EXHIBIT 4.1
▇▇▇▇▇ Apparel Group, Inc.
▇▇▇▇▇ Apparel Group Holdings, Inc.
▇▇▇▇▇ Apparel Group USA, Inc.
Nine West Group Inc.
Debt Securities, Preferred and Common Stock
Underwriting Agreement
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Ladies and Gentlemen:
▇▇▇▇▇ Apparel Group, Inc., a Pennsylvania corporation (the
"Company") proposes, subject to the terms and conditions stated herein, to
issue and sell to the Underwriters named in a schedule to the Terms
Agreement (as defined in Article 2 below) (the "Underwriters") from time to
time certain of its preferred stock or common stock (the "Offered Equity
Securities"). The Company, ▇▇▇▇▇ Apparel Group USA, Inc., a Pennsylvania
corporation ("▇▇▇▇▇ USA"), ▇▇▇▇▇ Apparel Group Holdings, Inc., a Delaware
corporation ("▇▇▇▇▇ Holdings") and Nine West Group Inc., a Delaware
corporation ("Nine West" and, together with the Company, ▇▇▇▇▇ USA and
▇▇▇▇▇ Holdings, the "Issuers") propose, subject to the terms and conditions
stated herein, to issue and sell to the Underwriters from time to time
certain of their debt securities (the "Offered Debt Securities" and,
together with the Offered Equity Securities, the "Offered Securities"). The
representatives of the Underwriters, if any, specified in a Terms Agreement
are hereinafter referred to as the "Representatives"; provided, however,
that if the Terms Agreement does not specify any representative of the
Underwriters, the term "Representatives", as used in this Agreement, shall
mean the Underwriters. If the Offered Securities are debt securities: The
Offered Securities will be issued under an indenture, dated as of
_________, ____ (the "Indenture"), between the Issuers and a trustee as
Trustee, in one or more series, which series may vary as to interest rates,
maturities, redemption provisions, selling prices and other terms. If the
Offered Securities are preferred stock: The Offered Securities may be
issued in one or more series, which series may vary as to dividend rates,
redemption provisions, selling prices and other terms. Particular series or
offerings of Offered Securities will be sold pursuant to a Terms Agreement,
for resale in accordance with terms of offering determined at the time of
sale.
1. As of the date of each Terms Agreement, the Company represents
and warrants to, and agrees, or, in the case of Offered Debt Securities,
the Issuers, jointly and severally, represent and warrant to, and agree
with, each Underwriter that:
(a) A registration statement on Form S-3 relating to the
Offered Securities has been filed with the Securities and Exchange
Commission (the "Commission") and has become effective; and no
stop order suspending the effectiveness of the initial
registration statement, any post-effective amendment thereto or
Rule 462(b) registration statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened by
the Commission. Such registration statement, as amended at the
time of any Terms Agreement, is hereinafter referred to as the
"Registration Statement", and the prospectus included in such
Registration Statement, as supplemented and amended as
contemplated by Section 2 to reflect the terms of the Offered
Securities (if they are debt securities or preferred stock) and
the terms of the offering of the Offered Securities, as first
filed with the Commission pursuant to and in accordance with Rule
424(b) ("Rule 424(b)") under the Securities Act of 1933, as
amended (the "Act"), including all material incorporated by
reference therein, is hereinafter referred to as the "Prospectus";
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(b) No order preventing or suspending the use of any
preliminary Prospectus has been issued by the Commission, and each
preliminary Prospectus, at the time of filing thereof, conformed
in all material respects to the requirements of the Act and the
rules and regulations of the Commission thereunder ("Rules and
Regulations"), and did not contain an 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, in the
light of the circumstances under which they were made, not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company, or, in the case of Offered Debt
Securities, any Issuer, by an Underwriter expressly for use
therein;
(c) The Registration Statement conforms and on the date
of each Terms Agreement will conform, and the Prospectus and any
further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the Rules and Regulations and do not
and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the
applicable date as to the Prospectus and any amendment or
supplement thereto and as of the date of each Terms Agreement,
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; provided, however, that
this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with
information furnished in writing to the Company, or, in the case
of Offered Debt Securities, any Issuer, by an Underwriter
expressly for use therein;
(d) The Company and each of its subsidiaries has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, is
duly qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which ownership or lease of
property or the conduct of its business requires such
qualification and has all power and authority necessary to own or
hold its properties and to conduct the business in which it is
engaged, except where the failure to so qualify or have such power
or authority would not, singularly or in the aggregate, have a
material adverse effect on the condition, financial or otherwise,
earnings, business affairs or business prospects of the Company
and its subsidiaries taken as a whole (a "Material Adverse
Effect");
(e) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital
stock of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and conform to the
description of the capital stock contained in the Prospectus; and
all of the issued shares of capital stock of each subsidiary of
the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and (except for directors'
qualifying shares and except as set forth in the Prospectus) are
owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims, except as set forth in
the Prospectus;
(f) If the Offered Securities are debt securities: The
Offered Securities have been duly and validly authorized and, when
issued and delivered against payment therefor as provided pursuant
to the Terms Agreement, will be duly and validly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Issuers and will be entitled to
the benefits provided by the Indenture under which they are to be
issued, which is substantially in the form filed as an exhibit to
the Registration Statement; the Indenture has been duly authorized
and duly qualified under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act") and, when executed and
delivered by the Issuers and the Trustee, will constitute a valid
and legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability
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relating to or affecting creditor's rights and to general equity
principles; and the Offered Securities and the Indenture will
conform to the description thereof in the Registration Statement
and the Prospectus;
(g) If the Offered Securities are common stock or are
convertible into common stock: The Offered Securities to be issued
and sold by the Company to the Underwriters pursuant to the Terms
Agreement have been duly and validly authorized and, when issued
and delivered against payment therefor as provided herein, will be
duly and validly issued and fully paid and nonassess able and will
conform to the description of the common stock contained in the
Prospectus; and, except as described in the Prospectus, the
shareholders of the Company have no preemptive rights with respect
to the Offered Securities;
(h) If the Offered Securities are preferred stock: The
Offered Securities have been duly authorized and, when the Offered
Securities have been delivered and paid for in accordance with the
Terms Agreement on the Closing Date, such Offered Securities will
have been validly issued, fully paid and nonassessable and will
conform to the description thereof contained in the Prospectus;
and, except as described in the Prospectus, the shareholders of
the Company have no preemptive rights with respect to the Offered
Securities;
(i) If the Offered Securities are convertible: When the
Offered Securities are delivered and paid for pursuant to the
Terms Agreement at the Time of Delivery, such Offered Securities
will be convertible into common stock of the Company in accordance
with their terms (if the Offered Securities are preferred stock)
or the Indenture (if the Offered Securities are debt securities);
the shares of common stock initially issuable upon conversion of
such Offered Securities have been duly authorized and reserved for
issuance upon such conversion and, when issued upon such
conversion, will be validly issued, fully paid and nonassessable;
the outstanding shares of common stock have been duly authorized
and validly issued, are fully paid and nonassessable and conform
to the description thereof contained in the Prospectus; and,
except as described in the Prospectus, the shareholders of the
Company have no preemptive rights with respect to the common
stock;
(j) The execution, delivery and performance of [If the
