Exhibit 10.1
EXECUTION COPY
LEVI STRAUSS &
CO.
$380,000,000 Floating Rate Senior Notes due
2012
€150,000,000 8-5/8% Senior Notes due
2013
PURCHASE AGREEMENT
March 7, 2005
BANC OF AMERICA SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
J.P. MORGAN SECURITIES INC.
GOLDMAN, SACHS & CO.
SCOTIA CAPITAL (USA) INC.
BEAR, STEARNS & CO. INC.
CREDIT SUISSE FIRST BOSTON LLC
As Representatives of the Several Floating Rate
Notes Purchasers
c/o Banc of America Securities
LLC
9 West 57th Street
New York, New York 10019
BANC OF AMERICA SECURITIES LIMITED
CITIGROUP GLOBAL MARKETS LIMITED
J.P. MORGAN SECURITIES LTD.
GOLDMAN, SACHS & CO.
SCOTIA CAPITAL INC.
BEAR, STEARNS & CO. INC.
CREDIT SUISSE FIRST BOSTON (EUROPE)
LIMITED
As Representatives of the Several Euro Notes
Purchasers
c/o Banc of America Securities
Limited
5 Canada Square
London E14 5AQ
United Kingdom
Ladies and Gentlemen:
Levi Strauss & Co., a
corporation organized under the laws of Delaware (the
“Company”), proposes to issue and sell (i) to the
several parties named in Schedule I hereto (the “Floating
Rate Notes Purchasers”), $380,000,000 principal amount of its
Senior Notes due 2012 (the “Floating Rate Notes”) and
(ii) to the several parties named in Schedule II hereto (the
“Euro Notes Purchasers” and, together with the Floating
Rate Notes Purchasers, the “Initial Purchasers”),
€150,000,000 principal amount of its Senior Notes due 2013
(the “Euro Notes” and, together with the Floating Rate
Notes, the
“Notes”). You are acting as the
representatives (the “Representatives”) of the Floating
Rate Notes Purchasers and/or the Euro Notes Purchasers as indicated
above. The Floating Rate Notes are to be issued under an indenture
to be dated as of the Closing Date (the “Floating Rate Notes
Indenture”) between the Company and Wilmington Trust Company,
as trustee (the “Floating Rate Notes Trustee”), and
will have the benefit of a registration rights agreement dated as
of the Closing Date (the “Floating Rate Notes Registration
Rights Agreement”) between the Company and the Floating Rate
Notes Purchasers pursuant to which the Company will agree to
register the Floating Rate Notes under the Act subject to the terms
and conditions therein specified; and the Euro Notes are to be
issued under an indenture dated as of the Closing Date (the
“Euro Notes Indenture” and, together with the Floating
Rate Notes Indenture, the “Indentures”) between the
Company and Wilmington Trust Company, as trustee (the “Euro
Notes Trustee” and, together with the Floating Rate Notes
Trustee, the “Trustees”), and will have the benefit of
a registration rights agreement dated as of the Closing Date (the
“Euro Notes Registration Rights Agreement” and,
together with the Floating Rate Notes Registration Rights
Agreement, the “Registration Rights Agreements”)
between the Company and the Euro Notes Purchasers pursuant to which
the Company will agree to register the Euro Notes under the Act
subject to the terms and conditions therein specified. The use of
the neuter in this Agreement shall include the feminine and
masculine wherever appropriate. Certain terms used herein are
defined in Section 17 hereof.
The sale of the Floating Rate Notes
to the Floating Rate Notes Purchasers and the Euro Notes to the
Euro Notes Purchasers will be made without registration of the
Floating Rate Notes or the Euro Notes under the Act in reliance
upon exemptions from the registration requirements of the
Act.
