and Prospectus (except
for financial statements and schedules, including the notes thereto, and other
financial and statistical data included therein, as to which I express no
opinion) comply as to form in all material respects with the Act and the
applicable rules and regulations of the Commission thereunder, and (ii) I have
no reason to believe that (except for financial statements and schedules,
including the notes thereto, and other financial and statistical data as to
which I express no belief) the Registration Statement when it became effective
taken together with the Incorporated Documents contained, and as of today
contains, any untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) I have no reason to believe that (except for
financial statements and schedules, including the notes thereto, and other
financial and statistical data as to which I express no belief) the Prospectus
and the Incorporated Documents taken together as of today contain any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
This opinion is furnished by us to me as the Representatives of the several
Underwriters and is solely for the benefit of the several Underwriters
Very truly yours
Xxxx X. Xxxxxx
Senior Vice President and General Counsel
B-4
32
EXHIBIT C
October __, 1996
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx, Sachs & Co.
Salomon Brothers Inc
as Representatives of the several
U.S. Underwriters named in Schedule I
to the Underwriting Agreement referred
to below
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. International Limited
Xxxxxxx Sachs International
Salomon Brothers International Limited
as Representatives of the several
International Underwriters named in
Schedule II to the Underwriting
Agreement referred to below
x/x Xxxxxx Xxxxxxx & Xx. Xxxxxxxxxxxxx Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Dear Sirs and Mesdames:
We have acted as counsel for you and the other several Underwriters (the
"Underwriters") named in Schedules I and II to the Underwriting Agreement dated
October __, 1996 (the "Underwriting Agreement") between The Neiman Marcus Group,
Inc., a Delaware corporation (the "Company"), and yourselves, as representatives
of the several Underwriters, under which you and such other Underwriters
severally agreed to purchase from the Company 8,000,000 shares of its common
stock, par value $0.01 per share (the "Firm Shares"). [The Firm Shares and the
1,200,000 shares (the "Additional Shares") of common stock ($0.01 par value) to
be purchased from the Company pursuant to the
33
overallotment option provided for by the Underwriting Agreement are hereinafter
collectively referred to as the Shares.]
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of such documents, corporate records, certificates of public
officials and other instruments as we have deemed necessary or advisable for the
purpose of rendering this opinion.
We have participated in the preparation of the Company's registration
statement on Form S-3 (File No. 333-11721) and Amendments Nos. 1 and 2 thereto,
relating to the offering of the Shares (other than the documents incorporated by
reference therein (the "Incorporated Documents")) filed with the Securities and
Exchange Commission (the "Commission") pursuant to the provisions of the
Securities Act of 1933, as amended (the "Act"). In addition, we have received
oral confirmation from the Staff of the Commission that the registration
statement, as then amended, was declared effective under the Act on October __,
1996. The registration statement, as amended at the time it became effective,
including the Incorporated Documents, is hereinafter referred to as the
"Registration Statement", and the related U.S. and International prospectuses,
including the Incorporated Documents, in the respective forms first used to
confirm sales of the Shares are hereinafter referred to as the "Prospectus".
Based upon the foregoing, we are of the opinion that:
(i) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of the Underwriting Agreement, will
be validly issued, fully paid and non-assessable, and the issuance of the
Shares will not be subject to any preemptive or similar rights; and
(ii) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
We have considered the matters required to be included in the Registration
Statement and Prospectus and the information contained therein. We are of the
opinion that the statements set forth in the Prospectus under the caption
"Underwriters", insofar as such statements constitute a summary of the documents
referred to therein, fairly present in all material respects the information
called for with respect to such documents and fairly summarize in all material
respects the matters referred to therein.