Offered Securities are debt securities: the Indenture] [If the
Offered Securities are preferred stock: the statement with respect
to shares (the "Statement with Respect to Shares")] and the Terms
Agreement and the issuance and sale of the Offered Securities and
compliance by the Company, or, in the case of Offered Debt
Securities, the Issuers, with all of the provisions thereof will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or (with the giving of notice or the lapse
of time or both) constitute a default under, (A) any material
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, (B) the
provisions of the charter, by-laws or other constitutive documents
of the Company or any of its subsidiaries or (C) any statute or
any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets except in the
cases of clause (A) or (C), such breaches, violations or defaults
that in the aggregate would not have a Material Adverse Effect;
and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Offered Securities
or the consummation by the Company, or, in the case of Offered
Debt Securities, the Issuers, of the transactions contemplated by
the Terms Agreement (including the provisions of this Agreement),
except (A) the registration under the Act of the Offered
Securities and (B) such consents, approvals, authorizations,
registrations or qualifications as (1) may be required under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
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the Trust Indenture Act and applicable state or foreign securities
laws in connection with the purchase and distribution of the
Offered Securities by the Underwriters, (2) may have already been
obtained or made and (3) the failure to obtain or make would not,
individually or in the aggregate, have a Material Adverse Effect;
(k) Neither the Company nor any of its subsidiaries is
(A) in violation of its articles or by-laws, (B) in default in any
material respect, and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party
or by which it is bound, which is material to the Company and its
subsidiaries taken as a whole, or to which any of its properties
or assets is subject or (C) in violation in any material respect
of any law, ordinance, governmental rule, regulation or court
decree to which it or its property or assets may be subject or has
failed to obtain any material license, permit, certificate,
franchise or other governmental authorization or permit necessary
to the ownership of its property or to the conduct of its
business, except for, in the cases of clause (B) or (C), such
defaults, violations or failures to obtain that in the aggregate
would not have a Material Adverse Effect;
(l) The statements set forth in the Prospectus under the
caption "Description of the [Debt Securities/Capital Stock]",
insofar as they purport to constitute a summary of the terms of
the Offered Securities, under the caption "Certain United States
Federal Income Tax Considerations" and under the caption "Plan of
Distribution", insofar as they purport to describe the provisions
of the laws and documents referred to therein, are accurate in all
material respects;
(m) Other than as set forth in the Prospectus, there are
no legal or governmental proceedings pending to which the Company
or any of its subsidiaries is a party or of which any property of
the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a Material Adverse
Effect; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(n) The Company, or, in the case of Offered Debt
Securities, each Issuer is not and, after giving effect to the
offering and sale of the Offered Securities, will not be an
"investment company", as such term is defined in the Investment
Company Act of 1940, as amended (the "Investment Company Act");
(o) BDO ▇▇▇▇▇▇▇, LLP, who have certified certain
financial statements of the Company and its subsidiaries are
independent certified public accountants as required by the Act
and the rules and regulations of the Commission thereunder;
(p) Except as described in the Prospectus, there are no
contracts, agreements or understandings between the Company or
any of its subsidiaries and any person (other than as described in
the Terms Agreement) granting such person the right to require the
Company or any of its subsidiaries to file a registration
statement under the Act with respect to any securities of the
Company or its subsidiaries owned or to be owned by such person or
to require the Company or any of its subsidiaries to include such
securities in the securities registered pursuant to the
Registration Statement or the Prospectus or in any securities
being registered pursuant to any other registration statement
filed by the Company or any of its subsidiaries under the Act;
(q) This Agreement and the Terms Agreement have been duly
authorized, executed and delivered by the Company, or, in the case
of Offered Debt Securities, by the Issuers, and, assuming due
authorization, execution and delivery by the Underwriters,
constitute the valid and binding
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agreement of the Company, or, in the case of Offered Debt
Securities, the Issuers, enforceable against the Company, or, in
the case of Offered Debt Securities, the Issuers, in accordance
with their terms (subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other similar
laws affecting creditors' rights generally from time to time in
effect and to general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith
and fair dealing, regardless of whether in a proceeding in equity
or at law);
(r) If the Offered Securities are common stock or are
convertible into common stock: Except as described in the
Prospectus, the Company has not sold or issued any shares of
common stock during the six-month period preceding the date of the
Terms Agreement, including any sales pursuant to Rule 144A under,
or Regulation D or Regulation S of, the Act other than shares
issued pursuant to employee benefit plans or other employee
compensation plans or pursuant to outstanding options, rights or
warrants;
(s) The consolidated historical and pro forma financial
statements, together with the related notes thereto filed as part
of the Registration Statement or included in the Prospectus comply
as to form in all material respects with the requirements of
Regulation S-X under the Act applicable to registration statements
on Form S-3 under the Act. Such historical financial statements
fairly present the financial position of the Company at the
respective dates indicated and the results of operations and cash
flows for the respective periods indicated, in each case in
accordance with generally accepted accounting principles ("GAAP")
consistently applied throughout such periods. Such pro forma
financial statements have been prepared on a basis consistent with
such historical statements, except for the pro forma adjustments
specified therein, and give effect to assumptions made on a
reasonable basis and in good faith and present fairly the pro
forma position, results of operations and the other information
purported to be shown therein at the respective dates or the
respective periods therein specified. The other financial and
statistical information and data filed as part of the Registration
Statement or included in the Prospectus, historical and pro forma,
are, in all material respects, fairly presented and prepared on a
basis consistent with such financial statements and the books and
records of the Company;
(t) The Company and each of its subsidiaries possess all
licenses, certificates, authorizations and permits which are
material to the Company and its subsidiaries, taken as a whole,
issued by, and have made all declarations and filings with, the
appropriate Federal, state or foreign regulatory agencies or
bodies which are necessary or desirable for the ownership of their
properties or the conduct of their businesses as they will be
described in the Prospectus, except where the failure to possess
or make the same would not, singularly or in the aggregate, have a
Material Adverse Effect, and neither the Company nor any of its
subsidiaries has received notification of any revocation or
modification of any such license, certificate, authorization or
permit or has any reason to believe that any such license,
certificate, authorization or permit will not be renewed in the
ordinary course; and
(u) The Company and each of its subsidiaries owns or
possesses, or can acquire on reasonable terms, adequate rights to
use all material patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service ▇▇▇▇
registrations, copyrights, licenses and know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) necessary for the
conduct of their businesses, except where the failure to own,
possess or acquire the same would not, singularly or in the
aggregate, have a Material Adverse Effect; and the conduct of
their businesses will not conflict in any material respect with,
and neither the Company nor any of its subsidiaries has received
any notice of any claim (other than such claims as would not
reasonably be expected to have a Material Adverse Effect) of
conflict with, any such rights of others.
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2. Purchase and Offering of Offered Securities.