In connection with the sale of the
Notes, the Company has prepared a preliminary offering memorandum,
dated February 24, 2005 (as amended or supplemented at the
Execution Time, including any and all exhibits thereto and any
information incorporated by reference therein, the
(“Preliminary Offering Memorandum”), and a final
offering memorandum, dated March 7, 2005 (as amended or
supplemented at the Execution Time, including any and all exhibits
thereto and any information incorporated by reference therein, the
“Final Offering Memorandum”). Each of the Preliminary
Offering Memorandum and the Final Offering Memorandum sets forth
certain information concerning the Company and the Notes. The
Company hereby confirms that it has authorized the use of the
Preliminary Offering Memorandum and the Final Offering Memorandum,
and any amendment or supplement thereto, in connection with the
offer and sale of the Notes by the Initial Purchasers. Unless
stated to the contrary, references herein to the Final Offering
Memorandum at the Execution Time are not meant to include any
information incorporated by reference therein subsequent to the
Execution Time, and any references herein to the terms
“amend”, “amendment” or
“supplement” with respect to the Final Offering
Memorandum shall be deemed to refer to and include any information
filed under the Exchange Act subsequent to the Execution Time which
is incorporated by reference therein.
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1. Representations and
Warranties. The Company represents and warrants to each Initial
Purchaser as set forth below in this Section 1.
(a) The Preliminary Offering
Memorandum, at the date thereof, did not contain any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. At the
Execution Time and on the Closing Date (as defined in Section 3
hereof), the Final Offering Memorandum did not, and will not (and
any amendment or supplement thereto, at the date thereof and at the
Closing Date will not), contain any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided , however ,
that the Company makes no representation or warranty as to the
information contained in or omitted from the Preliminary Offering
Memorandum or the Final Offering Memorandum, or any amendment or
supplement thereto, in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of
the Initial Purchasers through the Representatives specifically for
inclusion therein.
(b) All documents filed by the
Company under the Exchange Act (the “Exchange Act
Documents”), when they were filed with the Commission,
complied as to form in all material respects with the requirements
of the Exchange Act, and the rules and regulations of the
Commission thereunder, and, when they were so filed, did not
contain any untrue statement of material fact or omit to state any
material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not
misleading.
(c) Neither the Company, nor any of
its Affiliates, nor any person acting on its or their behalf (other
than the Initial Purchasers, as to whom the Company makes no
representations) has, directly or indirectly, made offers or sales
of any security, or solicited offers to buy any security, under
circumstances that would require the registration of the Notes
under the Act.
(d) Neither the Company, nor any of
its Affiliates, nor any person acting on its or their behalf (other
than the Initial Purchasers, as to whom the Company makes no
representations) has engaged in any form of general solicitation or
general advertising (within the meaning of Regulation D) in
connection with any offer or sale of the Notes in the United
States.
(e) The Notes satisfy the
eligibility requirements of Rule 144A(d)(3) under the
Act.
(f) Neither the Company, nor any of
its Affiliates, nor any person acting on its or their behalf (other
than the Initial Purchasers, as to whom the Company makes no
representations) has engaged in any directed selling efforts with
respect to the Notes, and each of them has complied with the
offering restrictions requirements of Regulation S. Terms used in
this paragraph have the meanings given to them by Regulation
S.
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(g) The Company will use its best
efforts to cause both the Floating Rate Notes and the Euro Notes to
be listed on the Luxembourg Stock Exchange.
(h) The Company is not, and after
giving effect to the offering and sale of the Notes and the
application of the proceeds thereof as described in the Final
Offering Memorandum will not be, an “investment
company” within the meaning of the Investment Company Act,
without taking account of any exemption arising out of the number
of holders of the Company’s Notes.
(i) The Company is subject to and in
full compliance with the reporting requirements of Section 13 and
Section 15(d) of the Exchange Act.
(j) The Company has not paid or
agreed to pay to any person any compensation for soliciting another
to purchase any Notes of the Company (except as contemplated by
this Agreement and the tender offer and consent solicitation for
the Company’s dollar-denominated 11-5/8% Notes due 2008 and
the Company’s euro-denominated 11-5/8% Notes due 2008
(collectively, the “11-5/8% Notes”).
(k) The Company has not taken,
directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result
in, under the Exchange Act or otherwise, the stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Notes.