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34
We have not ourselves checked the accuracy or completeness of, or otherwise
verified, the information furnished with respect to other matters in the
Registration Statement or the Prospectus. We have generally reviewed and
discussed with certain officers and employees of the Company, counsel for the
Company, special counsel for the Company, independent public accountants for the
Company and your representatives, the information furnished, whether or not
subject to our check and verification. On the basis of such consideration,
review and discussion, but without independent check or verification except as
stated, (i) we are of the opinion that the Registration Statement and the
Prospectus (except for financial statements and schedules and other financial
and statistical data included or incorporated by reference therein, as to which
we express no opinion) comply as to form in all material respects with the Act
and the applicable rules and regulations of the Commission thereunder, (ii) we
have no reason to believe that (except for financial statements and schedules
and other financial and statistical data included or incorporated by reference
therein, as to which we are not called upon to express a belief) the
Registration Statement and the prospectus included therein at the time the
Registration Statement became effective contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading and (iii) we have no
reason to believe that (except for financial statements and schedules and
financial and statistical data included or incorporated by reference therein, as
to which we express no opinion), the Prospectus contains any untrue statement of
a material fact or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
We have examined the opinions dated the date hereof of Ropes & Xxxx,
outside counsel to the Company, and Xxxx X. Xxxxxx, counsel to the Company,
delivered to you pursuant to paragraphs (c) and (d) of Section 5 of the
Underwriting Agreement, and we believe that on their face such opinions are
substantially responsive to the requirements of the Underwriting Agreement. We
have also examined the letters of Deloitte & Touche LLP, independent public
accountants for the Company, dated October __, 1996 and the date hereof,
relating to the financial statements and other financial information included in
the Registration Statement and the Prospectus and the other matters referred to
therein, delivered to you pursuant to paragraph (f) of Section 5 of the
Underwriting Agreement. We participated in discussions with representatives of
Deloitte & Touche LLP and with your representatives relating to the forms of
such letters, and we believe that such letters are substantially in the forms
agreed to.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York, the federal laws of the
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35
United States of America and the General Corporation Law of the State of
Delaware.
This opinion is rendered solely to you in connection with the above matter.
This opinion may not be relied upon by you for any other purpose or relied upon
by or furnished to any other person without our prior written consent.
Very truly yours,
C-4
36
EXHIBIT D
[FORM OF LOCK-UP LETTER]
____________, 1996
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx, Sachs & Co.
Salomon Brothers Inc
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx & Co. International Limited
Xxxxxxx Sachs International
Salomon Brothers International Limited
c/o Morgan Xxxxxxx & Co. International Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx
Xxxxxxx") and Xxxxxx Xxxxxxx & Co. International Limited ("MSIL") propose to
enter into an Underwriting Agreement (the "Underwriting Agreement") with The
Neiman Marcus Group, Inc., a Delaware corporation (the "Company") providing for
the public offering (the "Public Offering") by the several Underwriters,
including Xxxxxx Xxxxxxx and MSIL (the "Underwriters") of shares (the "Shares")
of the common stock, par value $.01 per share of the Company (the "Common
Stock").
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned
hereby agrees that, without the prior written consent of Xxxxxx Xxxxxxx on
behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending 90 days after the date of the final prospectus relating
to the Public Offering (the "Prospectus"), (1) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, or otherwise transfer
or dispose of, directly or
D-1
37
indirectly, any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock (whether such shares or any such
securities are now owned by the undersigned or are hereafter acquired), or (2)
enter into any swap or other arrangement that transfers to another, in whole or
in part, any of the economic consequences of ownership of the Common Stock,
whether any such transaction described in clause (1) or (2) above is to be
settled by delivery of Common Stock or such other securities, in cash or
otherwise, other than the surrendering of an option to purchase Common Stock in
exchange for a cash payment equal to the value of the option. In addition, the
undersigned agrees that, without the prior written consent of Xxxxxx Xxxxxxx on
behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending 90 days after the date of the Prospectus, make any demand
for or exercise any right with respect to, the registration of any shares of
Common Stock or any security convertible into or exercisable or exchangeable for
Common Stock.
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
--------------------------------
(Name)
--------------------------------
(Address)
D-2