The obligation of the Underwriters to purchase the Offered
Securities will be evidenced by an agreement or exchange of other written
communications ("Terms Agreement") at the time the Company determines, or,
in the case of Offered Debt Securities, the Issuers determine, to sell the
Offered Securities. The Terms Agreement may also amend, modify or
supplement this Agreement as provided therein. The Terms Agreement will
incorporate by reference the provisions of this Agreement, except as
otherwise provided therein, and will specify the firm or firms which will
be Underwriters, the names of any Representatives, the principal amount or
number of Offered Securities to be purchased by each Underwriter, the
purchase price to be paid by the Underwriters and (if the Offered
Securities are debt securities or preferred stock) the terms of the Offered
Securities not already specified (in the Indenture, in the case of Offered
Securities that are debt securities), including, but not limited to,
interest rate (if debt securities), dividend rate (if preferred stock),
maturity (if debt securities), any redemption provisions and any sinking
fund requirements. The Terms Agreement will also specify the time and date
of delivery and payment (such time and date, or such other time not later
than seven full business days thereafter as the Underwriter first named in
the Terms Agreement (the "Lead Underwriter") and the Company, or, in the
case of Offered Debt Securities, the Issuers, agree as the time for payment
and delivery, being herein and in the Terms Agreement referred to as the
"Time of Delivery") the place of delivery and payment and any details of
the terms of offering that should be reflected in the Prospectus supplement
relating to the offering of the Offered Securities. For purposes of Rule
15c6-1 under the Exchange Act, the Time of Delivery (if later than the
otherwise applicable settlement date) shall be the date for payment of
funds and delivery of securities for all the Offered Securities sold
pursuant to the offering. The obligations of the Underwriters to purchase
the Offered Securities will be several and not joint. It is understood that
the Underwriters propose to offer the Offered Securities for sale as set
forth in the Prospectus.
If the Offered Securities are debt securities and the Terms
Agreement specifies "Book- Entry Only" settlement or otherwise states that
the provisions of this paragraph shall apply, the Issuers will deliver
against payment of the purchase price the Offered Securities in the form of
one or more permanent global securities in definitive form (the "Global
Securities") deposited with the Trustee as custodian for The Depository
Trust Company ("DTC") and registered in the name of Cede & Co., as nominee
for DTC. Interests in any permanent global securities will be held only in
book-entry form through DTC, except in the limited circumstances described
in the Prospectus. Payment for the Offered Securities shall be made by the
Underwriters (if the Terms Agreement specifies that the Offered Securities
will not trade in DTC's Same Day Funds Settlement System) by certified or
official bank check or checks in New York Clearing House (next day) funds
or (if the Terms Agreement specifies that the Offered Securities will trade
in DTC's Same Day Funds Settlement System) in Federal (same day) funds by
wire transfer to an account in New York previously designated to the Lead
Underwriter by the Issuers at a bank acceptable to the Lead Underwriter, in
each case drawn to the order of the Issuers at the place of payment
specified in the Terms Agreement on the Closing Date, against delivery to
the Trustee as custodian for DTC of the Global Securities representing all
of the Offered Securities.
3. The Company agrees, or, in the case of Offered Debt
Securities, the Issuers, jointly and severally, agree, with each of the
Underwriters:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Terms Agreement,
or, if applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Act; to make no further amendment or any supplement to the
Registration Statement or Prospectus which shall be disapproved by the
Representatives promptly after reasonable notice thereof; to advise the
Representatives promptly after it receives notice thereof, of the time when
any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has
been filed and to furnish the
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Representatives with copies thereof; to advise the Representatives promptly
after it receives notice thereof, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of the
Prospectus, of the suspension of the qualification of the Offered
Securities for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by
the Commission for the amending or supplementing of the Registration
Statement or the Prospectus or for additional information; and, in the
event of the issuance of any stop order or of any order preventing or
suspending the use of the Prospectus or suspending any such qualification,
to promptly use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Offered Securities
for offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of the Offered
Securities, provided that in connection therewith the Company, or, in the
case of Offered Debt Securities, any Issuer, shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) Prior to Noon, New York City time, on the New York Business
Day next succeeding the date of the Terms Agreement and from time to time,
to furnish the Underwriters with copies of the Prospectus in New York City
in such quantities as the Representatives may reasonably request, and, if
the delivery of the Prospectus is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus in
connection with the offering or sale of the Offered Securities and if at
such time any events shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in light of the circumstances
under which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus in order to comply with
the Act [For debt securities: or the Trust Indenture Act, or] to notify the
Representatives and upon the request of the Representatives to prepare and
furnish without charge to each Underwriter and to any dealer in securities
as many copies as the Underwriters may from time to time reasonably request
of an amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance; and in case
any Underwriter is required to deliver the Prospectus in connection with
sales of any of the Offered Securities at any time nine months or more
after the time of issue of the Prospectus, upon request of the
Representatives but at the expense of such Underwriter, to prepare and
deliver to such Underwriter as many copies as the Representatives may
request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the date
of the Terms Agreement, an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of
the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) During the period beginning at the time of the execution of
the Terms Agreement and ending the number of days after the Time of
Delivery specified under "Blackout" in the Terms Agreement, not to offer,
sell, contract to sell or otherwise dispose of, except as provided
hereunder and under the Terms Agreement any securities of the Company, or,
in the case of Offered Debt Securities, the Issuers, that are substantially
similar to the Offered Securities including but not limited to any
securities that are convertible into or exchangeable for, or that represent
the right to receive, any such substantially similar securities (other than
(i) pursuant to employee stock option plans existing on, or upon the
conversion or exchange of convertible or exchangeable securities
outstanding as of, the date of this Agreement and (ii) shares of common
stock issuable in connection with the acquisition of Sun Apparel, Inc.),
without your prior written consent;
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(f) To cause each of the persons listed on a schedule to the Term
Agreement to enter into a lock-up agreement with the Underwriters, in form
and substance satisfactory to the Underwriters, providing that, during the
period beginning at the time of execution of the Terms Agreement and ending
the number of days after the Time of Delivery specified under "Blackout" in
the Terms Agreement, such person will not offer, sell, contract to sell or
otherwise dispose of, except as provided hereunder or under the Terms
Agreement, any securities of the Company, or, in the case of Offered Debt
Securities, the Issuers, that are substantially similar to the Offered
Securities, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right to
receive, the Offered Securities or any such substantially similar
securities (other than pursuant to employee stock option plans existing on,
or upon the conversion or exchange of convertible or exchangeable
securities outstanding as of, the date of the Terms Agreement), without the
prior written consent of the Underwriters;
(g) During a period of three years from the effective date of the
Registration Statement, to furnish to the Representatives upon written
request copies of all reports or other communications (financial or other)
furnished to shareholders, and to deliver to the Representatives upon
written request as soon as they are available, (A) copies of any
reports and financial statements furnished to or filed with the Commission
or any national securities exchange on which the Offered Securities or any
class of securities of the Company is listed [For debt securities: and (B)
the documents specified in the Indenture as in effect at the Time of
Delivery];
(h) To use the net proceeds received by it from the sale of the
Offered Securities pursuant to this Agreement in the manner specified in
the Prospectus under the caption "Use of Proceeds";
(i) If Offered Securities are common stock: To use its best
efforts to list for quotation the Offered Securities on the New York Stock
Exchange ("NYSE"); and
(j) If the Company, or, in the case of Offered Debt Securities,
each Issuer, elects to rely upon Rule 462(b), the Company, or, in the case
of Offered Debt Securities, the Issuers, shall file a Rule 462(b)
Registration Statement with the Commission in compliance with Rule 462(b)
by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and
the Company shall at the time of filing either pay to the Commission the
filing fee for the Rule 462(b) Registration Statement or give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the
Act.