(l) Each of the Company and its
subsidiaries has been duly incorporated or organized and is validly
existing as a corporation or other valid legal entity in good
standing under the laws of the jurisdiction in which it is
chartered or organized with full corporate or company power and
authority to own or lease, as the case may be, and to operate its
properties and conduct its business as described in the Final
Offering Memorandum, and is duly qualified to do business as a
foreign corporation or other valid legal entity and is in good
standing under the laws of each jurisdiction which requires such
qualification, except in jurisdictions in which the failure to be
so qualified or to be in good standing has not had and would not
reasonably be expected to have a Material Adverse Effect. For
purposes of this Agreement, a “Material Adverse Effect”
shall mean a material adverse effect on, or a material adverse
change in, the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its
subsidiaries, taken as a whole.
(m) All the outstanding shares of
capital stock of each subsidiary have been duly and validly
authorized and issued and are fully paid and nonassessable, and,
except as otherwise set forth in the Final Offering Memorandum and
other than the Company’s subsidiaries in Japan and Turkey,
all outstanding shares of capital stock of the subsidiaries are
owned by the Company either directly or through wholly owned
subsidiaries free and clear of any perfected security interest or
any other security interests, claims, liens or
encumbrances.
(n) The Company’s authorized
equity capitalization is as set forth in the Final Offering
Memorandum, and the Voting Trust Agreement entered into as
of
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April 15, 1996, among the Voting Trustees and
stockholders of the Company conforms in all material respects to
the description thereof contained in the Final Offering
Memorandum.
(o) The statements in the Final
Offering Memorandum under the headings “Important U.S.
Federal Income Tax Considerations”, “Description of
Notes”, “Exchange Offer; Registration Rights”,
“Risk Factors—Risks Relating to Our Business—Our
success depends on the continued protection of our trademarks and
other proprietary intellectual property rights”, and in the
Company’s Annual Report on Form 10-K for the fiscal year
ended November 28, 2004 (the “2004 10-K”) under the
headings “Business —Trademarks”,
“Business—Government Regulation” and “Legal
Proceedings” insofar as such statements summarize legal
matters, agreements, documents or proceedings discussed therein,
are, in all material respects, accurate and fair summaries of such
legal matters, agreements, documents or proceedings.
(p) This Agreement has been duly
authorized, executed and delivered by the Company; each of the
Floating Rate Notes Indenture and the Euro Notes Indenture has been
duly authorized and, assuming due authorization, execution and
delivery thereof by the Floating Rate Notes Trustee or the Euro
Notes Trustee, as applicable, when executed and delivered by the
Company, will constitute a legal, valid and binding instrument
enforceable against the Company in accordance with its terms
(subject, as to the enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors’ rights generally from time to time in
effect and to general principles of equity); the Notes have been
duly authorized, and, when executed and authenticated in accordance
with the provisions of the Floating Rate Notes Indenture or the
Euro Notes Indenture, as applicable, and delivered to and paid for
by the Initial Purchasers, will have been duly executed and
delivered by the Company and will constitute the legal, valid and
binding obligations of the Company entitled to the benefits of the
applicable Indenture (subject, as to the enforcement of remedies,
to applicable bankruptcy, insolvency, moratorium or other laws
affecting creditors’ rights generally from time to time in
effect and to general principles of equity); and each of the
Registration Rights Agreements has been duly authorized, executed
and delivered by the Company and, assuming due authorization,
execution and delivery thereof by the other parties thereto,
constitutes a legal, valid and binding instrument enforceable
against the Company in accordance with its terms (subject, as to
the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors’ rights generally from time to time in effect and
to general principles of equity).
(q) No consent, approval,
authorization, filing with or order of any court or governmental
agency or body is required in connection with the transactions
contemplated herein or in the Indentures or the Registration Rights
Agreements, except such as will be obtained under the Act and the
Trust Indenture Act in connection with the transactions
contemplated by the Registration Rights Agreements and such as may
be required under the blue sky or securities laws of any
jurisdiction in connection with the transactions contemplated by
this Agreement and the Registration Rights Agreements.