4. The Company, or, in the case of Offered Debt Securities, each
Issuer, covenants and agrees with the several Underwriters that the
Company, or, in the case of Offered Debt Securities, the Issuers, will pay
or cause to be paid the following: (i) the fees, disbursements and expenses
of the Company's, or, in the case of Offered Debt Securities, the Issuers',
counsel and accountants in connection with the registration of the Offered
Securities under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, the
Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost
of printing or producing any Agreement among Underwriters, this Agreement,
the Terms Agreement, [If the Offered Securities are debt securities: the
Indenture,] closing documents (including any compilations thereof) and any
other documents in connection with the offering, purchase, sale and
delivery of the Offered Securities; (iii) all expenses in connection with
the qualification of the Offered Securities for offering and sale under
state securities laws as provided in Section 3 hereof, including the fees
and disbursements of counsel for the Underwriters (not in excess, in the
aggregate, of an amount specified in the Terms Agreement) in connection
with such qualification; (iv) any fees charged by securities rating
services for rating the Offered Securities] [If the Offered Securities are
common stock: (v) all fees and expenses in connection with listing the
Offered Securities on the NYSE]; (vi) the filing fees incident to securing
any required review by the National Association of Securities Dealers, Inc.
of the terms of the sale of the Offered Securities; (vii) the cost of
preparing certificates evidencing the Offered Securities; (viii) the fees
and expenses [If the Offered Securities are debt securities: of the Trustee
and any agent of the Trustee and
9
the fees and disbursements of counsel for the Trustee in connection with
the Indenture and the Offered Securities] [If the Offered Securities are
common stock: any transfer agent or registrar]; and (ix) all other costs and
expenses incident to the performance of its obligations hereunder and under
the Terms Agreement which are not otherwise specifically provided for in
this Section. It is understood, however, except as provided in this
Section, and Sections 6 and 9 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their counsel, transfer
taxes on resale of any of the Offered Securities by them, and any
advertising expenses connected with any offers they may make.
5. Conditions of the Obligations of the Underwriters.
The respective obligations of the Underwriters hereunder and
under the Terms Agreement as to the Offered Securities to be delivered at
each Time of Delivery, shall be subject, in the sole discretion of the
Representatives, to the condition that all representations and warranties
of the Company, or, in the case of Offered Debt Securities, the Issuers,
herein are, at and as of the Time of Delivery, true and correct, the
condition that the Company, or, in the case of Offered Debt Securities, the
Issuers, shall have performed all of its or their obligations hereunder and
under the Terms Agreement theretofore to be performed and the following
additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; if the Company has, or, in the case of Offered
Debt Securities, the Issuers have, elected to rely upon Rule 462(b), the
Rule 462(b) Registration Statement shall have become effective by 10:00
P.M., Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the reasonable satisfaction of the Representatives as the
case may be;
(b) _________, counsel for the Underwriters, shall have furnished
to the Representatives, such written opinion or opinions, dated the Time of
Delivery, with respect to the matters covered in paragraphs (i), (ii) and
(iii) and the paragraph following clause (vii) of subsection (c) below,
paragraph (i) of subsection (d) below, and paragraph (i) of subsection (e)
below as well as such other related matters as the Representatives, as the
case may be, may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable them
to pass upon such matters;
(c) Cravath, Swaine & ▇▇▇▇▇, as special New York counsel for the
Company, or, in the case of Offered Debt Securities, the Issuers, shall
have furnished to the Representatives, as the case may be, their written
opinion, dated the Time of Delivery, in form and substance satisfactory to
the Representatives, to the effect that:
(i) The Registration Statement was declared effective
under the Act as of the date and time specified in such opinion,
the Prospectus was filed with the Commission pursuant to the sub-
paragraph of Rule 424(b) of the Rules and Regulations specified in
such opinion on the date specified therein and no stop order
suspending the effectiveness of the Registration Statement has
been issued and, to the knowledge of such counsel, no proceeding
for that purpose is pending or threatened by the Commission;
(ii) If the Offered Securities are debt securities:
Assuming that the Indenture has been duly and validly authorized,
executed and delivered by the Issuers and, assuming due
authorization, execution and delivery by the Trustee, the
Indenture constitutes the valid and binding agreement of the
Issuers, enforceable against the Issuers in accordance with its
terms (subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and
10
other similar 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 in a proceeding in
equity or at law); and the Indenture has been duly qualified under
the Trust Indenture Act;
(iii) If the Offered Securities are debt securities:
Assuming that the Offered Securities have been duly and validly
authorized by the Issuers and when duly executed by the Issuers in
accordance with the terms of the Indenture and, assuming due
authentication of the Offered Securities by the Trustee, upon
delivery to the Underwriters against payment therefor in
accordance with the terms of the Terms Agreement, the Offered
Securities will have been validly issued and delivered, and will
constitute valid and binding obligations of the Issuers entitled
to the benefits of the respective Indenture and enforceable
against the Issuers in accordance with their terms (subject to
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws affecting creditors'
rights generally from time to time in effect and to general
principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing,
regardless of whether in a proceeding in equity or at law);
(iv) No authorization, approval or other action by, and no
notice to, consent of, order of, or filing with, any United States
Federal, New York or, to the extent required under the General
Corporation Law of the State of Delaware, Delaware governmental
authority or regulatory body is required for the consummation of
the transactions contemplated by this Agreement or the Terms
Agreement, except such as have been obtained under the Act or the
Trust Indenture Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Offered Securities by the Underwriters;
(v) None of the issue and sale of the Offered Securities,
the consummation of any other of the transactions contemplated by
this Agreement or the Terms Agreement or the performance of the
terms of this Agreement or the Terms Agreement (i) will conflict
with, result in a breach of, or constitute a default under, the
articles or by-laws of the Company or any of its subsidiaries, or
the terms of any indenture or other agreement or instrument to
which the Company or any of its subsidiaries is a party or bound
and listed as an exhibit to the Company's most recent Annual
Report on Form 10-K or any subsequent Commission filings, except
as would not have a Material Adverse Effect or (ii) will
contravene in any material respect any law, rule or regulation of
the United States or the State of New York or the General
Corporation Law of the State of Delaware, or, to our knowledge,
any order or decree of any court or government agency or
instrumentality. In connection with the foregoing, we point out
that certain of the agreements referred to in clause (i) above are
or may be governed by laws other than the laws of the State of New
York. For purposes of the opinion expressed in this paragraph,
however, we have assumed that all such agreements are governed by
and would be interpreted in accordance with the laws of the State
of New York;
(vi) The statements made in the Prospectus under the
caption "Description of Debt Securities", insofar as they purport
to constitute summaries of the terms of the debt securities and
under the caption "Certain United States Federal Income Tax
Considerations," insofar as they purport to describe the material
tax consequences of an investment in the Offered Securities, fairly
summarize the matters therein described;
(vii) The Company, or, in the case of Offered Debt
Securities, each Issuer, is not and, upon sale of the Offered
Securities to be issued and sold thereby in accordance herewith
and the application of the net proceeds to the Company, or, in the
case of Offered Debt Securities, the Issuers, of such sale as
described in the Prospectus under the caption "Use of Proceeds,"
will not be an "investment company" within the meaning of the
Investment Company Act.
11
In addition, such counsel shall also state that such counsel has
participated in conferences with certain officers of, and with the
accountants and counsel for the Company, or, in the case of Offered Debt
Securities, the Issuers, and with certain representatives of, and counsel
for, the Underwriters, concerning the preparation of the Registration
Statement and the Prospectus and that although such counsel has made
certain inquiries and investigations in connection with the preparation of
the Registration Statement and Prospectus, the limitations inherent in the
role of outside counsel are such that such counsel cannot and does not
assume responsibility for the accuracy or completeness of the statements
made in the Registration Statement and Prospectus, except insofar as such
statements relate to such counsel and except to the extent set forth in
clause (vi) above. Subject to the foregoing, such counsel shall advise you
that its work in connection with this matter did not disclose any
information that gave such counsel reason to believe that the Registration
Statement at the time the Registration Statement was last amended or deemed
to be amended or the Prospectus, as of its date or as of the Time of
Delivery (in each case except for the financial statements and other
information of a statistical, accounting or financial nature included or
incorporated by reference therein, [If the Offered Securities are debt
securities: and the Statement of Eligibility (Form T-1) included as an
exhibit to the Registration Statement,] as to which we do not express any
view), was not appropriately responsive in all material respects to the
requirements of the Act [If the Offered Securities are debt securities: and
the Trust Indenture Act] and the Rules and Regulations or the Registration
Statement, at the time it became effective was last amended or deemed to be
amended, contained an 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, or that the Prospectus, at the Time
of Delivery, includes an 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
(in each case except for the financial statements and other information of
a statistical, accounting or financial nature included therein, as to which
such counsel does not express any view).
The opinion of such counsel may be limited to the laws of the
State of New York, the General Corporation Law of the State of Delaware and
the Federal laws of the United States.
(d) ▇▇▇ ▇. ▇▇▇▇▇▇, Esq., general counsel to the Company, shall
have furnished to the Representatives, as the case may be, his written
opinion, dated such Time of Delivery, in form and substance reasonably
satisfactory to the Representatives, to the effect that:
(i) Each of ▇▇▇▇▇ Holdings and Nine West has been duly
incorporated and is validly existing as a corporation under the
laws of the State of Delaware (which opinion may be based solely
on a certificate of the Secretary of State of Delaware), and has
all requisite corporate power and authority to own, lease and
operate its properties and to conduct its business as described in
the Prospectus. Each of the Company and its subsidiaries is
qualified as a foreign corporation to transact business and is in
good standing (which opinion may be based solely on a certificate
of the Secretary of State of such state) in each jurisdiction in
which the ownership or leasing of its properties or the conduct of
its business requires such qualification, other than jurisdictions
where the failure to so qualify would not have a Material Adverse
Effect;
(ii) All of the outstanding shares of capital stock of the
Company's direct and indirect subsidiaries have been duly and
validly authorized and issued, are fully paid and non-assessable
and are owned directly or indirectly by the Company, free and
clear of any material lien, charge, encumbrance, security
interest, restriction upon voting or any claim of third parties,
except as set forth in the Registration Statement or the
Prospectus (including the exhibits thereto);
(iii) To such counsel's knowledge, there is no pending or
threatened action, suit or proceeding before any court or
governmental agency or authority or arbitrator involving the
Company or any of its subsidiaries or the business, assets or
rights of the Company or any of its subsidiaries (i) that purports
to affect the legality, validity or enforceability of this
Agreement or
12
the Terms Agreement or (ii) as to which there is a probability of
an adverse determination and which, if adversely determined, would
be likely in such counsel's judgment to have a Material Adverse
Effect on the ability of the Company or any of its subsidiaries to
perform their obligations under this Agreement or the Terms
Agreement;
(iv) To the knowledge of such counsel, except as described
in the Prospectus there are no contracts, agreements or
understandings between the Company or any of its subsidiaries
(other than as set forth in the Terms Agreement), and any person
granting such person the right to require the Company or any of
its subsidiaries to file a registration statement under the Act
with respect to any securities of the Company, or, in the case of
Offered Debt Securities, the Issuers, owned or to be owned by such
person or to require the Company or any of its subsidiaries to
include such securities in the securities registered pursuant to
the Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Company
or any of its subsidiaries;
(v) To such counsel's knowledge, no authorization,
approval or other action by, and no notice to, consent of, order
of or filing with, any United States Federal or New York
governmental authority or regulatory body is required for the
consummation of the transactions contemplated by this Agreement or
the Terms Agreement, except as required under the Act, [If the
Offered Securities are debt securities: the Trust Indenture Act]
or the blue sky laws of any jurisdiction or except such as have
been obtained;
(vi) None of the issuance and sale of Offered Securities,
the consummation of any other of the transactions contemplated by
this Agreement or the Terms Agreement or the performance of the
terms hereof or of the Terms Agreement will (i) conflict with,
result in a breach of, or constitute a default under (A) the
articles or by-laws of the Company or any of its subsidiaries, or
(B) to such counsel's knowledge, the terms of any indenture or any
other material agreement or instrument to which the Company or any
of its subsidiaries is a party or bound, except as would not have
a Material Adverse Effect, or (ii) contravene in any material
respect any law, rule or regulation of the United States or the
State of New York or, to such counsel's knowledge, any order or
decree of any court or government agency or instrumentality in
each case, applicable to the Company or any of its subsidiaries;
(vii) The Statements made in the Prospectus under the
caption "Description of Capital Stock," insofar as they purport to
constitute summaries of the terms of the capital stock, fairly
summarize the matters therein described;
(viii) If the Offered Securities are common stock: The
Offered Securities have been duly and validly authorized, and,
when issued and delivered to and paid for by the Underwriters
pursuant to this Agreement and the Terms Agreement, will be
validly issued, fully paid and nonassessable; and
(ix) If Offered Debt Securities: This Agreement and the
Terms Agreement have been duly and validly authorized, executed
and delivered by ▇▇▇▇▇ Holdings and Nine West.
The opinion of such counsel may be limited to the laws of the
State of New York, the General Corporation Law of the State of Delaware and
the Federal laws of the United States.