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(r) Neither the execution and
delivery of the Floating Rate Notes Indenture, the Euro Notes
Indenture, this Agreement or the Registration Rights Agreements,
the issue and sale of the Notes, nor the consummation of any other
of the transactions herein or therein contemplated, nor the
fulfillment of the terms hereof or thereof will conflict with,
result in a breach or violation of, or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to, (i) the charter or by-laws of
the Company or any of its subsidiaries; (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or any of
its subsidiaries is a party or bound or to which any of their
respective properties is subject; or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or
any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority of the United States or any state thereof having
jurisdiction over the Company, any of its subsidiaries or any of
their respective properties or to the Company’s knowledge,
any statute, law, rule, regulation, judgment, order or decree
applicable to the Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body,
arbitrator or other authority outside of the United States having
jurisdiction over the Company, any of its subsidiaries or any of
their respective properties, except, with respect to (x) clause
(ii) and (y) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority outside of the United States
described in clause (iii) as to which the Company has no knowledge,
for conflicts, violations, breaches or impositions that would not
reasonably be expected to have a Material Adverse
Effect.
(s) The consolidated historical
financial statements and schedules of the Company and its
consolidated subsidiaries included in the Final Offering Memorandum
or the Exchange Act Documents present fairly in all material
respects the financial condition, results of operations and cash
flows of the Company as of the dates and for the periods indicated,
comply as to form with the applicable accounting requirements of
the Act and the Exchange Act and have been prepared in conformity
with generally accepted accounting principles applied on a
consistent basis throughout the periods involved (except as
otherwise noted therein); and the selected financial data set forth
under the caption “Selected Historical Consolidated Financial
Data” in the Final Offering Memorandum fairly present, on the
basis stated in the Final Offering Memorandum, the information
included therein. Arthur Andersen LLP audited the financial
statements of the Company as of and for the fiscal year ended
November 26, 2000. The Company has prepared restated financial
statements (the “Restated Financial Statements”) for
such fiscal year. The Restated Financial Statements were prepared
on a basis consistent with the restated financial statements of the
Company as of and for the fiscal years ended November 25, 2001 and
November 24, 2002 audited by KPMG LLP. All financial data as of and
for the fiscal year ended November 26, 2000 included in the Final
Offering Memorandum have been derived from, and are in agreement
with, the Restated Financial Statements.
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(t) No action, suit or proceeding by
or before any court or governmental agency, authority or body or
any arbitrator involving the Company or any of its subsidiaries or
its or their property is pending or, to the best knowledge of the
Company, threatened that (i) could reasonably be expected to have a
material adverse effect on the performance of this Agreement, the
Indentures or the Registration Rights Agreements, or the
consummation of any of the transactions contemplated hereby or
thereby; or (ii) could reasonably be expected to have a Material
Adverse Effect, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated
in the Final Offering Memorandum (exclusive of any amendment or
supplement thereto).
(u) The Company and each of its
subsidiaries own, lease or license all such properties as are
necessary to the conduct of their respective operations as
presently conducted.
(v) Neither the Company nor any
subsidiary is in violation or default of (i) any provision of its
charter or bylaws; (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to
which it is a party or bound or to which its property is subject;
or (iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company
or such subsidiary or any of its properties, as applicable, other
than such violations or defaults the occurrence of which would not
reasonably be expected to have a Material Adverse Effect, whether
or not arising from the transactions in the ordinary course of
business.
(w) KPMG LLP, who have reviewed
certain financial statements of the Company and its consolidated
subsidiaries included in the Exchange Act Documents that are part
of the Final Offering Memorandum, are independent registered public
accountants with respect to the Company within the meaning of the
Act and the applicable published rules and regulations thereunder.
Arthur Andersen LLP, who has previously certified certain financial
statements of the Company and its consolidated subsidiaries and
previously delivered their report with respect to the audited
consolidated financial statements and schedules included in the
Final Offering Memorandum or the Exchange Act Documents, were at
all times during their engagement by the Company independent public
accountants with respect to the Company within the meaning of the
Act and the applicable published rules and regulations
thereunder.