13
(e) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇, as special Pennsylvania
counsel, shall have furnished to the Representatives, as the case may be,
their written opinion, dated the Time of Delivery, in form and substance
reasonably satisfactory to the Representatives, to the effect that:
(i) The Company and ▇▇▇▇▇ USA (collectively, the
"Pennsylvania Issuers") are corporations organized and validly
subsisting under the laws of the Commonwealth of Pennsylvania,
and have the requisite corporate power and authority to own and
hold under lease their property and to conduct their business as
currently conducted by the Company and ▇▇▇▇▇ USA;
(ii) This Agreement and the Terms Agreement has been duly
and validly authorized, executed and delivered by the Company [If
the Offered Securities are debt securities: the Pennsylvania
Issuers];
(iii) The execution, delivery and performance by the Company
[If the Offered Securities are debt securities: the Pennsylvania
Issuers] of this Agreement and the Terms Agreement, the issuance,
authentication, sale and delivery of the Offered Securities and
compliance by the Company [If the Offered Securities are debt
securities: the Pennsylvania Issuers] with the terms thereof and
the consummation of the transactions contemplated by this
Agreement and the Terms Agreement will not result in any
violation of any Pennsylvania statute or any published judgment,
order or decree issued by a Pennsylvania court binding on such
Pennsyvania Issuers and of which such counsel has knowledge, any
published rule or regulation of any Pennsylvania governmental
agency or any other Pennsylvania body having jurisdiction over
the Company [If the Offered Securities are debt securities: the
Pennsylvania Issuers] or any of its properties or assets, and no
consent, approval, authorization or order of, or filings or
registration with, any such governmental agency or body under any
such statute, judgment, order, decree, rule or regulation is
required for the execution, delivery and performance by the
Company of this Agreement and the Terms Agreement, the issuance,
authentication, sale and delivery of the Offered Securities and
compliance by the Company [If the Offered Securities are debt
securities: the Pennsylvania Issuers] with the terms thereof and
the consummation of the transactions contemplated by this
Agreement and the Terms Agreement, except for such consents,
approvals, authorizations, filings, registrations or
qualifications (i) which have been obtained or made prior to the
closing of any such sale, and (ii) as may be required to be
obtained or made under the Act and applicable state securities
laws;
(iv) To such counsel's knowledge, there are no pending or
overtly threatened actions or suits or judicial, arbitral,
administrative or other proceedings within the Commonwealth of
Pennsylvania to which the Company [If the Offered Securities are
debt securities: the Pennsylvania Issuers], is a party or of
which any property or assets of the Company [If the Offered
Securities are debt securities: the Pennsylvania Issuers] is the
subject which (i) singularly or in the aggregate if determined
adversely, to the Company [If the Offered Securities are debt
securities: the Pennsylvania Issuers], could reasonably be
expected to have a Material Adverse Effect, or (ii) questions the
validity or enforceability of this Agreement or the Terms
Agreement or any action taken or be taken pursuant thereto.
The opinion of such counsel may be limited to the laws of the
State of Pennsylvania and the Federal laws of the United States.
(f) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time, on the
effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of the Terms Agreement and also at
the Time of Delivery, BDO ▇▇▇▇▇▇▇, LLP shall have furnished to the
Representatives a letter or letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to the Representatives;
14
(g) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included in the Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus,
and (ii) since the respective dates as of which information is given in the
Prospectus there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any change, or
any development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is in the judgment of the Representatives
so material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Offered Securities
on the terms and in the manner contemplated in the Prospectus;
(h) On or after the date of the Terms Agreement (i) no
downgrading shall have occurred in the rating accorded the Issuers' debt
securities or the Company's preferred stock by any nationally recognized
statistical rating organization, as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization
shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of the Issuers' debt
securities or the Company's preferred stock;
(i) On or after the date of the Terms Agreement there shall not
have occurred any of the following: (i) a material suspension or material
limitation in trading in securities generally on the NYSE or on NASDAQ;
(ii) a material suspension or material limitation in trading in the
Company's securities on the NYSE; (iii) a general moratorium on commercial
banking activities declared by either Federal or New York State
authorities; or (iv) the outbreak or escalation of major hostilities
involving the United States or the declaration by the United States of a
national emergency or war, if the effect of any such event specified in
this clause (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Offered Securities on the terms and in the manner
contemplated in the Prospectus;
(j) If the Offered Securities are common stock: At the Time of
Delivery the New York Stock Exchange shall have approved the Offered
Securities to be sold by the Company for inclusion, subject only to
official notice of issuance and evidence of satisfactory distribution;
(k) If the Offered Securities are common stock: The Company has
obtained and delivered to the Underwriters executed copies of an agreement
from the persons identified in a schedule to the Terms Agreement to the effect
set forth in Subsection 3(f) hereof in form and substance satisfactory to
the Representatives;
(l) The Company shall have complied with the provisions of
Section 3(c) hereof with respect to the furnishing of Prospectuses on the
New York Business Day next succeeding the date of the Terms Agreement; and
(m) The Company, or, in the case of Offered Debt Securities, the
Issuers, shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery certificates of officers of the
Company, or, in the case of Offered Debt Securities, the Issuers,
satisfactory to the Representatives as to (i) the accuracy of the
representations and warranties of the Company, or, in the case of Offered
Debt Securities, the Issuers, herein at and as of such Time of Delivery,
(ii) the performance in all material respects by the Company, or, in the
case of Offered Debt Securities, the Issuers, of all of its or their
obligations hereunder and under the Terms Agreement to be performed at or
prior to such Time of Delivery, (iii) the absence of untrue statements of
material facts or omissions of material facts required to be stated or
15
necessary to make statements not misleading in the Registration Statement
and the Prospectus, (iv) absence of events since the Effective Date which
should be set forth in a supplement or amendment to the Registration
Statement and the Prospectus, and (v) such other matters as the Underwriter
may reasonably request and the Company shall have furnished or caused to be
furnished certificates as to the matters set forth in subsections (a) and
(h) of this Section and as to such other matters as the Representatives may
reasonably request.
6. Indemnifications.
(a) The Company, or, in the case of Offered Debt Securities, the
Issuers, jointly and severally, will indemnify and hold harmless each
Underwriter, their respective officers and employees and each person, if
any, who controls any Underwriter within the meaning of the Act, from and
against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of Offered
Securities), to which that Underwriter, officer, employee or controlling
person may become subject, under the Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon:
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus or in any
amendment or supplement thereto, or the omission or alleged omission to
state in the Prospectus or in any amendment or supplement thereto, any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and shall reimburse each Underwriter,
and each such officer, employee or controlling person promptly upon demand
for any legal or other expenses reasonably incurred by that Underwriter,
officer, employee or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim damage,
liability or action as such expenses are incurred; provided, however, that
the Company, or, in the case of Offered Debt Securities, the Issuers, shall
not be liable in any such case to the extent that any such loss, claim,
damage, liability, or action arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made
in the Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
concerning such Underwriter furnished to the Company, or, in the case of
Offered Debt Securities, the Issuers, by any Representatives by or on
behalf of any Underwriter specifically for inclusion therein; provided
further that the Company, or, in the case of Offered Debt Securities, the
Issuers, shall not be liable to any Underwriter under the indemnity
agreement in this paragraph 6(a) with respect to the Prospectus to the
extent that any such loss, claim, damage or liability of such Underwriters
results from the fact that such Underwriter sold Offered Securities to a
person as to whom there was not sent or given, at or prior to written
confirmation of such sale, a copy of the Prospectus as then amended or
supplemented if the Company, or, in the case of Offered Debt Securities,
the Issuers, had previously furnished copies thereof in the quantity
requested and in a timely manner in accordance with Section 3(c) hereof to
such Underwriter and the loss, claim, damage or liability of such
Underwriter results from an untrue statement or omission of a material fact
contained in the Registration Statement and corrected in the Prospectus as
amended or supplemented.