(x) To the Company’s
knowledge, there are no material stamp or other issuance or
transfer taxes or duties or other material similar fees or charges
required to be paid in connection with the execution and delivery
of this Agreement or the issuance or sale by the Company of the
Notes.
(y) The Company has filed all
foreign, federal, state and local tax returns that are required to
be filed or has requested extensions thereof (except in any case in
which the failure so to file would not have a Material Adverse
Effect, whether or
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not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Final Offering Memorandum (exclusive of any amendment or supplement
thereto) and has paid all taxes required to be paid by it and any
other assessment, fine or penalty levied against it, to the extent
that any of the foregoing is due and payable, except for any such
tax or other assessment, fine or penalty that is currently being
contested in good faith or as would not have a Material Adverse
Effect, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Final Offering Memorandum (exclusive of any amendment or supplement
thereto).
(z) No labor problem or dispute with
the employees of the Company or any of its subsidiaries exists or
is threatened or imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of
its or its subsidiaries’ principal suppliers, contractors or
customers that in any such case could have a Material Adverse
Effect, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Final Offering Memorandum (exclusive of any amendment or supplement
thereto).
(aa) The Company and each of its
subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as
are reasonable and customary in the businesses in which they are
engaged; all policies of insurance and fidelity or surety bonds
insuring the Company or any of its subsidiaries or their respective
businesses, assets, employees, officers and directors are in full
force and effect, except when the failure to be in full force and
effect would not have a Material Adverse Effect; the Company and
its subsidiaries are in compliance with the terms of such policies
and instruments in all material respects; except as would not have
a Material Adverse Effect, there are no claims by the Company or
any of its subsidiaries under any such policy or instrument as to
which any insurance company is denying liability or defending under
a reservation of rights clause; and neither the Company nor any
such subsidiary has any reason to believe that it will not be able
to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business at a cost that would not have
a Material Adverse Effect, whether or not arising from transactions
in the ordinary course of business, except as set forth in or
contemplated in the Final Offering Memorandum (exclusive of any
amendment or supplement thereto).
(bb) No subsidiary of the Company is
currently contractually prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other
distribution on such subsidiary’s capital stock, from
repaying to the Company any loans or advances to such subsidiary
from the Company or from transferring any of such
subsidiary’s property or assets to the Company or any other
subsidiary of the Company, except as described in or contemplated
by (i) the Final Offering Memorandum, (ii) the Company’s
Credit Agreement dated as of September 29, 2003, among the Company,
Levi Strauss Financial Center Corporation, the financial
institutions listed on the signature pages thereto and Bank of
America, N.A., as agent, as amended on September 30, 2003, October
14, 2003, March 18, 2004, August 13, 2004 and November 24, 2004 and
including the limited waiver dated as of February 15,
2005
8
granted to the Company with respect to such
agreement (the “Revolving Credit Facility”), and (iii)
the Company’s Credit Agreement dated as of September 29,
2003, among the Company, the lender’s party thereto and Bank
of America, N.A., as administrative agent, as amended on August 30,
2004 (the “Term Loan Facility” and, together with the
Revolving Credit Facility, the “Existing Bank Credit
Facilities”).
(cc) The Company and its
subsidiaries possess all licenses, certificates, permits and other
authorizations issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective
businesses, other than such licenses, certificates, permits or
other authorizations, the failure of which to possess would not
have a Material Adverse Effect, and neither the Company nor any
such subsidiary has received any notice of proceedings relating to
the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect, whether or not arising from transactions
in the ordinary course of business, except as set forth in or
contemplated in the Final Offering Memorandum (exclusive of any
amendment or supplement thereto).
(dd) The Company and each of its
subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or
specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; and (iii) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect
to any differences. The Company maintains disclosure controls and
procedures (as such term is defined in Rule 13a-14 under the
Exchange Act) that are effective in ensuring that information
required to be disclosed by the Company in the reports that it
files or submits under the Exchange Act is recorded, processed,
summarized and reported, within the time periods specified in the
rules and forms of the Securities and Exchange Commission,
including, without limitation, controls and procedures designed to
ensure that information required to be disclosed by the Company in
the reports that it files or submits under the Exchange Act is
accumulated and communicated to the Company’s management,
including its principal executive officer or officers and its
principal financial officer or officers, as appropriate to allow
timely decisions regarding required disclosure.
(ee) In the ordinary course of its
business, the Company periodically reviews the effect of applicable
foreign, federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”) on the business, operations and
properties of the Company and its subsidiaries, in the course of
which it identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or
compliance with Environmental Laws, or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties); on the basis of such
review, the Company has reasonably concluded that such
associated
9
costs and liabilities would not, singly or in
the aggregate, have a Material Adverse Effect, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Final Offering
Memorandum (exclusive of any amendment or supplement
thereto).
(ff) Except as would not have a
Material Adverse Effect, each of the Company and its subsidiaries
has fulfilled its obligations, if any, under the minimum funding
standards of Section 302 of the United States Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), and
the regulations and published interpretations thereunder with
respect to each “plan” (as defined in Section 3(3) of
ERISA and such regulations and published interpretations) in which
employees of the Company and its subsidiaries are eligible to
participate and each such plan is in compliance in all material
respects with the presently applicable provisions of ERISA and such
regulations and published interpretations; the Company and its
subsidiaries have not incurred any unpaid liability to the Pension
Benefit Guaranty Corporation (other than for the payment of
premiums in the ordinary course) or to any such plan under Title IV
of ERISA.
(gg) The subsidiaries listed on
Annex A attached hereto are the only significant subsidiaries of
the Company as defined by Rule l-02 of Regulation S-X under the Act
(the “Subsidiaries”).
(hh) The Company and its
subsidiaries own, possess, license or have other rights to use, on
reasonable terms, all patents, patent applications, trade and
service marks (including the Levi’s ® , Dockers ® and Levi Strauss Signature
™
trademarks), trade and service mark
registrations, trade names, copyrights, licenses, inventions, trade
secrets, technology, know-how and other intellectual property
(collectively, the “Intellectual Property”) necessary
for the conduct of the Company’s business as now conducted
free and clear of any material security interests, claims, liens or
encumbrances, except as would not have a Material Adverse Effect or
as set forth in or contemplated in (i) the Final Offering
Memorandum (exclusive of any amendment or supplement thereto) or
(ii) the Existing Bank Credit Facilities, and none of the
Intellectual Property, to the best knowledge of the Company,
conflicts with the valid trademark, trade name, copyright, patent,
patent right or intangible asset of any other Person to the extent
that such conflict has or would have a Material Adverse
Effect.
(ii) Except as would not have a
Material Adverse Effect, none of the Company, its subsidiaries or,
to the knowledge of the Company, any director, officer, agent,
employee or Affiliate of the Company or any of its subsidiaries is
aware of or has taken any action, directly or indirectly, that
would result in a violation by such Persons of the Foreign Corrupt
Practices Act of 1977, as amended, and the rules and regulations
thereunder (the “FCPA”), including, without limitation,
making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment,
promise to pay or authorization of the payment of any money, or
other property, gift, promise to give, or authorization of the
giving of anything of value to any “foreign official”
(as such term is defined in the FCPA) or any foreign political
party or official thereof or any candidate for foreign political
office, in contravention of the
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FCPA; and except as would not have a Material
Adverse Effect, the Company, its subsidiaries and, to the knowledge
of the Company, its Affiliates have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies
and procedures designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance
therewith.
(jj) Except as would not have a
Material Adverse Effect, the operations of the Company and its
subsidiaries are and have been conducted at all times in compliance
with applicable financial recordkeeping and reporting requirements
of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all jurisdictions, the
rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Money Laundering
Laws”) and except as would not have a Material Adverse
Effect, no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
the Company or any of its subsidiaries with respect to the Money
Laundering Laws is pending or, to the knowledge of the Company,
threatened.