(b) Each Underwriter, severally and not jointly, shall indemnify
and hold harmless the Company, or, in the case of Offered Debt Securities,
the Issuers, its or their officers who sign the Registration Statement,
each of its or their directors (including any person who, with his or her
consent, is named in the Registration Statement or the Prospectus as about
to become a director of the Company, or, in the case of Offered Debt
Securities, the Issuers), and each person, if any, who controls the
Company, or, in the case of Offered Debt Securities, the Issuers, within
the meaning of the Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Company, or, in the case of Offered Debt Securities, the Issuers, or any
such director, officer or controlling person may become subject, under the
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
Prospectus or in any amendment or supplement thereto or (ii) the omission
or alleged omission to state in the Registration Statement or the
Prospectus, or in any amendment or
16
supplement thereto, any material fact required to be stated therein or
necessary to make the statements therein not misleading, but in each case
only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with written information concerning such Underwriter furnished to the
Company, or, in the case of Offered Debt Securities, the Issuers, through
the Representatives by or on behalf of that Underwriter specifically for
inclusion therein, and shall reimburse the Company, or, in the case of
Offered Debt Securities, the Issuers, and any such director, officer or
controlling person for any legal or other expenses reasonably incurred by
the Company, or, in the case of Offered Debt Securities, the Issuers, or
any such director, officer or controlling person in connection with
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability which any
Underwriter may otherwise have to the Company, or, in the case of Offered
Debt Securities, the Issuers, or any such director, officer, employee or
controlling person.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of any claim or the commencement of
any action, the indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify the
indemnifying party in writing of the claim or the commencement thereof;
provided, however, that the failure to notify the indemnifying party shall
not relieve it from any liability which it may have under this section
except to the extent it has been materially prejudiced by such failure, and
provided further, that the failure to notify the indemnifying party shall
not relieve it from any liability which it may have to an indemnified party
other wise than under such subsection. In case any such claim or action
shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any
other similarly notified indemnifying party, to assume the defense thereof,
with counsel reasonably satisfactory to the indemnified party. After notice
from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party shall
not be liable to the indemnified party under such subsection for any legal
or other expenses, subsequently incurred by the indemnified party, in
connection with the defense thereof; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have in good faith
reasonably concluded that there may be defenses available to it which are
different from or additional to those available to the indemnifying party
or if the interests of the indemnified party may be deemed to conflict with
the interests of the indemnifying party, the indemnified party shall have
the right to select a separate counsel in the defense of such action, with
the expenses and fees of such separate counsel and other expenses related
to such participation to be reimbursed by the indemnifying party as
incurred; provided further that in no event shall the foregoing proviso
require the indemnifying party to bear the fees and expenses of more than
one separate counsel, in addition to local counsel, for each of the
following classes of parties hereto: (i) the Representatives and those
other Underwriters and their respective officers, employees and controlling
persons who may be subject to liability arising out of any claim in respect
of which indemnity may be sought under this Section 6 and (ii) the Company
and its subsidiaries, or, in the case of Offered Debt Securities, the
Issuers. No indemnifying party shall (i) without the prior written consent
of the indemnified parties (which consent shall not be unreasonably
withheld), 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, or (ii) be
liable for any settlement of any such action effected without its written
consent (which consent shall not be unreasonably withheld), but if settled
with the consent of the indemnifying party or if there be a final judgment
of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss
or liability by reason of such settlement or judgment to the extent
provided in this Section 6.
(d) If the indemnification provided for in this Section 6 shall
for any reason be unavail-
17
able to or insufficient (other than by reason of the exceptions provided
therein) to hold harmless an indemnified party under subsection (a) or (b)
above in respect of any loss, claim, damage or liability, or any action in
respect thereof, referred to therein, then each indemnifying party shall,
in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim,
damage or liability or action in respect thereof, (i) in such proportion as
shall be appropriate to reflect the relative benefits received by each
party to the Terms Agreement from the offering of the Offered Securities or
(ii) if the allocation provided by the clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of each party to the
Terms Agreement with respect to the statements or omissions which resulted
in such loss, claim, damage or liability, or action in respect thereof, as
well as any other relevant equitable considerations. The relative benefits
received by the Company, or, in the case of Offered Debt Securities, the
Issuers, and the Underwriters with respect to such offering shall be deemed
to be in the same proportion as the total net proceeds from the offering of
the Offered Securities purchased under this Agreement (before deducting
expenses) received by the Company, or, in the case of Offered Debt
Securities, the Issuers, and the total underwriting discounts and
commissions received by the Underwriters with respect to the Offered
Securities purchased under the Terms Agreement as set forth in the table on
the cover page of the Prospectus, bear to the sum of the total proceeds
from the sale of the Offered Securities (before deducting expenses) in the
offering. The relative fault 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, in the case of Offered Debt
Securities, the Issuers, or the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, or, in the case of Offered
Debt Securities, the Issuers, and the Underwriters agree that it would not
be just and equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation or by any other method of allocation
which does not take into account of the equitable considerations referred
to herein. The amount paid or payable by an indemnified party as a result
of the loss, claim, damage or liability or action in respect thereof,
referred to above in this subsection (d) shall be deemed to include 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 subsection (d), no Underwriter shall
be required to contribute any amount in excess of the amount by which the
total price at which the Offered Securities underwritten by it and
distributed to the public was offered to the public, exceeds the amount of
any damages which such Underwriter, as the case may be, has otherwise been
required to pay or become liable 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
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Underwriters' obligations in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) As used herein, the phrase "actual knowledge" means, with
respect to any natural person, the actual knowledge of such person and,
with respect to any other person, the actual knowledge of any natural
person exercising control (whether by ownership or management) over such
person, and shall not imply any duty to investigate or be deemed to include
any knowledge that might have become actually known following
investigation. The phrase "actually known" shall have a correlative
meaning.
(f) The obligations of the Company, or, in the case of Offered
Debt Securities, the Issuers, under this Section 6 shall be in addition to
any liability which the Company, or, in the case of Offered Debt
Securities, the Issuers, may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; the obligations of the Underwriters under
this Section 6 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company, or, in the case of
Offered Debt Securities, of the Issuers, (including any person who, with
his or her consent, is named in the Registration Statement or the
Prospectus as about to become a
18
director of the Company or, in the case of Offered Debt Securities, the
Issuers), and to each person, if any, who controls the Company, or, in the
case of Offered Debt Securities, the Issuers, within the meaning of the
Act.