(kk) Except as disclosed in the
Final Offering Memorandum, there is and has been no failure on the
part of the Company and any of the Company’s directors or
officers, in their capacities as such, to comply with any provision
of the Sarbanes- Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith, including Section 402 related
to loans and Sections 302 and 906 related to
certifications.
(ll) None of the Company, any of its
subsidiaries or, to the knowledge of the Company, any director,
officer, agent, employee or Affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S.
Department of the Treasury (“OFAC”); and the Company
will not directly or indirectly use the proceeds of the offering of
the Notes hereunder, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner
or, to its knowledge, any other person or entity, for the purpose
of financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC.
(mm) Neither the Company, any of its
subsidiaries or, to the knowledge of the Company, any director,
officer, agent, employee or Affiliate of the Company or any of its
subsidiaries has distributed and, prior to the later to occur of
(i) the Closing Date and (ii) the completion of the distribution of
the Notes, will distribute any material referring to the offering
and sale of the Notes other than the Preliminary Offering
Memorandum or the Final Offering Memorandum or other materials, if
any, permitted by the Securities Act and the Financial Services and
Markets Act 2000 (the “FSMA”) (or regulations
promulgated pursuant to the Securities Act or the FSMA).
(nn) Neither the Company nor any
subsidiary has taken any action or omitted to take any action (such
as issuing any press release relating to the Notes without an
appropriate legend) which may result in the loss by any of the
Initial Purchasers of the ability to rely on any stabilization safe
harbour provided under the FSMA. The Company
11
and its subsidiaries have been informed of the
existence (and have received a copy) of the UK Financial Services
Authority’s informational guidance referred to in MAR
2.3.2R(4) of the price stabilizing rules made under Section 144(1)
of the FSMA.
Any certificate signed by any
officer of the Company and delivered to the Representatives or
counsel for the Initial Purchasers in connection with the offering
of the Notes shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Initial
Purchaser.
2. Purchase and Sale. Subject
to the terms and conditions and in reliance upon the
representations and warranties herein set forth:
(a) the Company agrees to sell to
each Floating Rate Notes Purchaser, and each Floating Rate Notes
Purchaser agrees, severally and not jointly, to purchase from the
Company at the purchase price set forth in Schedule III, the
principal amount of Floating Rate Notes set forth opposite such
Floating Rate Notes Purchaser’s name on Schedule I hereto;
and
(b) the Company agrees to sell to
each Euro Notes Purchaser, and each Euro Notes Purchaser agrees,
severally and not jointly, to purchase from the Company at the
purchase price set forth in Schedule III, the principal amount of
Euro Notes set forth opposite such Euro Notes Purchaser’s
name on Schedule II hereto.
3. Delivery and Payment.
Delivery of and payment for the Euro Notes shall be made at 10:00
A.M., London time, and delivery of and payment for the Floating
Rate Notes shall be made at 10:00 A.M., New York City time, on
March 11, 2005, or at such time on such later date (not later than
three Business Days after the foregoing date) as the
Representatives shall designate, which date and time may be
postponed by agreement between the Representatives and the Company
or as provided in Section 9 hereof (such date and time of delivery
and payment for the Notes being herein called the “Closing
Date”). Delivery of the Notes shall be made to the
Representatives for the respective accounts of the several Initial
Purchasers against payment by the several Initial Purchasers
through the Representatives of the purchase price thereof to or
upon the order of the Company by wire transfer payable in same-day
funds to the account specified by the Company. Delivery of the
Floating Rate Notes shall be made through the facilities of The
Depository Trust Company and delivery of the Euro Notes shall be
made through the facilities of the Euroclear System and
Clearstream, Luxembourg, unless the Representatives shall otherwise
instruct.
4. Offering by Initial
Purchasers. Each Initial Purchaser, severally and not jointly,
represents and warrants to and agrees with the Company
that:
(a) It has not offered or sold, and
will not offer or sell, any Floating Rate Notes or Euro Notes, as
applicable, except (i) to those persons it reasonably believes to
be qualified institutional buyers (as defined in Rule 144A under
the Act) and that, in connection with each such sale, it has taken
or will take reasonable steps to ensure that
12
the purchaser