7. Defaulting Underwriters.
(a) If any Underwriter shall default in its obligation to
purchase the Offered Securities which it has agreed to purchase under the
Terms Agreement, at the Time of Delivery, the Representatives may in their
discretion arrange for the Representatives or another party or other
parties to purchase such Offered Securities on the terms contained herein.
If within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Offered Securities,
then the Company, or, in the case of Offered Debt Securities, the Issuers,
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties reasonably satisfactory to the
Representatives to purchase such Offered Securities on such terms. In the
event that, within the respective prescribed periods, the Representatives
notify the Company, or, in the case of Offered Debt Securities, the
Issuers, that they have so arranged for the purchase of such Offered
Securities, or the Company notifies, or, in the case of Offered Debt
Securities, the Issuers notify, the Representatives that it has or they
have so arranged for the purchase of such Offered Securities, the
Representatives or the Company, or, in the case of Offered Debt Securities,
the Issuers, shall have the right to postpone the Time of Delivery for a
period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus,
or in any other documents or arrangements, and the Company agrees, or, in
the case of Offered Debt Securities, the Issuers agree, to file promptly
any amendments to the Registration Statement or the Prospectus which in the
opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Offered
Securities.
(b) If, after giving effect to any arrangements for the purchase
of the Offered Securities of a defaulting Underwriter or Underwriters by
the Representatives and the Company, or, in the case of Offered Debt
Securities, the Issuers, as provided in subsection (a) above, the aggregate
number of such Offered Securities which remains unpurchased does not exceed
one-tenth of the aggregate principal amount or gross proceeds, as
applicable, of all the Offered Securities to be purchased at such Time of
Delivery, then the Company, or, in the case of Offered Debt Securities, the
Issuers, shall have the right to require each non-defaulting Underwriter to
purchase the number of Offered Securities which such Underwriter agreed to
purchase under the Terms Agreement at such Time of Delivery and, in
addition, to require each non-defaulting Underwriter to purchase its pro
rata share (based on the number of Offered Securities which such
Underwriter agreed to purchase under the Terms Agreement) of the Offered
Securities of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Offered Securities of a defaulting Underwriter or Underwriters by
the Representatives and the Company, or, in the case of Offered Debt
Securities, the Issuers, as provided in subsection (a) above, the aggregate
principal amount or gross proceeds, as applicable, of Offered Securities
which remains unpurchased exceeds one-tenth of the aggregate principal
amount or gross proceeds, as applicable, of all the Offered Securities, or
if the Company, or, in the case of Offered Debt Securities, the Issuers,
shall not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Offered Securities of a defaulting
Underwriter or Underwriters, then this Agreement shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter, the
Company, or, in the case of Offered Debt Securities, the Issuers, except
for the expenses to be borne by the Company, or, in the case of Offered
Debt Securities, the Issuers, and the Underwriters as provided in Section 5
hereof and the indemnity and contribution agreements in Section 6 hereof;
but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
19
8. Survival. The respective indemnities, agreements,
representations, warranties and other statements of the Company, or, in the
case of Offered Debt Securities, the Issuers, and the several Underwriters,
as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement and the Terms Agreement, shall
remain in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of any
Underwriter or any controlling person of any Underwriter or the Company,
or, in the case of Offered Debt Securities, the Issuers, or any officer or
director or controlling person of the Company, or, in the case of Offered
Debt Securities, the Issuers, and shall survive delivery of and payment for
the Offered Securities.
9. Reimbursement of Underwriting Expenses. If this Agreement
shall be terminated pursuant to Section 7 hereof, neither the Company, or,
in the case of Offered Debt Securities, the Issuers, shall then be under
any liability to any Underwriter except as provided in Sections 5 and 6
hereof; but, if for any other reason, the Offered Securities are not
delivered by or on behalf of the Company, or, in the case of Offered Debt
Securities, the Issuers, as provided herein, the Company, or, in the case
of Offered Debt Securities, the Issuers, will reimburse the Underwriters
through the Representatives for all out-of-pocket expenses approved in
writing by the Representatives, including fees and disbursements of
counsel, reason ably incurred by the Underwriters in making preparations
for the purchase, sale and delivery of the Offered Securities not so
delivered, but the Company, or, in the case of Offered Debt Securities, the
Issuers, shall then be under no further liability to any Underwriter except
as provided in and Sections 5 and 6 hereof.
10. Notices, etc. In all dealings hereunder and under the Terms
Agreement, the Representatives shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon
any statement, request, notice or agreement on behalf of any Underwriter
made or given by the Representatives jointly or by the Lead Underwriter on
behalf of the Representatives.
All statements, requests, notices, and agreements hereunder and
under the Terms Agreement shall be in writing, and if to the Underwriters
shall be delivered or sent by mail, telex or fac simile transmission to the
Representatives at the address specified in the Terms Agreement; and if to
the Company, or, in the case of Offered Debt Securities, to the Issuers,
shall be delivered or sent by mail, telex or facsimile transmission to the
address of the Company set forth in the Registration Statement, Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 6(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or which address will be supplied to the
Company, or, in the case of Offered Debt Securities, the Issuers, by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof. The Company, or, in the
case of Offered Debt Securities, the Issuers, shall be entitled to act and
rely upon any request, consent, notice or agreement given or made on behalf
of the Underwriters by any of the Representatives.
11. Persons Entitled to Benefit of Agreement. This Agreement and
the Terms Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company or, in the case of Offered Debt
Securities, the Issuers, to the extent provided in Sections 6 and 8 hereof,
the officers and directors of the Company, or, in the case of Offered Debt
Securities, the Issuers, and each person who controls the Company, or, in
the case of Offered Debt Securities, the Issuers, any Underwriter, and
their respective heirs, executors, administrators, successors and assigns,
and no other person shall acquire or have any right under or by virtue of
this Agreement. No purchaser of any of the Offered Securities from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
12. Time of the Essence. Time shall be of the essence of this
Agreement and the Terms Agreement. As used herein, the term "business day"
shall mean any day on which the New York Stock Exchange, Inc. is open for
trading.
13. Governing Law. This Agreement and the Terms Agreement shall
be governed by and
20
construed in accordance with the laws of the State of New York without
giving effect to any provisions relating to conflicts of law.
14. Counterparts. This Agreement and the Terms Agreement may be
executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
15. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
Very truly yours,
▇▇▇▇▇ APPAREL GROUP, INC.,
By:
Name:
----------------------------
Title:
▇▇▇▇▇ APPAREL GROUP HOLDINGS, INC.,
By:
Name:
----------------------------
Title:
▇▇▇▇▇ APPAREL GROUP USA, INC.,
By:
Name:
----------------------------
Title:
NINE WEST GROUP INC.,
By:
Name:
----------------------------
Title: